State of Hawaii v. HSBC Bank Nevada

An action by a state Attorney General against credit card providers for state law claims of deceptive marketing practices cannot be removed to federal court because it is not pre-empted by federal law and is not a class action.

In April 2012, the Hawaii Attorney General brought three state law claims on behalf of the State of Hawaii and its citizens against six credit card providers for deceptively marketing products to consumers. The credit card providers include five state-chartered banks and one federally chartered bank operating in Hawaii. The Attorney General alleges that the credit card providers enrolled members into add-on products, sometime without the customer’s knowledge, that were inappropriate for the customers and provided little benefit. The defendants removed the case to federal court based on federal subject matter jurisdiction and the Class Action Fairness Act. The Hawaii Attorney General filed to remand back to state court. The district court determined that the Attorney General did not invoke a class action either expressly or implicitly and the court did not have jurisdiction under the CAFA. The district court denied the attempt to remand the case by reading the complaint to allege that the fees charged for the add-on products were excessive interest fees, which is a claim pre-empted by the National Bank Act. The district court extended jurisdiction to the rest of the claims under supplemental jurisdiction. The panel agreed with the district court that the Attorney General was not filing a class action suit, but instead brought the action under a claim similar to a parens patriae , and federal jurisdiction was improper. The panel did reverse the district court decision to grant jurisdiction by characterizing the fees as excessive interest. The panel reasoned that the Attorney General’s complaint did not claim that the amount of the fee for the add-on products were a too high “rate of interest”, but that the complaint alleged deceptive marketing of the products, not pre-empted by the National Bank Act. REVERSED and REMANDED to state court.