Petition — CROWN CENTER REDEVELOPMENT CORP. v. SHIRLEY STOVER (Nos. 82-0608, 82-0217, 82-0616, 82-0626)

8 2 ~ 6 0 eme Court, U.S.

No. : LED

1982

In THE A :

Supreme Court of the Wnited States cc

Octosper Term, 1982

CrOwN CENTER REDEVELOPMENT CORPORATION

and HALLMARK CARDS, INCORPORATED,

Petitioners,

Vv.

SHIRLEY STOVER, ef al.

Respondents.

CONDITIONAL CROSS-PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Ropert L. Driscoii Roeser J. Sisk

LAWRENCE M. BERKOWITZ JOHN M. TOWNSEND

RONALD A. STERN*

Stinson, Mag & Fizzell Georrrey F. ARONOW

2100 CharterBank Center

P.O. Box 19251 Hughes Hubbard & Reed

Kansas City, Mo. 64141 1201 Pennsylvania Ave., N.W.

(816) 842-8600 Washington, D.C. 20004

(202) 626-6200

JupiTH C. WHITTAKER

P.O. Box 126

Kansas City, Mo. 64141

(816) 274-4052

Attorneys for Crown Center

Redevelopment Corporation

and Hallmark Cards,

Incorporated

* Counsel of Record

QUESTIONS PRESENTED

1. Whether the district court improperly certified a

mandatory class action under Fed. R. Civ. P. 23(b)

(1)(A) to determine liability for compensatory and puni-

tive damages arising from a mass accident when the only

risk of inconsistent adjudications is that the defendants

may be found liable to some claimants but not to others.

2. Whether the district court improperly certified a

mandatory class action under Fed. R. Civ. P.

23(b)(1)(B) to determine liability for, and amount of,

punitive damages arising from a mass accident on the

theory that multiple claims for punitive damages may

create a “limited fund.”

3. Whether the district court exceeded its authority in

naming Shirley Stover as class representative without

permitting any of the parties to develop or present evi-

dence concerning her capacity to represent the class.

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TABLE OF AUTHORITIES

CASES:

Citizens Bank of University City v. Gehl, 567

S.W.2d 423 (Mo. App. 1978) ..........cccccecceeeseeees

Comegys v. Chrysier Credit Corp., 577 S.W.2d

873 (Mo. App. 1979)................ ee sins

Esler v Northrop Corp., 86 F.R.D. 20 (W.D. Mo.

|” ERI aaa RR oR a

General Telephone Co. v. Falcon, 50 U.S.L.W.

4638 (U.S. June 14, 1982)... eeeccecceseceesseses

Green v. Occidental Petroleum Corp., 541 F.2d

SN: ITU Mitiiincatitilemvtndosnernibistadadabwamasas

Hansberry v. Lee, 311 U.S. 32 (1946) .0......ccccccccee

Hoagland v. Forest Park Highlands Amusement

Co., 70 S.W. 878 (Mo. 1902 ) ........ccccccseeseeseennien

Hoene v. Associated Dry Goods Corp., 487

Rh OD | Re OO

In re . <> ng Products Liability Litigation,

506 F. Supp. 762 (E.D.N.Y. 1980)............0......

In Re Northern District of California, Dalkon

Shield IUD Products Liability Litigation, Nos.

81-4648 through 81-4656 (9th Cir. June 18,

1982, as a ed, July 15, 1982)....... ETE

In re Paris Air Crash, 622 F.2d 1315 (9th Cir.),

cert. denied, 449 U.S. 976 (1980) ..........ccccecceeee

LaMar v. H&B Novelty & Loan Co., 489 F.2d

FO a BID cccysssencictecemintipapbictituibincounsonks

McDonnell Corp. v. United States Dis-

trict Court, 523 F.2d 1083 (9th Cir. 1975),

cert. denied, 425 U.S. 911 (1976) ......cccccecccceesees

13

13

rT

15

ll

15

13

13

14

13-14

iv

a 4 : Abbott Labs, 83 F.R.D. 382 (D. Mass.

Pruitt v. Allied Chemical io 85 F.R.D. 100

CERED. Vai, CHD cevecnentiensonsescempvesneseeccscetoveccosences

v. National Football League, 584 F.2d

EG WP E Picciclinnsccaibbicangiibdenissdsherecseeese

Satterwhite v. ong of Greenville, 578 F.2d 987

7. <a 1978), vacated on other 445

Se 1981) D), on rune 634 F.2d 231

(Sth RRL IPT ED ESR oC

State ex rel. Smith v. Greene, 494 sitet 55

(Mo. 1973) (en banc) aden

Walker v. World Tire Corp., Inc., 563 F.2d 918

CN Sle UPS Biistscivedscrssitatdinndocenvciqartiqsreingnstenen

Weathers v. Peters Realty Corp., 499 F.2d 1197

EE, MiP tE iccicnbideiceseiaceesiiiialibatnectinesntonpebecenes

STATUTES:

Anti-Injunction Act, 28 U.S.C. § 2283 ..............00.

