Petition for Writ of Certiorari — Gospel For Asia, Inc., et al., Petitioners v. Garland D. Murphy, III, et al.

Supreme Court briefJan 25, 2019

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No. 18IN THE

Supreme Court of the United States

___________

GOSPEL FOR ASIA, INC., et al.,

Petitioners,

GARLAND D. MURPHY, III., M.D., et al.,

Respondents.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

HARRIET E. MIERS

ROBERT T. MOWREY

PAUL F. SCHUSTER

CYNTHIA K. TIMMS

W. SCOTT HASTINGS

LOCKE LORD LLP

2200 Ross Avenue

Suite 2800

Dallas, TX 75201

(214) 740-8000

CARTER G. PHILLIPS *

KATHLEEN MORIARTY

MUELLER

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Petitioners

January 25, 2019

* Counsel of Record

QUESTIONS PRESENTED

1. Whether a RICO class may be certified under

Federal Rule of Civil Procedure 23(b)(3) based on a

presumption that all class members were injured by

the allegedly fraudulent activity, even though defendants presented unrebutted evidence that the presumption is plainly not true in many individual instances.

2. Whether all circuit courts of appeals should apply the same standards in deciding whether to grant

petitions for interlocutory review of class certification

orders under Federal Rule of Civil Procedure 23(f).

(i)

PARTIES TO THE PROCEEDING

Petitioners (defendants-petitioners below) are Gospel for Asia, Inc., K.P. Yohannan, Gisela Punnose,

Daniel Punnose, David Carroll, and Pat Emerick.

Gospel for Asia-International was also named as a

defendant in the Complaint, but no longer existed

when the lawsuit was filed.

Respondents (plaintiffs-respondents below) are

Garland D. Murphy, M.D. and Phyllis Murphy, individually and on behalf of a certified class of individuals who made charitable donations to Gospel for Asia,

Inc. over a period of almost ten years.

RULE 29.6 STATEMENT

Petitioner Gospel for Asia, Inc. is a non-profit organization that is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code. It has no

parent corporation, and no publicly held corporation

owns 10% or more of its stock.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................

PARTIES TO THE PROCEEDING .....................

RULE 29.6 STATEMENT ....................................

TABLE OF AUTHORITIES .................................

OPINIONS BELOW .............................................

JURISDICTION....................................................

RULE INVOLVED................................................

INTRODUCTION .................................................

STATEMENT OF THE CASE..............................

REASONS FOR GRANTING THE PETITION ...

I. WHETHER A RICO CLASS ACTION MAY

BE CERTIFIED ON A PRESUMPTION

OF RELIANCE IS AN IMPORTANT AND

RECURRING ISSUE ON WHICH THE

CIRCUIT COURTS ARE DIVIDED .............

A. The Decision Below Conflicts With Decisions From Other Circuits ........................

B. Class Certification Based On A Presumption of Class-wide Reliance Is Inconsistent

With

This

Court’s

Precedents .................................................

II. THIS COURT’S REVIEW IS NEEDED TO

RESOLVE AN ENTRENCHED CIRCUIT

SPLIT ON THE STANDARDS FOR INTERLOCUTORY APPEAL OF CLASS

CERTIFICATION

ORDERS

UNDER

RULE 23(F) ...................................................

(iii)

A. The Circuits Are Hopelessly Divided On

The Standards For Interlocutory Appeals Under Rule 23(f) .............................

B. This Case Provides An Excellent Vehicle

For Resolving The Circuit Split...............

CONCLUSION .....................................................

APPENDICES

APPENDIX A: Murphy v. Gospel For Asia, Inc.,

327 F.R.D. 227 (W.D. Ark. 2018) ......................

APPENDIX B: Murphy v. Gospel For Asia, Inc.,

No. 18-8012 (8th Cir. Oct. 16, 2018) (request

for interlocutory appeal denied) ........................ 34a

APPENDIX C: Murphy v. Gospel For Asia, Inc.,

No. 18-8012 (8th Cir. Nov. 14, 2018) (order

denying rehearing) ............................................ 35a

CASES

TABLE OF AUTHORITIES

Page

Am. Express Co. v. Italian Colors Rest., 133

S. Ct. 2304 (2013) ......................................

Blair v. Equifax Check Servs., Inc., 181

F.3d 832 (7th Cir. 1999) ..................... 20, 21, 24

Bridge v. Phx. Bond & Indem. Co., 553

U.S. 639 (2008) .......................................... 10, 18

CGC Holding Co. v. Broad & Cassel, 773

F.3d 1076 (10th Cir. 2014) ........................

Chamberlan v. Ford Motor Co., 402 F.3d

952 (9th Cir. 2005) .................................... 21, 22

Comcast Corp. v. Behrend, 569 U.S. 27

(2013) ......................................................... 4, 16

In re Delta Air Lines, 310 F.3d 953 (6th

Cir. 2002) ...................................................

Elizabeth M. v. Montenez, 458 F.3d 779

(8th Cir. 2006) ...........................................

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147

(1982) .........................................................

Halliburton Co. v. Erica P. John Fund,

Inc., 134 S. Ct. 2398 (2014) .......................

Hohn v. United States, 524 U.S. 236

(1998) .........................................................

Holmes v. Secs. Inv’r Prot. Corp., 503 U.S.

258 (1992) ..................................................

Klay v. Humana, Inc., 382 F.3d 1241

(2004), abrogated in part on other

grounds by Bridge v. Phx. Bond & Indem.

Co., 553 U.S. 639 (2008)............................ 13, 14

Lienhart v. Dryvit Sys., Inc., 255 F.3d 138

(4th Cir. 2001) ........................................... 22, 25

Liles v. Del Campo, 350 F.3d 742 (8th Cir.

2003) .......................................................... 22, 23

In re Lorazepam & Clorazepate Antitrust

Litig., 289 F.3d 98 (D.C. Cir. 2002) ..........

TABLE OF AUTHORITIES – continued

Page

Luiken v. Domino’s Pizza, LLC, 705 F.3d

370 (8th Cir. 2013) ....................................

McLaughlin v. Am. Tobacco Co., 522 F.3d

215 (2d Cir. 2008), abrogated in part on

other grounds by Bridge v. Phx. Bond &

Indem. Co., 553 U.S. 639 (2008) ............... 14, 18

Menocal v. GEO Grp., Inc., 882 F.3d 905

(10th Cir.), cert. denied, 139 S. Ct. 143

(2018) .........................................................

