Kathryn Campbell v. American International Group, et al

Filing

OPINION filed [1505523] PER CURIAM OPINION (Pages: 9) [13-7041]

USCA Case #13-7041

Document #1505523

Filed: 08/01/2014

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided August 1, 2014
No. 13-7041
KATHRYN LYNN CAMPBELL, ON BEHALF OF HERSELF AND
SIMILARLY SITUATED EQUITY UNITS HOLDERS OF AMERICAN
INTERNATIONAL GROUP, INC.,
APPELLANT
v.
AMERICAN INTERNATIONAL GROUP, INC., ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00115)

Wendu Mekbib was on the briefs for appellant.
Robert F. Carangelo, Peter C. Thomas, and Paul C. Curnin
were on the brief for appellees.
Before: GARLAND, Chief Judge, and SRINIVASAN and
PILLARD, Circuit Judges.
Opinion for the Court filed PER CURIAM.

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PER CURIAM: Kathryn Lynn Campbell contends that the
American International Group, Inc. (AIG) and its board of
directors wrongfully reduced the value of certain securities
issued by AIG. The district court dismissed Campbell’s
securities class action for lack of subject matter jurisdiction,
holding that the Securities Litigation Uniform Standards Act of
1998 (SLUSA) does not confer federal jurisdiction over
Campbell’s state-law claims. We agree.*
I.
In 2008, AIG issued 78.4 million “Equity Units,” a type of
security that included a stock purchase contract obligating
holders to purchase AIG common stock. AIG, Annual Report
(Form 10-K) (Fiscal Year 2008). According to Campbell, an
Equity Unit holder, AIG and its directors depleted the
investment value of the Equity Units by improperly reducing the
number of common shares each Equity Unit holder was entitled
to receive. Campbell filed a securities class action in federal
district court on behalf of herself and similarly situated
investors. Her complaint stated claims for unjust enrichment
and breaches of the covenant of good faith and fair dealing
under both Delaware and New York law. Although she alleged
violations of state law, Campbell did not invoke the district
court’s diversity jurisdiction. Instead, she asserted subject
matter jurisdiction principally under SLUSA, codified in
relevant part at 15 U.S.C. §§ 77p(d) and 78bb(f)(3). See
SLUSA, Pub. L. No. 105-353, 112 Stat. 3227 (1998) (codified
as amended at scattered sections of 15 U.S.C.).

*

This case was considered upon the record from the United States
District Court for the District of Columbia and upon the briefs
submitted by the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. R.
34(j).

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AIG moved to dismiss for lack of federal jurisdiction over
Campbell’s state law claims. The district court granted the
motion. Campbell v. AIG, 926 F. Supp. 2d 178 (D.D.C. 2013).
We review the dismissal for lack of subject matter jurisdiction
de novo, Nat’l Air Traffic Controllers Ass’n v. Fed. Serv.
Impasses Panel, 606 F.3d 780, 786 (D.C. Cir. 2010), and we
now affirm.
II.
Campbell’s principal contention, below and on appeal, is
that SLUSA confers federal jurisdiction over her class action.
Congress enacted SLUSA in 1998, closely on the heels of the
Private Securities Litigation Reform Act of 1995 (the Reform
Act), Pub. L. No. 104-67, 109 Stat. 737 (codified as amended at
scattered sections of 15 U.S.C.). See Merrill Lynch, Pierce,
Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 82 (2006). The
Reform Act aimed to curb “perceived abuses of the class-action
vehicle in litigation involving nationally traded securities” by
imposing a number of limitations on federal securities class
actions. Id. at 81. To avoid the “special burdens” associated
with federal securities fraud class actions established by the
Reform Act, plaintiffs “began bringing class actions under state
law, often in state court.” Id. at 82 (emphasis added). Congress
then enacted SLUSA to stem the migration from federal to state
court and “to prevent certain State private securities class action
lawsuits alleging fraud from being used to frustrate the
objectives” of the Reform Act. 112 Stat. at 3227.
SLUSA amends the Securities Act of 1933 and the
Securities Exchange Act of 1934 “in substantially identical
ways.” Dabit, 547 U.S. at 82 n.6; compare 15 U.S.C. § 77p
(codifying amendments to the 1933 Act), with 15 U.S.C. §
78bb(a)(2), (f) (codifying amendments to the 1934 Act). To
simplify the analysis, we, like the district court, focus our
discussion on the amendments to the Securities Act of 1933.