Se Tse EE WOE BD vncisnsshatcstetibithoecysesichasbeoccee

28 U.S.C. § 1292(b) iliatilsieiel esclicinesdiicsene

RULES:

DNR ats Ge INE OED idan debsbicoseinicniondenccceantincctndguesi

SEE Te Gi: FU. SEEN EME D cus vcdhacisehsshiineescnesentocaditeiin

Fed. R. Civ. P. 23(b)(1)

Fed R. Civ. P. 23(b)(1)(A)

5,7,9,

10,11

7,8,11

0

. 2

Fed. R. Civ. P. 23(b)(1)(B) ............ a

Be. BUOY, B. ZIC ES) sacs cccceoininscccctepssnccctescteciocs

MISCELLANEOUS:

Amendments to Rules of Civil Proce-

For The United States District Courts,

(1966) Committee’s Notes, 39 F.R.D. 69

A. Miller, An Overview of Federal Class Actions:

Past, Present and Future (1977) .......ccccccceeeseeee

CROWN CENTER REDEVELOPMENT CORPORATION

and HALLMARK CARDS, INCORPORATED,

Petitioners,

Vv.

SHiRLey Stover, et al.

Respondents.

CONDITIONAL CROSS-PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Crown Center Redevelopment Corporation (“Crown

Center”) and Hallmark Cards, Incorporated (“Hall-

mark” )' conditionally cross-petition for a writ of certiorari

to review the decision of the United States Court of

Appeals for the Eighth Circuit in this case.2 Crown Center

S.A. de C.V., a Mexican company.

2 Parties to the proceedings in the Eighth Circuit, Nos. 82-1181

et ee a ne, ee ae

L

2

and Hallmark request that this conditional cross-petition

for a writ of certiorari be granted only if the Court grants

the petition in Shirley Stover v. Melanie Hanson Johnson,

Gerald Stanley Johnson et al., and Jacqueline N. Rau, No.

82-217 (filed August 6, 1982).? Crown Center and Hall-

mark, however, strongly oppose the petition in No. 82-217

for the reasons set forth in their brief in opposition.‘

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

petition in No. 82-217. The opinion of the district court

granting class certification is reported at 93 F.R.D. 415.

The district court’s opinion and accompanying order are

reproduced as Appendix D to the petition in No. 82-217.

(footnote continued)

representing the members of the class who have individual actions

pending in the Missouri state courts; Crown Center

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JURISDICTION

The judgment of the Eighth Circuit was entered on

June 7, 1982. Motions for rehearing and rehearing en

banc were denied on July 9, 1982. This conditional cross-

petition is filed pursuant to Rule 20.5 of this Court. The

under 28 U.S.C. § 1254(1).

STATUTES AND RULES INVOLVED

The pertinent provisions of the statutes and rules

involved are as follows:

Federal Rules of Civil Procedure 23( a) and

23(b):

(a) Prerequisites to a Class Action. One or

more members of a class may sue or be sued as

representative parties on behalf of all only if (1)

the class is so numerous that joinder of all

members is impracticable, (2) there are ques-

tions of law or fact common to the class, (3) the

claims or defenses of the representative parties

are typical of the claims or defenses of the class,

and (4) the representative parties will fairly and

adequately protect the interests of the class.

(b) Class Actions Maintainable. An action

may be maintained as a class action if the

prerequisites of subdivision (a) are satisfied, and

S otdikin

(1) the prosecution of separate actions

by or against individual members of the

class would create a risk of

(A) inconsistent or varying

4

members of the class which would es-

tablish incompatible standards of con-

duct for the party opposing the class, or

(B) adjudications with respect to

individual members of the class which

would as a practical matter be dis-

positive of the interests of the other

members not parties to the adjudica-

tions or substantially impair or impede

their ability to protect their interests; or

(2) the party opposing the class has

acted or refused to act on grounds generally

applicable to the class, thereby making

appropriate final injunctive relief or corre-

sponding declaratory relief with respect to

the class as a whole; or

(3) the court finds that the questions of

law or fact common to the members of the

class predominate over any questions affect-

ing only individual members, and that a

class action is superior to other available

methods for the fair and efficient adjudica-

tion of the controversy. The matters per-

tinent to the findings include: ( A) the inter-

est of members of the class in individually

controlling the prosecution or defense of

separate actions; (B) the extent and nature

of any litigation concerning the controversy

already commenced by or against members

of the class; (C). the desirability or

of the claims in the particular forum; (D)

the difficulties likely to be encountered in

the management of a class action.