Microsoft Corp. v. Baker, 137 S. Ct. 1702

(2017) .........................................................

Newton v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 259 F.3d 154 (3d Cir. 2001) .. 21, 22

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ....

Patterson v. Mobil Oil Corp., 241 F.3d 417

(5th Cir. 2001) ........................................... 11, 19

Poulos v. Caesars World, Inc., 379 F.3d 654

(9th Cir. 2004) ........................................... 12, 13

Postawko v. Mo. Dep’t of Corr., 910 F.3d

1030 (8th Cir. 2018) ..................................

Prado-Steiman v. Bush, 221 F.3d 1266

(11th Cir. 2000) .........................................

Rattray v. Woodbury Cty., 614 F.3d 831

(8th Cir. 2010) ...........................................

Regents of Univ. of Cal. v. Credit Suisse

First Bos. (USA), Inc., 482 F.3d 372 (5th

Cir. 2007) ............................................ 20, 21, 25

In re Rhone-Poulenc Rorer Inc., 51 F.3d

1293 (7th Cir. 1995) ........................... 15, 16, 25

Sandwich Chef of Tex., Inc. v. Reliance

Nat’l Indem. Ins. Co., 319 F.3d 205

(2003) .........................................................

Sumitomo Copper Litig. v. Credit Lyonnais

Rouse, Ltd., 262 F.3d 134 (2d Cir. 2001) .. 20, 21

vii

TABLE OF AUTHORITIES – continued

Page

Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct.

1036 (2016) ................................................

In re U.S. Foodservice Inc. Pricing Litig.,

729 F.3d 108 (2d Cir. 2013) ......................

Vallario v. Vandehey, 554 F.3d 1259 (10th

Cir. 2009) ...................................................

Wal-Mart Stores, Inc. v. Dukes, 564

U.S.

338 (2011) .................................................. 4, 17

Waste Mgmt. Holdings, Inc. v. Mowbray,

208 F.3d 288 (1st Cir. 2000) ..................... 20, 21

In re Zurn Pex Plumbing Prods. Liab.

Litig., 644 F.3d 604 (8th Cir. 2011) ..........

STATUTES

18 U.S.C. § 1964(c) .......................................

§ 1254(1) ......................................

28 U.S.C. § 2072(b) .......................................

RULES

Fed. R. Civ. P. 1 ............................................

Fed. R. Civ. P. 23 ................................... 1, 2, 3, 24

OTHER AUTHORITIES

21B C.A. Wright & K.W. Graham, Jr.,

Federal Practice and Procedure: Evidence

(2d ed. 2005) ..............................................

Fed. R. Civ. P. 23(b)(3) advisory

committee’s note to 1966 amendment ......

Fed. R. Civ. P. 23(f) advisory committee’s

note to 1998 amendment ..........................

viii

TABLE OF AUTHORITIES – continued

John H. Beisner, et al., Study Reveals U.S.

Courts of Appeal Are Less Receptive To

Reviewing Class Certification Rulings

(Apr. 29, 2014), https://www.skadden.

com/insights/publications/2014/04/studyreveals-us-courts-of-appeal-are-lessrecepti ........................................................

Transactional

Records

Access

Clearinghouse, Syracuse University,

Anti-Racketeering Civil Suits Jump in

2018, (Oct. 30, 2018) http://trac.syr.edu/

tracreports/civil/ 535/#f2 ...........................

Page

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari to review the decision of the United States Court

of Appeals for the Eighth Circuit.

OPINIONS BELOW

The Eighth Circuit’s orders (Pet. App. 34a-35a) are

not reported. The district court’s opinion granting

class certification is reported at 327 F.R.D. 227 and

reproduced at Pet. App. 1a-33a.

JURISDICTION

The Eighth Circuit entered its judgment denying

petitioners’ request for interlocutory appeal of the

class-certification order on October 16, 2018. Pet.

App. 34a. The Eighth Circuit denied petitioners’

timely petition for rehearing and rehearing en banc

on November 18, 2018. Pet. App. 35a. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

RULE INVOLVED

This case involves subsections (b)(3) and (f) of Federal Rule of Civil Procedure 23, which state:

(b) Types of Class Actions. A class action may

be maintained if Rule 23(a) is satisfied and if:

***

(3) the court finds that the questions of law or fact

common to class members predominate over any

questions affecting only individual members, and

that a class action is superior to other available

methods for fairly and efficiently adjudicating the

controversy. The matters pertinent to these findings

include:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class

members;

(D) the likely difficulties in managing a class action.

***

(f) Appeals. A court of appeals may permit an appeal from an order granting or denying class-action

certification under this rule, but not from an order

under Rule 23(e)(1). A party must file a petition for

permission to appeal with the circuit clerk within 14

days after the order is entered …. An appeal does not

stay proceedings in the district court unless the district judge or the court of appeals so orders.

INTRODUCTION

This civil RICO case presents important and recurring questions of class action procedure. It arises out

of allegations that a charity, Gospel for Asia, defrauded over 180,000 donors over a period of almost

ten years when it allegedly failed to spend donations

strictly in accordance with the donors’ wishes. In addition to denying the allegations of fraud, defendants

presented unrebutted evidence that individual donors

were inspired to donate for a variety of different reasons, and fewer than 2% reported that they donated

because of statements that funds would be expended

in accordance with donor designations. That fact by

itself should have precluded class certification. Litigation of the individual questions of whether each

class member relied on any representations about the

use of donor funds will overwhelm the trial, predominating over any allegedly common questions about

whether the representations were false. See Fed. R.

Civ. P. 23(b)(3). Indeed, the drafters of Rule 23(b)(3)

specifically acknowledged that a fraud case “may be

unsuited for treatment as a class action” when there

is such “material variation in the representations

made or in the kinds or degrees of reliance by the

persons to whom they were addressed.” Fed. R. Civ.

P. 23(b)(3) advisory committee’s note to 1996

amendment.