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See Kircher v. Putnam Funds Trust, 547 U.S. 633, 637 n.3
(2006); Dabit, 547 U.S. at 82 n.6. Those amendments begin by
clarifying that, “[e]xcept as provided in subsection (b), the rights
and remedies provided by this title shall be in addition to any
and all other rights and remedies that may exist at law or in
equity.” 112 Stat. at 3227-28 (codified at 15 U.S.C. § 77p(a)).
As a general matter, then, SLUSA leaves state-law claims in
place except as set forth in subsection (b).
Subsection (b) is SLUSA’s “core provision.” Dabit, 547
U.S. at 82. Referred to as the “preclusion provision,” Kircher,
547 U.S. at 636, subsection (b) bars the bringing of certain statelaw securities fraud claims as class actions, in either state or
federal court. It provides:
No covered class action based upon the statutory or
common law of any State or subdivision thereof may
be maintained in any State or Federal court by any
private party alleging—
(1) an untrue statement or omission of a material fact
in connection with the purchase or sale of a covered
security; or
(2) that the defendant used or employed any
manipulative or deceptive device or contrivance in
connection with the purchase or sale of a covered
security.
112 Stat. at 3228 (codified at 15 U.S.C. § 77p(b)). A “covered
class action” refers to a lawsuit seeking damages on behalf of
more than fifty persons. See 15 U.S.C. § 77p(f)(2). A “covered
security” refers to a nationally traded security listed on a
national exchange. See 15 U.S.C. §§ 77p(f)(3), 77r(b).

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The next provision, subsection (c), “ensur[es] that federal
courts will have the opportunity to determine whether a state
action is precluded.” Madden v. Cowen & Co., 576 F.3d 957,
965 (9th Cir. 2009). It authorizes defendants to remove to
federal district court “[a]ny covered class action brought in any
State court involving a covered security, as set forth in
subsection (b).” 112 Stat. at 3228 (codified at 15 U.S.C. §
77p(c)). Subsection (c) provides for removal if the suit falls
within the scope of subsection (b), i.e., if it alleges “claims of
untruth, manipulation, and so on.” Kircher, 547 U.S. at 642.
Removal under subsection (c) is for a specific purpose: when a
case is removed to federal district court under that provision, the
court’s jurisdiction is confined to examining whether the action
in fact falls within subsection (b)’s scope of preclusion. If so,
“neither the district court nor the state court may entertain it, and
the proper course is to dismiss.” Id. at 644. If not, “the federal
court likewise has no jurisdiction to touch the case on the merits,
and the proper course is to remand to the state court that can
deal with it.” Id.; see also 15 U.S.C. § 77p(d)(4) (“Remand of
removed actions”).
That brings us to subsection (d), the provision on which
Campbell rests her assertion of jurisdiction.
Entitled
“[p]reservation of certain actions,” subsection (d) states, in
relevant part:
(1) Actions under State law of State of incorporation
(A) Actions preserved
Notwithstanding subsection (b) or (c), a covered class
action described in subparagraph (B) of this paragraph
that is based upon the statutory or common law of the
State in which the issuer is incorporated (in the case of
a corporation) or organized (in the case of any other

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entity) may be maintained in a State or Federal court
by a private party.
15 U.S.C. § 77p(d)(1)(A) (emphasis added); see also id. §
77p(d)(1)(B) (imposing additional restrictions on the “covered
class action[s]” preserved by subparagraph (A)). That provision
limits the preclusive reach of subsection (b) by “preserv[ing]”
certain class actions asserting claims under the law of the state
in which the defendant is incorporated. See Dabit, 547 U.S. at
87. In light of the large number of corporations incorporated
under the laws of Delaware, subsection (d)(1)(A) is often
referred to as the “Delaware carve-out.” See Madden, 576 F.3d
at 964.
Focusing on the phrase, “may be maintained in a . . .
Federal court,” Campbell contends that subsection (d)(1)(A)
functions as an independent grant of federal subject matter
jurisdiction over the set of covered class actions falling within
the Delaware carve-out. In other words, Campbell reads
SLUSA to open the federal courthouse door to certain securities
class actions based only on state law, even if no diversity of
citizenship exists. Campbell’s reading of the statute is
untenable.
Campbell does not dispute that subsections (a), (b), and (c)
address preclusion—that is, whether certain state-law class
actions that might otherwise be justiciable are nonetheless
“nonactionable” in either state or federal court. Kircher, 547
U.S. at 636 n.1. As the district court explained, “[s]ubsection (a)
states the general rule”: the federal remedies provided by the
Securities Act do not preclude any other remedies that may
exist. Campbell, 926 F. Supp. 2d at 181. Subsection (b)
establishes an exception to that rule, precluding certain state-law
securities fraud class actions. Dabit, 547 U.S. at 82-83.
Subsection (c) “provides a limited grant of jurisdiction to render