aaa

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5

STATEMENT

The petition in No. 82-217 and this conditional cross-

petition both stem from litigation generated by the col-

lapse of two skywalks at the Hyatt Regency Hotel in

Kansas City, Missouri, on July 17, 1981. The petitioner in

No. 82-217 seeks review of the decision of the United

States Court of Appeals for the Eighth Circuit vacating the

certification of a mandatory class action under Rule

23(b)(1) by the United States District Court for the

Western District of Missouri. Crown Center and Hall-

mark believe that the petition'in No. 82-217 should be

denied for the reasons set forth in their brief in opposition.

This conditional cross-petition is being filed in order to

raise issues concerning the impropriety of the district

court’s certification of a mandatory class action in the

event this Court were to grant the petition in No. 82-217.

These issues are integraily related to the questions present-

ed in No. 82-217 and provide an alternative ground for

affirming the judgment of the Eighth Circuit. Consid-

erations of sound judicial administration support review of

the questions presented by this conditional cross-petition if

the Court decides to grant review in No. 82-217.

1. The collapse of the Hyatt skywalks was followed

by the filing of numerous personal injury and wrongful

death actions. Of the approximately 150 cases brought

within six months of the collapse, all but 18 were filed in

the Circuit Court of Jackson County, Missouri. The few

cases not brought in Missouri state court were filed in the

United States District Court for the Western District of

Missouri. Jurisdiction in all of the cases filed in federal

court is based on diversity of citizenship pursuant to 28

US.C. § 1332.

The flood of law: uits generated by the collapse

consolidated for pretrial discovery which was coordinated

6

in the state and federal courts. Prior to the federal court’s

certification of a class action in January 1982, more than

120 bodily injury and wrongful death claims had been

settled through the payment of more than $18 million to

compensate victims and their families. See Affidavit of

Michael E. Waldeck, dated March 4, 1982 (Supplemental

Appendix in Nos. 82-1181 and 82-1207 (consolidated )

(8th Cir.), Exhibit 50).

2. In October 1981, after numerous individual state

and federal court cases had been filed, a single plaintiff,

Molly Riley, moved in federal district court for certifica-

tion of a class action. One hundred seventy-five potential

class members with claims arising from the accident filed

affidavits in opposition to that class certification motion.

See Supplemental Appendix in Nos. 82-1181 and 82-1207

(consolidated ) (8th Cir.), Exhibit 73.

On January 25, 1982, the federal court denied plain-

tiff Riley’s motion for class certification on the ground that

she had “failed to join certain parties who are needed for

a just adjudication.” Pet. App. 42a, 61a.5 After rejecting

as a class representative the only plaintiff who had sought

class action treatment, the district judge took the extraor-

dinary step of commencing his own “search of court

records in order to determine which federal! court plaintiffs

could serve as representatives of the class.” Pet. App. 43a.

Without prior notice to the parties or an opportunity for

them to address the critical question of adequacy of

representation, the court sua sponte certified a class action

and named four plaintiffs, including Mrs. Stover, as class

representatives. Pet. App. 43a, 6la. The court apparently

selected these plaintiffs as class representatives solely on

the grounds that they “have citizenships diverse from the

defendants who have been sued” and they did not record

5 Ms. Riley, a Kansas resident, had failed to join two Kansas

defendants because she lacked diversity of citizenship to them. Pet.

App. 40a, 44a.

;

Opposition to the certification of a class action. Pet. App.

43a. Soon after the court issued its class certification

order, it was discovered that two of the plaintiffs named as

class representatives by the federal judge lacked the

necessary diversity of citizenship and that a third had

already settled his claim. Mrs. Stover thus remained as

the only representative of the plaintiff class.

The federal court’s order established a mandatory

class action under Rule 23(b)(!). The court certified a

class action under Rule 23(b)(1)(A) on the issues of

liability for compensatory and punitive damages and

under Rule 23( b)( 1)(B) on the issues of liability for, and

amount of, punitive damages. Pet. App. 50a-55a. The

court certified the Rule 23(b)(1)(A) class in order to

protect the defendants “from inconsistent adjudications on

the liability issues.” Pet. App. Sia. The court certified the

issues of liability for, and amount of, punitive damages

under Rule 23(b)(1)(B) because “the funds available to

pay for punitive damages appear to be limited.” Pet. App.