The district court nevertheless granted class certification. Citing cases from the Second, Tenth and

Eleventh Circuits, the court reasoned that individualized inquiries would not be needed because plaintiffs

and the court could simply presume that every donor

relied on the representations about the use of donated funds, and that none would have donated had they

known their contributions would not be spent precisely as they specified. The Eighth Circuit then denied

defendants’ timely petition for interlocutory review

under Rule 23(f). That decision warrants this Court’s

review.

First, the class certification decision is inconsistent

with decisions from the Fifth and Ninth Circuits

holding a RICO class action cannot be certified based

on a presumption of reliance when there is evidence

that the presumption is not true in many, if not most,

individual cases. It is also inconsistent with decisions

of this Court. Class certification based on a presumption of reliance relieves plaintiffs of the burden of

proving that common questions do, in fact, predominate over individual questions, in contravention of

Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013).

Moreover, it deprives defendants of the ability to litigate their “defenses to individual claims,” in contravention of Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

338, 367 (2011).

Second, the Eighth Circuit’s summary denial of defendants’ petition for interlocutory review implicates

a longstanding and well-acknowledged circuit split on

the criteria circuit courts should apply in exercising

their discretion to grant or deny interlocutory review

of class certification orders under Rule 23(f). This

circuit split also warrants this Court’s review because

a litigant’s ability to obtain interlocutory review

should not vary by circuit.

STATEMENT OF THE CASE

1. Gospel for Asia is a Christian missionary organization that raises money to support local missionary

efforts in India and other South Asian nations. Organizations in those nations supported by Gospel for

Asia principally operate through four programs: (1) a

National Missionaries program, which pays the salaries and living expenses of local missionaries; (2) the

“Bridge of Hope” program, which provides financial

assistance for the basic needs and education of children sponsored by donors; (3) community development programs, which provide families or local communities with such items as animals (e.g., goats,

chickens), tools (e.g., sewing machines, fishing nets),

and basic infrastructure (e.g., water wells, toilets) so

they can better support themselves; and (4) disaster

assistance programs for victims of natural disasters.

See 8th Cir. App. 394-95. Money raised in the United

States is sent to organizations (referred to as “field

partners”) that in turn invest the funds in the missionary work and also distribute the funds to the lo-

cal churches and pastors to assist people in their

communities. Pet. App. 2a-3a & n.2.

Gospel for Asia solicits donations in a variety of

ways.

Its representatives give presentations in

churches throughout the United States. Pet. App. 3a.

It has a website and broadcasts a weekly radio show.

Id. And it sends catalogs and other written and electronic mailings to individuals. Id. at 3a-4a. A donor

may request that the donation be used for a specific

program or item by checking a box on the order form

or by adding the item (e.g., “Jesus wells”) to their

online “shopping cart.” Id. at 3a. But the solicitation

materials appeal to more than a desire to fund a specific project or purchase a particular item listed in a

catalog. They ask donors to support Gospel for Asia’s

overall religious mission. For example, a Christmas

catalog attached to the complaint features a donor

who explained that she gave because she wanted to

“teach [her] children that Christmas is about giving,

not just receiving” and “to make sure that in our giving, the Good News of Jesus would be shared.”

Compl., Dist. Ct. Dkt. 1-2, at 2.

The website and many written materials in use

during the class period did contain a statement that

100% of donations designated for use in the mission

field are sent to the field. Pet. App. 3a. However,

some mailings did not include this “100% statement,”

and it no longer appears on the website. See 8th Cir.

App. 400, 450-61. In addition, Gospel for Asia sent

each donor a receipt with a disclaimer stating that

although it is committed to honoring the donor’s specified designation, it “has complete discretion and control over the use of all donated funds.” Id. at 401; see

also id. at 464, 467, 474.

2. This lawsuit involves plaintiffs’ claim that Gospel for Asia committed fraud and violated the federal

RICO Act and the Arkansas Deceptive Trade Practices Act by failing to “spend the donated—and designated—money in accordance with the donors’ wishes

or with [Gospel for Asia’s] representations.” Pet.

App. 5a. The complaint alleges that defendants made

“materially false” or “materially misleading” statements about how donated funds would be spent; that

these allegedly false statements caused donors to contribute; and that if “Defendants had fully disclosed to

Plaintiffs and the Class that their contributions

would not be spent as they specified, Plaintiffs and

the members of the Class would not have made the

contributions.” Compl., Dist. Ct. Dkt. 1 ¶¶ 57, 63, 72,

75.

Plaintiffs asked the district court to certify a class

of approximately 180,000 people in the United States

who donated a combined total of about $375 million

to Gospel for Asia between January 1, 2009 and September 10, 2018, and designated that their donation

be used for a particular project code. Pet. App. 5a &

n.4, 31a. They claimed class certification was warranted because Gospel for Asia “made substantially

uniform representations throughout the class period

that 100% of what donors gave for sponsorship in the

field would in fact be sent to the mission field.” Id. at

22a. Plaintiffs also submitted evidence purporting to

show that Gospel for Asia failed to transfer donations

to the mission field on a timely basis, had deficient

accounting practices, and spent “donor restricted

gifts” for other purposes “while considering other

funds spent on the field as fulfilling donor restrictions.” 8th Cir. App. 174-78.

Notably, plaintiffs provide no evidence to substantiate their allegation that the 100% statement in the

solicitation materials is what caused people to donate

to Gospel for Asia. Instead, plaintiffs claimed the

court could simply infer that class members relied on

the 100% statement, and that none would have donated if they had known that some of the donations

might be not used for the specific items designated.

8th Cir. App. 183-86.

Defendants, in contrast, produced evidence that

this inference is incorrect. Dr. Russell James, III, a

professor at Texas Tech University whose research

focuses on charitable giving, provided an expert report explaining that decades of research have demonstrated that most people approach charitable giving,

and particularly religious charitable giving, differently than they approach commercial transactions or financial investments. 8th Cir. App. 515-16. Because

people typically enter a financial investment for the

purpose of maximizing their financial return, economists used to assume that people donate to charity to

achieve “a specific social outcome and that as rational, utility-maximizing, economic actors, their goal is

to spend the least amount of money to generate the

outcome.” Id. at 519. By the late 1980s, however,

economists realized that this “efficiency-focused”

model of charitable giving is contradicted by empirical evidence and “lacks predictive power.” Id. at 51920. Instead, studies have shown that people are motivated to give for many reasons that are unaffected

by the efficacy of the donation, and some will donate

even “in the absence of any tangible benefit to the

charity or [its] beneficiaries.” Id. at 522.

