# Stephen H. Marks v. San Francisco Real Estate Board > Court of Appeals for the Ninth Circuit · September 11, 1980 · 627 F.2d 947 URL: https://www.frixlaw.com/law-library/cases/9466976 ## Case - **Full name:** Stephen H. MARKS, Appellant, v. SAN FRANCISCO REAL ESTATE BOARD Et Al., Appellees - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** September 11, 1980 - **Citations:** 627 F.2d 947; 30 Fed. R. Serv. 2d 582; 1980 U.S. App. LEXIS 14202 - **Precedential status:** Published - **Opinion:** Concurrence by Sneed - **Judges:** Sneed, Kennedy, Larson - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466976 ## Opinion text SNEED, Circuit Judge (concurring in the result): I concur in the result reached by Judge Larson in Part I of his opinion. Plaintiff is entitled to pursue his individual claim and the dismissal by the district court was improper. There was no necessity that the plaintiff, following the remand in Hooley v. Red Carpet Real Estate, 549 F.2d 643 (9th Cir. 1977), continue his efforts to demonstrate that the “death knell” had sounded. Quite properly he could decide to pursue his individual claim only. As Judge Larson points out, Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978) compels that course. Plaintiff’s attempt to do so should not have been thwarted by a dismissal. Part II of Judge Larson’s opinion undertakes a review of the district court’s decertification of the class. To do so is premature. To hold otherwise would encourage efforts to secure dismissals following a decertification to obtain its interlocutory review contrary to the purpose of Coopers & Lybrand v. Livesay, supra. Distinguishing dismissals resulting from such efforts from those not so induced, as Judge Larson does in Part II of his opinion, constitutes the assumption by the appellate courts of an unnecessary task, requiring the probing for invariably partially concealed motives, for which they are not well suited. *952 Should the plaintiff establish liability in his individual action in this case, and assuming the class was improperly decertified, as Judge Larson would hold, our judgment to that effect on his appeal following his victory on his individual cause would enable him either to enter into meaningful settlement negotiations or to proceed to judgment on behalf of the class. It is true that Judge Larson’s approach would expedite the resolution of the decertification issue; however, it is also true that its resolution prior to the establishment of liability would mainly serve to fix the pre-liability-determination settlement value of the case. To undertake to enable the fixing of this value at the cost of incurring the substantial risk of undermining Coopers & Lybrand v. Livesay, supra is unwise. Finally, to undertake review of the decertification issue in this case is inconsistent with the policies expressed by this court in Huey v. Teledyne, Inc., 608 F.2d 1234 (9th Cir., 1979) even though its precise holding does not control the disposition of this case. Judge Kennedy is correct in suggesting that neither United States Parole Comm’n v. Geraghty, 445 U.S. 388 , 100 S.Ct. 1202 , 63 L.Ed.2d 479 (1980), nor Deposit Guaranty National Bank of Jackson, Mississippi v. Roper, 445 U.S. 326 , 100 S.Ct. 1166 , 63 L.Ed.2d 427 (1980), require a present review of the decertification issue. Here, contrary to the situation in Geraghty and Roper , we must assume that the plaintiff will pursue his individual claim notwithstanding its improper dismissal by the district court. Consideration by us of the decertification issue is not necessary to keep this case alive. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466976. Public record. Not legal advice.