53a.

While the district court stated that settlements of

“actual damages” could continue, it ruled that “claimants

who want to exact payment for allegedly punishable acts

must forego the settlement process and await the trial of

the punitive damage issues.” Pet. App. 60a. Because

claimants could no longer enter into comprehensive settle-

ments of their claims for actual and punitive damages, the

settlement process was halted by the district court’s order

and no additional claims were settled until the class

certification was vacated by the Eighth Circuit.

3. The district court refused to certify its class action

order for interlocutory appeal under 28 U.S.C. § 1292(b).

® The court also took the unusual step of appointing Ms. Riley's

attorneys as lead class counsel even though did not represent any

of the named class representatives and their had been rejected

as an inappropriate class representative. Pet. App. 48a.

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Therefore, both a petition for mandamus and an appeal

under 28 U.S.C. § 1292(a)(1) were filed by individual

members of the class who objected to the certification.

The court of appeals consolidated these cases and, on June

7, 1982, vacated the class certification order.

The Eighth Circuit found that, “contrary to the class’s

assertion, the district court expressly prohibited class

members from settling their punitive damage claims.” Pet.

App. 9a. As a result, the court of appeals concluded “on

the facts before us” that the “substantial effect of the

order” was injunctive in character and that the order

therefore was appealable under 28 U.S.C. § 1292(a)(1).

Pet. App. 8a-9a. The Eighth Circuit held that the

certification order violated the Anti-Injunction Act, 28

U.S.C. § 2283, because it prevented the settlement and

prosecution of actions pending in state court. It found that

the only exception to the Act invoked by the class—the

exception for injunctions necessary in aid of the federal

court’s jurisdiction——did not apply on the facts of this case.

Pet. App. 12a-15a. In vacating the class certification

order, the majority rested exclusively on the Anti-

Injunction Act.

Judge Heaney, in his dissent, agreed that the “district

court’s class certification order expressly prohibits class

members from settling their punitive damage claims” and

thus constituted an “express injunction.” Pet. App. 19a

n.l; 34a n.16. He departed from the majority in con-

cluding that, if modified to delete the prohibition against

settlements, the inherent restrictive effects of the order

certifying a mandatory class action would come within the

exception to the Anti-Injunction Act for injunctions neces-

sary in aid of the federal court’s jurisdiction. Pet. App.

33a-37a & nn.16-17. Judge Heaney also found that “the

district court’s reliance on Rule 23(b)(1)(A) was mis-

placed,” but concluded that a class action on the issues of

”

9

liability for compensatory and punitive damages and the

amount of punitive damages was properly certified under

Rule 23(b)(1)(B). Pet. App. 23a-27a.

REASONS FOR GRANTING THE PETITION

If the Court decides to grant the petition in No. 82-

217, it should also grant this conditional cross-petition for

the reasons set forth below.

1. The conditional cross-petition raises issues con-

cerning the impropriety of the district court’s certification

of a mandatory class action that are closely connected to

the questions presented by the petition in No. 82-217.

Petitioner in No. 82-217 asserts that the Eighth Circuit’s

“decision eviscerates mandatory class actions in the feder-

al courts” (Pet. 7) and asks this Court to rule that the

district court’s injunction against pending state court ac-

tions was necessary in aid of its jurisdiction to certify a

mandatory class action ( Pet. 10-14). However, unless the

Court first examines the threshold class certification issue

and concludes that the district court correctly certified a

Rule 23(b)( 1) class action, it would simply be rendering

an abstract, advisory ruling on the Anti-Injunction Act.

2. Sound judicial administration also requires that

the conditional cross-petition be granted if the Court

decides to review the judgment of the Eighth Circuit.

Such review would entail a significant delay in the trial of

the claims of many of the victims of the skywalk collapse.

If such a delay were to occur, it should at least produce a

definitive ruling regarding the procedural posture of these

cases.

A ruling on the merits of the questions presented in

the petition would not clarify the procedural status of

these cases unless the class action issues raised in the

10

conditional cross-petition are also resolved. If the Eighth

Circuit’s Anti-Injunction Act decision were upheld by this

Court, the parties would still face the question whether a

Rule 23({b)(1) class could be ordered for all claimants

other than those who have already commenced actions in

state court.” Similarly, if this Court were to reverse the

Eighth Circuit’s decision without addressing the class

action issue, the parties would be required to return to the

Eighth Circuit for a decision on the class action questions,

since those questions were not reached by the majority in

the court of appeals. As noted below (pp. 11-14, infra),

an Eighth Circuit decision sustaining the certification of a

manaatory class action would create a conflict among the

circuits that in turn would require further review by this

Court.® In these circumstances, if the petition in No. 82-

217 is granted, the strong policy against piecemeal adjudi-

cation supports the grant of the conditional cross-petition

to enable this Court to resolve in a single proceeding the

issues raised by the district court’s class certification.