For example, some donors are motivated by a religious belief that they should share what they have

with others. See id. at 521 (discussing research “indicating that U.S. donors engage in religious charitable giving as a form of investment in ‘after-life consumption’’). Some give to be seen by others as generous or wealthy. Id. at 523-24 (research shows that

“increasing the public visibility of a gift increased giving behavior”). Others give because the charity is

important to a friend or loved one. Id at 525.

Although some donors select a charity because it

provides audited financial statements or has been

approved by a fiscal oversight body, “research suggests these motivations are, in fact, rare.” Id. at 527;

id. (“such information ‘did not translate into increased actual giving in our study’”). Research also

“suggests that offering gift restrictions will induce

donations for only a very small minority of donors.”

Id. at 531 (discussing 2017 study published in the

Journal of Behavioral and Experimental Economics

in which offering donors the option of restricting gifts

to a particular use increased donations by only 0.3%).

A survey of Gospel for Asia’s own donors produced

similar results. Now and long before this lawsuit was

filed, when a donation is made through the Gospel for

Asia website, a “Share Your Comment” screen appears that asks donors to report “what inspired you to

donate today.” 8th Cir. App. 401. A computer word

search of the 44,286 comments submitted since 2011

revealed that only 533 (1.2%) cited the “100% Guarantee.” Id. at 403. The results were similar when a

random sample of 600 donor comments was pulled

from the database and the comments were read in

full. Just 1.97% of comments in the sample cited the

“100% Guarantee” or Gospel for Asia’s “stewardship

of funds” as the reason they donated. Id. at 403-04.

In that same random sample, 32% of donors reported that they were inspired to donate by Gospel for

Asia’s Mission; 19% cited “God or the Bible (e.g., the

Lord called them to donate, or a specific Bible passage referenced);” 17.4% cited a desire to help those

in need; 10.5% cited “Family and Friends” (e.g., the

donor gave in honor of family or friends, or the donor

gave to teach children about giving); 9% said they

gave in response to one of Gospel for Asia’s books, radio broadcasts, or in-person presentations; 7.5% cited

a desire to minister to women and children; and

1.47% said they were donating on behalf of a Gospel

for Asia staff member. 8th Cir. App. 403-04.

3. Plaintiffs did not challenge any of this evidence,

and the district court said it “is assuredly true” that

“donors give for a number of reasons.” Pet. App. 23a.

The court nevertheless certified the nationwide RICO

class because it thought the “paramount” issue in this

case is whether funds donated by class members “for

particular items” were “in fact” spent “in the field as

designated.”1 Id. at 18a. The court was “unpersuaded” by the argument that Rule 23(b)(3)’s predominance requirement is not met because “extensive individualized inquiries” will be needed to determine

whether each of the approximately 180,000 class

members relied on Gospel for Asia’s representations

about how donated funds would be spent. Id. at 19a.

Instead, the court held, “reliance could be proven by

class-wide proof” because, notwithstanding the undisputed evidence before the court, it is “logical to infer that the class members relied” on the representations. Id. The court thus concluded that if Gospel for

Asia “made these representations and then subsequently did not send 100% of the money to the field or

spend the money in accordance with its commitments

to honor donor designations, that is actionable and

can be proven on a class-wide basis.” Id. at 23a.

1 The court also certified a smaller class of Arkansas donors

alleging state-law fraud and violations of the Arkansas Deceptive Trade Practices Act, but those claims require plaintiffs to

prove they “justifiably relied” on Gospel for Asia’s representations, Pet. App. 12a-14a, 32a, so the Rule 23(b)(3) analysis is the

same as it is for the RICO class.

4. Defendants filed a timely petition for interlocutory appeal under Rule 23(f), arguing first that the district court fundamentally erred in certifying a class

based on a presumption that every class member donated because of the representations about how the

funds would be spent. Second, they argued that, by

aggregating claims for over $1 billion in damages into

a single action, the certification decision creates

enormous and undue pressure on the defendants to

settle regardless of the merits of the underlying dispute. See Defendants’ Petition Under Fed. R. Civ. P.

23(f) at 2-3, No. 18-8012 (8th Cir. Sept. 24, 2018).

The Eighth Circuit denied the petition without explanation. Pet. App. 34a. Defendants then filed a

timely petition for rehearing or rehearing en banc,

which also was denied. Id. at 35a.

REASONS FOR GRANTING THE PETITION

I. WHETHER A RICO CLASS ACTION MAY

BE CERTIFIED ON A PRESUMPTION OF

RELIANCE IS AN IMPORTANT AND RECURRING ISSUE ON WHICH THE CIRCUIT COURTS ARE DIVIDED.

Plaintiffs seek treble damages under RICO on behalf of a class of people who claim to have been injured “by reason of” Gospel for Asia’s alleged misrepresentations about the use of donated funds. 18

U.S.C. § 1964(c). To prevail, plaintiffs must show

that donors relied on the alleged misrepresentations,

see Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639,

656 n.6 (2008), and that each class member would not

have donated to Gospel for Asia “but for” those misrepresentations, see Holmes v. Secs. Inv’r Prot. Corp.,

503 U.S. 258, 265-68 (1992).

This should have given the district court pause, because claims for money damages in which individual

causation and reliance must be shown obviously “are

poor candidates for class treatment, at best.” Patterson v. Mobil Oil Corp., 241 F.3d 417, 419 (5th Cir.

2001). And when, as here, the class has tens of thousands of members, individual issues would “‘overwhelm[] the common ones,’ making certification under Rule 23(b)(3) inappropriate,” if “proof of individualized reliance” is needed. Halliburton Co. v. Erica P.

John Fund, Inc., 134 S. Ct. 2398, 2407-08 (2014)

(quoting Basic, Inc. v. Levinson, 485 U.S. 224, 242

(1988)).

The district court held, however, that individualized inquiries were not needed because plaintiffs

could presume that all class members donated in reliance on defendants’ representations that 100 percent of funds designated for the mission field would

be used in the field. Pet. App. 18a-19a. Although the

court said it was applying an “inference,” it was actually a “presumption”—a conclusion that defendants

had the burden of rebutting. See 21B C.A. Wright &

K.W. Graham, Jr., Federal Practice and Procedure: Evidence §5122.1 (2d ed. 2005) (distinguishing inference

and presumption). Indeed, it was an irrebuttable

presumption, because the court used it as the basis

for class certification despite the substantial, undisputed evidence that donors had different reasons for

donating to Gospel for Asia, and most did not give because of the representations about the use of designated funds. That holding warrants this Court’s review because it is inconsistent with the decisions of

other circuits and this Court.