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subsection (b) effective”: it authorizes removal of state-court
class actions falling within the ambit of subsection (b).
Campbell, 926 F. Supp. 2d at 181. But the federal court’s
“adjudicatory power” under subsection (c) extends only to
determining whether the action is in fact precluded, in which
event the federal court must dismiss it. Kircher, 547 U.S. at 644
& n.12.
Understood against that backdrop, subsection (d)
“carefully” carves out exceptions to the preclusive reach of
subsection (b). Dabit, 547 U.S. at 87; see id. (subsection (d)
“exempts from [SLUSA’s] operation certain class actions based
on the law of the State in which the issuer of the covered
security is incorporated”). There is no indication, however, that
Congress intended subsection (d)(1)(A) to go substantially
further, so as to create federal jurisdiction over a category of
state-law securities class actions. To the contrary, the
introductory clause of subsection (d)(1)(A)—“Notwithstanding
subsection (b) or (c)”—confirms that the provision responds to
subsections (b) and (c). It does not embark on a wholly
independent mission to confer federal-court jurisdiction on statelaw actions. Indeed, the operative language of subsection
(d)(1)(A), which permits certain class actions to “be maintained
in a State or Federal court,” directly parallels the language of
subsection (b). See 15 U.S.C. § 77p(b) (when conditions for
preclusion are met, no such action “may be maintained in any
State or Federal court”). That symmetry indicates that
subsection (d)(1)(A)’s use of the phrase, “may be maintained,”
serves only to negate the preclusive effect of subsection (b) with
regard to a certain category of class actions, nothing more. And
subsection (d)(1)(A)’s use of the term “preserve[],” meaning “to
keep (something) in its original state,” Merriam-Webster’s
Collegiate Dictionary (online ed. 2014), manifests Congress’s
intent to retain the state-law claims falling within the Delaware

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carve-out in their pre-SLUSA state—not to inject those claims
into federal court for the first time.
The Supreme Court’s decision in Kircher confirms our
reading of the statute. Kircher involved state-court actions
removed to federal district court pursuant to subsection (c) of
SLUSA. The Supreme Court considered whether the district
court’s orders remanding the cases to state court were
appealable. 547 U.S. at 636. The Court held that 28 U.S.C.
§ 1447(d)—which provides that an “order remanding a case to
the State court from which it was removed is not reviewable on
appeal or otherwise”—barred appeal of the remand orders. Id.
at 648. Noting that § 1447(d) applies to remands based on
defects in removal procedure or lack of subject matter
jurisdiction, see Thermtron Prods., Inc. v. Hermansdorfer, 423
U.S. 336, 346-48 (1976), the Court determined that the district
court’s orders fell in the latter category. 547 U.S. at 643-44. In
reaching that conclusion, the Court rejected the defendants’
contention that subsection (c) of SLUSA creates “jurisdiction
greater than that necessary to render the preclusion decision.”
Id. at 644 n.12. The defendants argued that “[i]f there is any
colorable claim that an action is precluded . . . the district court
can keep the case for adjudication, even after concluding on the
merits that the state-law claims are not precluded”; and because
the court “has discretion to keep the case or remand to state
court, a remand is not jurisdictional and hence is reviewable.”
Id. In response, the Supreme Court explained that “there is no
indication whatsoever in [SLUSA] that, apart from its purpose
to preclude certain vexing state-law class actions, Congress
intended to add other state-law cases to the federal dockets.” Id.
That understanding fully applies to subsection (d), reinforcing
our conclusion that subsection (d) does not independently create
federal jurisdiction over any state-law class actions.

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* * * * *
For the foregoing reasons, we agree with the district court
that SLUSA does not confer federal subject matter jurisdiction
in this case. We have also considered Campbell’s remaining
arguments in favor of federal jurisdiction and find them to be
without merit for the reasons explained by the district court. We
therefore affirm the district court’s dismissal of the complaint
for lack of subject matter jurisdiction.
So ordered.

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