# 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/9466977

## 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 Kennedy
- **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/9466977

## Opinion text

KENNEDY, Circuit Judge,
concurring:
I concur in Part I of Judge Larson’s opinion. As to Part II, I agree with Judge Sneed that it is inappropriate for us to review the merits of the order decertifying the class. I am not certain, however, that the subordinate arguments made by Judge Sneed support his position. It is most unlikely, in my view, that if we were to approve Judge Larson’s approach, we would encourage efforts to secure dismissals following the decertification, even if that did occur in Huey v. Teledyne, Inc. It should be noted, moreover, that the settlement value of the case will be affected whichever way we rule on the appealability issue presented here.
I am in full agreement with Judge Sneed that it would be contrary to the purpose of Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978), to review the decertification order here. Furthermore, to do so would be contrary to our holding in Blake v. City of Los Angeles, 595 F.2d 1367 (9th Cir. 1979). In my view, that case is indistinguishable from the one before us. It is an adequate, independent ground for holding that we should not review the decertification order. Our decision in Blake survives the Supreme Court’s opinion in United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 407-408 (1980). In Geraghty the Court held it was appropriate for the Court of Appeals to review the merits of a district court’s denial of class certification when the Court of Appeals reversed a summary judgment order and remanded the case for further proceedings. There, however, the propriety of class certification was intertwined with another issue in the case, which was whether the lawsuit was moot. Resolving the mootness issue entailed a determination affecting the certification question. It must be acknowledged that there is an implicit tension between Coopers & Lybrand and Geraghty . The tension makes the present case a close one. In my view, however, the Court in Geraghty did not intend to announce a general rule that appellate courts should review the merits of class certification or decertification questions in every case when an appealable judgment in the case is before it. In Geraghty , moreover, the district court’s abuse of discretion in the class decertification was clear, and that is not the case here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466977. Public record. Not legal advice.