A. The Decision Below Conflicts With Decisions From Other Circuits

The decision below conflicts with circuit court decisions correctly holding that a RICO class action cannot be certified based on an inference that all class

members relied on defendants’ alleged misrepresentations when there is evidence that the inference is

not true for many plaintiffs.

1. The Fifth Circuit’s decision in Sandwich Chef of

Texas, Inc. v. Reliance National Indemnity Insurance

Co., 319 F.3d 205 (5th Cir. 2003), is illustrative.

Plaintiffs were companies that allegedly paid inflated

insurance premiums in reliance on invoices that

charged rates in excess of the filed rates approved by

regulators. Id. at 211-12. The district court certified

the class on the premise that class-wide reliance

could be inferred from evidence “that businesses customarily and reasonably rely on the accuracy of invoices, especially invoices sent by regulated entities.”

Id. at 220. The Fifth Circuit reversed, holding that

reasoning “legally flawed” because it ignored defendants’ evidence that some class members signed contracts knowing the premiums were higher than the

approved rates—evidence that “would eliminate reliance and break the chain of causation.” Id. The

court held that defendants are entitled to rebut plaintiffs’ class-wide inference with individualized evidence, and the “trier of fact must ultimately decide

whether a specific policyholder thought an invoice

complied with the approved rate and paid an inflated

premium in reliance on that belief.” Id. at 220-21.

These individualized inquiries “preclude a finding of

predominance of common issues of law or fact” and

“‘defeat the economics ordinarily associated with the

class action device.’” Id. at 221 (quoting Patterson,

241 F.3d at 419).

The Ninth Circuit reached the same conclusion in

Poulos v. Caesars World, Inc., 379 F.3d 654 (9th Cir.

2004), a RICO case involving claims that casinos misled customers about their chances of winning. The

court held that because “one motivation does not ‘fit

all,’” a class cannot be certified on the presumption

that all customers played the games because of the

casino’s alleged misrepresentations. Id. at 665-66.

Some players are casual gamblers who play “as entertainment or a social activity” and are “unconcerned

with the odds of winning.” Id. Others, “in the spirit

of taking a calculated risk, may have played fully

aware of how the machines operate.” Id. Thus, “an

individualized showing of reliance is required” to establish a causal link between the misrepresentations

and each class member’s gambling losses. Id.

The reasoning of Sandwich Chef and Poulos fully

applies here and should have precluded class certification. As explained above, fewer than 2% of Gospel

for Asia’s donors report that they were inspired to

give by the 100% statement or Gospel for Asia’s stewardship of funds. The rest were inspired to give for a

variety of other independent reasons. See supra pp.

8-9. These donors could not have been harmed by the

representations about the use of donor funds, because

those representations were not the “but for” cause of

the donations.

2. The decision below ignored these decisions, however, and relied instead on decisions from the Second,

Tenth, and Eleventh Circuits that certified RICO

class actions based on a presumption of reliance. Pet.

App. 19a-22a. The court principally relied on Klay v.

Humana, Inc., 382 F.3d 1241, 1258 (11th Cir. 2004),

which affirmed certification of a class of physicians

allegedly defrauded by insurance companies that

falsely represented that they would “pay physicians

the amounts to which they were entitled.” The court

reasoned that it “does not strain credulity to conclude

that each plaintiff, in entering into contracts with the

defendants, relied upon defendants’ representations

and assumed they would be paid the amounts they

were due.” Id. at 1259.

The Second Circuit followed that reasoning in In re

U.S. Foodservice Inc. Pricing Litigation, 729 F.3d 108

(2d Cir. 2013), when it affirmed certification of a class

of purchasers allegedly defrauded by invoices that inflated the amounts owed. The court thought it reasonable to infer “that customers who pay the amount

specified in an inflated invoice would not have done

so absent reliance upon the invoice’s implicit representation that the invoiced amount was honestly

owed.” Id. at 120. And the inference makes the case

“appropriate … for class certification” by providing

“common evidence” by which “‘each plaintiff [can]

prove reliance.’” Id. (quoting Klay, 382 F.3d at 1259).

The Tenth Circuit followed a similar approach in

CGC Holding Co. v. Broad & Cassel, 773 F.3d 1076,

1080 (10th Cir. 2014), which affirmed certification of

a class of real estate borrowers who alleged that

lenders conspired “to obtain non-refundable up-front

fees in return for loan commitments the lenders never intended to fulfill.” The Tenth Circuit held that

class certification based on “an inference of reliance”

is proper “where the behavior of plaintiffs and the

members of the class cannot be explained in any way

other than reliance upon the defendant’s conduct.”

Id. at 1089-90.

In none of these cases, however, was there evidence

that the inference was not true in many individual

cases. Had there been such evidence, class certification would have been improper in the Second Circuit.

See McLaughlin v. Am. Tobacco Co., 522 F.3d 215,

220, 225-26 (2d Cir. 2008) (reversing class certification based on a presumption that smokers purchased

“light” cigarettes in reliance on representations that

they were healthier than “full-flavored” cigarettes be-

cause there was evidence that some smokers “had

other, non-health related reasons for purchasing

Lights” or “were aware that Lights are not, in fact,

healthier” and thus individualized inquiries were

needed to determine causation).

The case law in the other circuits is unclear. The

Eleventh Circuit has not addressed the issue, while

the Tenth Circuit has indicated in dicta that if there

is evidence “that could rebut the Plaintiffs’ common

inference of [causation] on an individualized basis,” it

“might have concluded that individual issues …

would predominate at trial.” Menocal v. GEO Grp.,

Inc., 882 F.3d 905, 921 (10th Cir.) (quoting Torres v.

S.G.E. Mgmt., L.L.C., 838 F.3d 629, 644 (5th Cir.

2016) (en banc)), cert. denied, 139 S. Ct. 143 (2018).

