     Case: 12-60704   Document: 00512566819   Page: 1   Date Filed: 03/19/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                                                   FILED
                               No. 12-60704                    March 19, 2014
                                                         Lyle W. Cayce
STATE OF MISSISSIPPI, ex rel Jim Hood, Attorney General,      Clerk


                                        Plaintiff – Appellee
v.

AU OPTRONICS CORPORATION; AU OPTRONICS CORPORATION
AMERICA, INCORPORATED; CHI MEI CORPORATION; CHIMEI
INNOLUX CORPORATION, formerly known as Chi Mei Optoelectronics
Corporation; CHI MEI OPTOELECTRONICS USA, INCORPORATED,
formerly known as International Display Technology USA, Incorporated;
CMO JAPAN COMPANY, LIMITED, formerly known as International
Display Technology, Limited; HANNSTAR DISPLAY CORPORATION;
HITACHI, LIMITED; JAPAN DISPLAY EAST, INCORPORATED; HITACHI
ELECTRONIC DEVICES (USA); LG DISPLAY COMPANY, LIMITED,
formerly known as LG Phillips LCD Company, Limited; LG DISPLAY
AMERICA, INCORPORATED, formerly known as LGD LCD America,
Incorporated; SAMSUNG ELECTRONICS COMPANY, LIMITED;
SAMSUNG SEMICONDUCTOR, INCORPORATED; SAMSUNG
ELECTRONICS AMERICA, INCORPORATED; SHARP CORPORATION;
SHARP ELECTRONICS CORPORATION; TOSHIBA CORPORATION;
TOSHIBA MOBILE DISPLAY COMPANY, LIMITED, formerly known as
Toshiba Matsushita Display Technology Company, Limited; TOSHIBA
AMERICA ELECTRONIC COMPONENTS, INCORPORATED; TOSHIBA
AMERICA INFORMATION SYSTEMS, INCORPORATED,

                                        Defendants – Appellants



                Appeal from the United States District Court
                  for the Southern District of Mississippi
                          USDC No. 3:11-CV-345
     Case: 12-60704      Document: 00512566819         Page: 2    Date Filed: 03/19/2014



                                      No. 12-60704
 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       The Supreme Court has remanded this case following the Court’s
reversal of our prior judgment. See Mississippi ex rel. Hood v. AU Optronics
Corp., 134 S. Ct. 736 (2014). Also pending is AU Optronics’ Motion to Recall
the Mandate and for Further Proceedings on Remand.
       The Supreme Court held that this case does not qualify as a “mass
action” under the Class Action Fairness Act (“CAFA”), reversing our holding to
the contrary. See id. at 741–46. AU Optronics now contends that it should
have an opportunity to argue – either before this court or before the district
court on remand – that CAFA nonetheless supplies federal jurisdiction because
this case qualifies as a “class action” under CAFA.
       We considered and rejected this argument in our original panel opinion.
See Mississippi ex rel. Hood v. AU Optronics Corp., 701 F.3d 796, 799 (5th Cir.
2012) (“Our analysis begins by considering whether Mississippi’s suit against
the LCD manufacturers qualifies as a ‘class action,’ a question that can be
answered quickly in the negative.”). AU Optronics argues that this statement
is dicta in the light of our ultimate holding that the case qualified as a “mass
action.” AU Optronics is incorrect. The statement was not dicta because it
“constitutes an explication of the governing rules of law” and received our “full
and careful consideration.” Int’l Truck and Engine Corp. v. Bray, 372 F.3d 717,
721 (5th Cir. 2004); see also United States v. Adamson, 665 F.2d 649, 656 n.19
(5th Cir. 1982) (“It cannot be said that a case is not authority on one point



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

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    Case: 12-60704     Document: 00512566819     Page: 3    Date Filed: 03/19/2014



                                  No. 12-60704
because, although that point was properly presented and decided in the regular
course of the consideration of the cause, something else was found in the end
which disposed of the whole matter.”) (quoting Florida Cent. R.R. Co. v.
Schutte, 103 U.S. 118, 143 (1880)). Because our prior decision on this issue
was a proper holding, the law-of-the-case doctrine forbids its reconsideration.
See Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698, 702 (5th Cir. 2010)
(“[A]n issue of law or fact decided on appeal may not be reexamined either by
the district court on remand or by the appellate court on a subsequent
appeal.”).
      Additionally, AU Optronics has waived further argument on this issue
by not raising it on appeal before the Supreme Court, a fact the Supreme Court
explicitly noted. AU Optronics, 134 S. Ct. at 741 & n.2 (recognizing that the
lower courts determined that the action was not a class action and that AU
Optronics “[does] not challenge this ruling before this Court”). It may not now
resurrect the issue before this court.
      So to summarize, federal jurisdiction exists over this case if it is a “class
action” or a “mass action” under CAFA. The Supreme Court held that the case
is not a “mass action.” Prior to that, both the district court and this panel held
that the case was not a “class action” – a holding that AU Optronics failed to
raise before the Supreme Court. AU Optronics may not relitigate it. For this
reason, we REMAND the case to the district court for entry of an order
remanding the case to state court. Additionally, AU Optronics’ Motion to
Recall the Mandate and for Further Proceedings on Remand is DENIED.
                     REMANDED for entry of order remanding to state court.
                                                                Motion DENIED.




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