3. Given the stakes of such litigation, the uncertainty created by this conflict is intolerable. At a minimum, it is clear that if this lawsuit had been filed in

Houston or Los Angeles, the case would not have

been certified as a class action. Rule 23(b)(3) certification should not depend on geography.

In addition, RICO’s trebled damages remedy combined with certification of a nationwide class of tens

or hundreds of thousands of members exponentially

increases “the sheer magnitude of the risk” that defendants face compared to individual actions, most of

which would never be brought because the donors did

not rely on the alleged misrepresentations of which

the named plaintiffs complain. See In re RhonePoulenc Rorer Inc., 51 F.3d 1293, 1297-99 (7th Cir.

1995). Permitting class certification based on a presumption of reliance therefore creates an incentive

for a few individual plaintiffs to seek certification of a

massive RICO class action in the hope the defendants

will “not wish to roll the[] dice” and will agree to a

settlement to which they would never agree in individual cases. Id.

The question of whether a RICO class action may

be certified based on a presumption of reliance is also

a question that arises in most RICO class actions involving allegations of mail fraud or wire fraud. And

RICO cases are being filed with increasing frequency.

The latest available data from the federal courts

show that substantially more civil RICO suits (1,405)

suits were filed in fiscal year 2018 than in fiscal year

2017 (693) or in any year over the past decade.2 Significantly, this increase is driven in part by an increased use of RICO by plaintiffs alleging fraud.3

B. Class Certification Based On A Presumption Of Class-wide Reliance Is Inconsistent With This Court’s Precedents

Class certification based on a presumption of classwide reliance is also inconsistent with this Court’s

decisions requiring strict compliance the requirements of Rule 23 and the Rules Enabling Act.

1. “The class action is ‘an exception to the usual

rule that litigation is conducted by and on behalf of

the individual named parties only.’” Comcast, 569

U.S. at 33 (quoting Califano v. Yamasaki, 442 U.S.

682, 700-01 (1979)). Rule 23 does not “establish an

entitlement to class proceedings for the vindication of

statutory rights.” Am. Express Co. v. Italian Colors

Rest., 133 S. Ct. 2304, 2309 (2013). It “imposes stringent requirements for certification,” id. at 2310, and

plaintiffs must “affirmatively demonstrate [their]

2 See Transactional Records Access Clearinghouse, Syracuse

University, Anti-Racketeering Civil Suits Jump in 2018 (Oct. 30,

2018), http://trac.syr.edu/tracreports/civil/535/#f2.

3 Id.

compliance” by proving that each requirement is “in

fact” satisfied. Wal-Mart, 564 U.S. at 350. “[A]ctual,

not presumed, conformance” with these requirements

is “indispensable.” Gen. Tel. Co. of Sw. v. Falcon, 457

U.S. 147, 160 (1982). Class certification based on a

presumption of common reliance is incompatible with

these precedents.

2. Class certification based on a presumption of reliance also modifies substantive rights in violation of

the Rules Enabling Act, 28 U.S.C. § 2072(b). It relieves plaintiffs of the burden of proving a critical element of a RICO claim: that the statements that

100% of the funds would go to the mission field or be

used for the specific item designated were the “but

for” cause of the donations of every class member. It

also deprives defendants of the ability to litigate their

“defenses to individual claims,” in contravention of

this Court’s holding in Wal-Mart, 564 U.S. at 367.

If a plaintiff in an individual trial asked the trier of

fact to infer that she must have donated because of a

representation that 100 percent of donations designated for the mission field would be sent to the field,

the defendants could use her own statements and donation history to refute that inference. Defendants

might show, for example, that the donor left a comment on the Gospel for Asia website saying she was

inspired to give by the Bible, or to honor a friend who

had passed away. See supra pp. 8-9. Defendants

might get her to admit that she had seen the disclaimer that Gospel for Asia retained discretion as to

how the funds were spent and thus gave with the understanding that her donation might not be used for

the precise item she checked. See supra p.5. But in a

class of over 180,000 people, it is not possible for defendants to raise such individualized defenses in a

class trial.

To avoid this problem, the court deemed such individualized evidence legally irrelevant because there

is “no charity exception for fraud,” and no “law requires that the donors’ reliance on [Gospel for Asia’s]

representations be the sole cause of [plaintiffs’] injuries.” Pet. App. 23a-24a. That logic is fundamentally

inconsistent with this Court’s cases interpreting RICO’s injury and causation elements. Because “a misrepresentation can cause harm only if a recipient of

the misrepresentation relies on it,” Bridge, 553 U.S.

at 656 n.6, a donor who understood that Gospel for

Asia retained the discretion to use donor funds for

other purposes was not injured if her donation was

used for a different item than the one she specified.

Similarly, a donor who was inspired to donate to

Gospel for Asia for some other reason (e.g., a request

by a friend) likewise suffered no injury because the

representation about the use of donor funds was not

“a ‘but for’ cause” of her donation. Id. at 654.

The failure to allow such individualized defenses is

not a mere technicality. “Article III does not give federal courts the power to order relief to any uninjured

plaintiff, class action or not.” Tyson Foods, Inc. v.

Bouaphakeo, 136 S. Ct. 1036, 1053 (2016) (Roberts,

C.J., concurring). And it is not an issue that can be

relegated to some post-judgment claims process. Because plaintiffs seek a money judgment equal to three

times the amount of the donations supposedly caused

by the alleged misrepresentations, the defenses to the

claims of each individual class member must be resolved to determine the amount of the judgment, if

any, for the class. See, e.g., McLaughlin, 522 F.3d at

223 (RICO class cannot be certified where determination of judgment for “out-of-pocket losses” requires

“an inherently individual inquiry; individual smokers

would have incurred different losses depending on

what they would have opted to do, but for defendants’

misrepresentations”); Patterson, 241 F.3d at 419 (“the

individual findings of reliance necessary to establish

RICO liability and damages preclude” class certification under Rule 23(b)(3)).

3. Although the Eighth Circuit declined to review

the class certification decision in this case, this Court

has the authority to review it on this timely petition

for writ of certiorari because defendants’ petition for

interlocutory appeal placed the case “in the courts of

appeals.” See 28 U.S.C. § 1254(1) (“Cases in the

courts of appeals may be reviewed by the Supreme

Court” by “writ of certiorari granted upon the petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree”); see also, e.g.,

Hohn v. United States, 524 U.S. 236, 241, 246-47

(1998) (case is “in the courts of appeals” for purposes

of section 1254(1) even if “a request to proceed before

a court of appeals” is “denied”); Nixon v. Fitzgerald,

457 U.S. 731, 741-43 (1982) (reviewing merits of district court decision even though the court of appeals

had declined to permit an interlocutory appeal). Indeed, the court of appeals’ denial of the petition for

interlocutory review itself raises a second question

that is independently worthy of this Court’s review:

whether there should be uniform standards for evaluating petitions for interlocutory appeal under Rule

23(f).

II. THIS COURT’S REVIEW IS NEEDED TO

RESOLVE AN ENTRENCHED CIRCUIT

SPLIT ON THE STANDARDS FOR INTERLOCUTORY APPEAL OF CLASS CERTIFICATION ORDERS UNDER RULE 23(F).

Rule 23(f) authorizes the courts of appeals to “permit an appeal from an order granting or denying

class-action certification,” but it does not specify the

standards the courts should apply. This has resulted

in a well-acknowledged circuit split, with different

circuits formulating very different standards and

one—the Eighth Circuit—refusing even to identify

the standard it purports to follow. That situation is

untenable. Petitions for interlocutory review of class

certification orders should be governed by the same

standards in every circuit, and litigants are entitled

to know what those standards are. This Court should

grant certiorari to resolve the differences in approach

among the circuits and establish uniform standards

for all of them

A. The Circuits Are Hopelessly Divided On

The Standards For Interlocutory Appeals Under Rule 23(f)

1. The First, Second, Fifth, and Seventh Circuits

have identified two situations that warrant the grant

of interlocutory review in their circuits. The first is

when the district court’s decision is “questionable”

and likely to sound the “death knell of the litigation”—either “because the representative plaintiff’s

claim is too small to justify the expense of litigation,”

or because the grant of class certification “put[s] considerable pressure on the defendant to settle.” Blair

v. Equifax Check Servs., Inc., 181 F.3d 832, 834-35

(7th Cir. 1999), see also Sumitomo Copper Litig. v.

Credit Lyonnais Rouse, Ltd., 262 F.3d 134, 138-39 (2d

Cir. 2001) (same); Waste Mgmt. Holdings, Inc. v.

Mowbray, 208 F.3d 288, 293-94 (1st Cir. 2000)

(same); cf. Regents of Univ. of Cal. v. Credit Suisse

First Bos. (USA), Inc., 482 F.3d 372, 379 (5th Cir.

2007) (adopting similar test, at least where class certification “may force a defendant to settle” (quoting

Fed. R. Civ. P. 23(f) advisory committee’s note to 1998

amendment)).

These circuits also hold that interlocutory review is

appropriate when the appeal will “facilitate the development of the law” by clarifying “some fundamental issues about class actions,” Blair, 181 F.3d at

835,” answering “a legal question about which there

is a compelling need for immediate resolution,” Sumitomo Copper, 262 F.3d at 139, or resolving “an unsettled legal issue that is important to the particular litigation as well as important in itself and likely to escape effective review if left hanging until the end of

the case,” Waste Mgmt., 208 F.3d at 294. See also

Regents, 482 F.3d at 379 (it is “appropriate to grant

leave to appeal” if “a ‘certification decision turns on a

novel or unsettled question of law’” (quoting Fed. R.

Civ. P. 23(f) advisory committee’s note to 1998

amendment)).

2. Although they generally agree that interlocutory

review is warranted in those two situations, the

Third, Ninth, Tenth and D.C. Circuits add another

ground for review: when there is “manifest error in

the district court’s certification decision.” Chamberlan v. Ford Motor Co., 402 F.3d 952, 955 (9th Cir.

2005) (per curiam). As the Tenth Circuit explained,

“where the deficiencies of a certification order are

both significant and readily ascertainable, taking into

account the district court’s discretion in matters of

class certification, interlocutory review is appropriate

to save the parties from a long and costly trial that is

potentially for naught.” Vallario v. Vandehey, 554

F.3d 1259, 1264 (10th Cir. 2009). Significantly, this

rationale for interlocutory review applies “even in the

absence of a death-knell situation,” In re Lorazepam

& Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C.

Cir. 2002), and when the error in the class certification decision “does not implicate novel or unsettled

legal questions,” Newton v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 259 F.3d 154, 164 (3d Cir.

2001); see also Chamberlan, 402 F.3d at 958 (same).

3. The Fourth, Sixth and Eleventh Circuits, in contrast,

apply

multi-factor,

totality-of-thecircumstances test. The factors identified by the

Eleventh Circuit include (1) “whether the district

court’s ruling is likely dispositive of the litigation by

creating a ‘death knell’ for either plaintiff or defendant”; (2) “whether the petitioner has shown a substantial weakness in the class certification decision,

such that the decision likely constitutes an abuse of

discretion”; (3) “whether the appeal will permit the

resolution of an unsettled legal issue that is ‘important to the litigation as well as important in itself’”; (4) “the nature and status of the litigation before the district court”; and (5) “the likelihood that

future events may make immediate appellate review

more or less appropriate.” Prado-Steiman v. Bush,

221 F.3d 1266, 1274-76 (11th Cir. 2000) (quoting

Mowbray, 208 F.3d at 294). The Sixth Circuit has

adopted a similar list of factors, see In re Delta Air

Lines, 310 F.3d 953, 960 (6th Cir. 2002) (per curiam),

as has the Fourth Circuit, which has further held

that “the ‘substantial weakness’ prong operates on a

sliding scale to determine the strength of the necessary showing regarding the other Prado-Steiman factors,” Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 14546 (4th Cir. 2001).

4. Finally, the Eighth Circuit, as reflected in its decision here, has steadfastly declined to elaborate on

the standards it uses to decide Rule 23(f) petitions.

The Eighth Circuit acknowledged the circuit split in

Liles v. Del Campo, but determined that it did not

need to “refin[e] a circuit standard” because the “facts

in [that] case” did “not favor an interlocutory appeal

under any of [the various] formulations.” 350 F.3d

742, 746 n.5 (8th Cir. 2003). In subsequent cases, the

Eighth Circuit has generally not described its reasons

for granting or denying a Rule 23(f) petition,4 although in one case it cited the Eleventh Circuit’s Prado-Steiman decision without discussion or elaboration. See Elizabeth M. v. Montenez, 458 F.3d 779, 783

(8th Cir. 2006). The Eighth Circuit is also among

“the least friendly to Rule 23(f) petitions,” granting

review much less frequently than the neighboring

Fifth Circuit, which has been “the most receptive to

Rule 23(f) jurisdiction in recent years.”5

B. This Case Provides An Excellent Vehicle

For Resolving The Circuit Split

As this Court has recognized, Rule 23(f) is “the

product of careful calibration,” intended “to provide

‘significantly greater protection against improvident

certification decisions,’” but not to an automatic right

to appeal that could cause undue delay and expense

and “‘lead to abuse’ on the part of plaintiffs and defendants alike.” Microsoft Corp. v. Baker, 137 S. Ct.

1702, 1709–10 (2017). Although the Advisory Committee’s Notes make clear that the courts of appeals

should have discretion to accept or deny petitions for

interlocutory appeal of class certification orders, they

also contemplate that the courts “will develop standards for granting review” to achieve that balance.

Fed. R. Civ. P. 23(f), advisory committee’s notes to

4 See, e.g., Postawko v. Mo. Dep’t of Corr., 910 F.3d 1030 (8th

Cir. 2018); Luiken v. Domino’s Pizza, LLC, 705 F.3d 370 (8th

Cir. 2013); In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d

604 (8th Cir. 2011); Rattray v. Woodbury Cty., 614 F.3d 831 (8th

Cir. 2010).

5 John H. Beisner, et al., Study Reveals U.S. Courts of Appeal

Are Less Receptive To Reviewing Class Certification Rulings

(Apr. 29, 2014), https://www.skadden.com/insights/ publications/2014/04/study-reveals-us-courts-of-appeal-are-less-recepti.

1998 amendment. This case provides the Court a

perfect vehicle for resolving the circuit split and making clear the standards the circuit courts should apply.

First, the Court should grant review and hold that

interlocutory review is warranted under Rule 23(f)

when an “appeal may facilitate the development of

the law” by resolving an important legal question.

Blair, 181 F.3d at 835. The Advisory Committee’s

Notes identify this as a situation in which interlocutory review is appropriate, and, as discussed in Section I, supra, it is unquestionably present here. Indeed, the question of whether a RICO class may be

certified based on a presumption of reliance is particularly appropriate because it is an example of a situation in which class certification induced a judge to

alter substantive law “in order to render the litigation

manageable.” Blair, 181 F.3d at 834. “This interaction of procedure with the merits justifies an earlier

appellate look. By the end of the case it will be too

late—if indeed the case has an ending that is subject

to appellate review.” Id.

Second, the Court should grant review to

acknowledge that interlocutory review is warranted

under Rule 23(f) when a class certification decision is

questionable and is likely to sound the death-knell of

the litigation. See Fed. R. Civ. P. 23(f), advisory

committee’s notes to 1998 amendment. The class

here seeks over $1 billion in damages, an amount

equal to three times the donations received by Gospel

for America over a period of almost ten years. Pet.

App. 5a & n.4. Plaintiffs below argued that there was

no “death knell” because defendants had vigorously

defended the case, and defendants’ potential liability

was a “meaningless” figure because they provided no

“evidence regarding the financial resources of the

parties.” Respondents’ Opposition to Petition at 3, No.

18-8012 (8th Cir. Oct. 4, 2018) (quoting PradoSteiman, 221 F.3d at 1274). But the fact that defendants “have not yet been persuaded to settle is no

reason to decline a Rule 23(f) appeal.” Regents, 482

F.3d at 379. The death-knell factor, properly understood, is not whether the class judgment would bankrupt the defendants, which it would in most $1 billion

cases. It is whether class certification so dramatically changes the stakes of the litigation that no rational

defendant would resist the pressure to settle and

thus lose the right to appeal an erroneous class certification order after entry of final judgment. See In re

Rhone-Poulenc Rorer Inc., 51 F.3d at 1297-99. The

class certification order here clearly satisfies that

test.

Finally, the Court should grant review and hold

that interlocutory review is warranted under Rule

23(f) when the certification order is based on manifest

error and interlocutory review would avoid the waste

of resources that would occur if the defective class action were to “proceed through trial to final judgment,

only to face certain decertification on appeal and a

requirement that the process begin again from square

one.” Lienhart, 255 F.3d at 145. Although this criterion is not expressly mentioned in the Advisory

Committee’s Notes (and not used in all circuits, see

supra pp. 20-21), it should apply in all circuits because it so clearly advances the goals of the Federal

Rules of Civil Procedure. See Fed. R. Civ. P. 1 (the

Rules “should be construed, administered, and employed by the court and the parties to secure the just,

speedy, and inexpensive determination of every action and proceeding”). As discussed in Section I.B,

supra, the class certification order in this case is inconsistent with this Court’s precedents, and a class-

wide judgment based on a presumption of harm cannot be affirmed on appeal. Thus, efficiency dictates

that even if the class certification order would not

sound the death knell of this litigation, which it does,

interlocutory review should be granted and the class

certification order reversed to avoid the expense of a

trial based on a fundamentally flawed view of the

law.

* ** * *

This case presents a compelling case for this

Court’s intervention because it is abundantly clear

that the Eighth Circuit is a preferred forum for plaintiffs seeking class certification. This lawsuit could

just as easily have been brought in the Fifth Circuit,

where Gospel for Asia’s headquarters is located and

where the largest number of its donors reside. If it

had been, the class either would not have been certified in the first instance or would have been reviewed

and reversed by the Fifth Circuit. Defendants’ procedural protections should not vary depending on

where plaintiffs file suit. Granting review will permit

the Court to bring uniformity to both the standards

for class certification under Rule 23(b)(3) and the

standards for interlocutory appeal of class certification orders under Rule 23(f).

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

HARRIET E. MIERS

ROBERT T. MOWREY

PAUL F. SCHUSTER

CYNTHIA K. TIMMS

W. SCOTT HASTINGS

LOCKE LORD LLP

2200 Ross Avenue

Suite 2800

Dallas, TX 75201

(214) 740-8000

CARTER G. PHILLIPS *

KATHLEEN MORIARTY

MUELLER

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Petitioners

January 25, 2019

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.