In addition, if the Court undertakes review of the

Eighth Circuit’s decision, it should have the benefit of

briefing and argument by the parties on the full range of

alternative dispositions. Since it might rely on the impro-

priety of the class action certification as an alternative

basis for affirming the judgment of the Eighth Circuit, the

Court should grant the cross-petition to assist its consid-

eration of the class action issues.

hi

3. The district court's certification of a mandatory

class action in this case under Rule 23(b)(1) is clearly in

error and conflicts with courts of appeals’ decisions as well

as decisions of this Court.

a. The district court certified a Rule 23(b)(1)(A)

class on the issues of liability for compensatory and

punitive damages in order to protect the defendants in the

skywalk cases “from inconsistent adjudications on the

liability issues.” Pet. App. S5la. Numerous courts have

found, however, that this rationale is wholly inadequate to

support certification of a Rule 23(b)(1)(A) class action.

See, e.g., Green v. Occidental Petroleum Corp., 541 F.2d

1335, 1340 & n.10 (9th Cir. 1976); McDonnell Douglas

Corp. v. United States District Court, 523 F.2d 1083, 1086

(9th Cir. 1975), cert. denied, 425 U.S. 911 (1976); Esler v.

Northrop Corp., 86 F.R.D. 20, 37-38 (W.D. Mo. 1979).

As one commentator explained:

“Rule 23(b)(1)(A) does not include a situation

in which the risk of inconsistent results in a series

of individual actions simply means that the

defendant would prevail in some cases and not

in others and therefore would have to pay dam-

ages to some claimants but not to others. Exam-

ples would be mass tort cases or any other typical

actions.” A. Miller, An Overview of

' Federal Class Actions: Past, Present and Future

43 (1977).

Under the district court’s reasoning, all mass tort

cases would become mandatory class actions. Moreover,

as the Ninth Circuit noted in connection with a similar

class certification, such an interpretation of Rule

23(b)(1)(A) would “render superfluous the detailed

provisions of subdivision (b)(3)” and therefore must be

rejected as “untenable.” McDonnell Dougics Corp. v.

United States District Court, supra, 523 F.2d at 1086.

dee r

12

b. The district court’s certification of a class under

Rule 23(b)(1)(B) is equally infirm. Rule 23(b)(1)(B)

requires a finding “that individual adjudications might as

a practical matter dispose of the interests of other class

members or substantially impair or impede their ability to

protect their interests.” Reynolds v. National Football

League, 584 F.2d 280, 283 (8th Cir. 1978). Reliance on a

Rule 23(b)(1)(B) class action is appropriate “when

claims are made by numerous persons against a fund

insufficient to satisfy all claims.” Proposed Amendments to

Rules of Civil Procedure for the United States District

Courts, Advisory Committee’s Notes, 39 F.R.D. 69, 101

(1966).

The district court acknowledged, however, that the

record in this case does not support a Rule 23(b)(1)(B)

class action for compensatory damages since “the avail-

ability of sufficient funds to cover the claims for com-

pensatory damages is not presently in question.” Pet. App.

52a. The district court nevertheless concluded that the

skywalk cases came within the “limited fund” rationale

because “there is the possibility that few, if any, defen-

dants will be found liable for punitive damages” and that

the law may not permit “more than one award of punitive

damages” against a defendant for a single wrongful act.

Pet. App. 53a.

Rule 23(b)(1)(B), however, is inapplicable to

claims for punitive damages. The basic prerequisite for a

Rule 23(b)(1)(B) class action—a threat to “ ‘the sub-

stance of the rights of others having similar claims,’”

McDonnell Douglas Corp. v. United States District Court,

supra, 523 F.2d at 1086, quoting LaMar v. H&B Novelty &

Loan Co., 489 F.2d 461, 467 (9h Cir. 1973)—is not

present because no plaintiff has a right to recover punitive

damages. As this Court has recertly noted:

“Punitive damages by definition are not

intended to compensate the injured party, but

13

rather to punish the tortfeasor whose wrongful

action was intentional or malicious, and to deter

him and others from similar extreme conduct.”

Newport v. Fact Concerts, Inc., 453 U.S. 247,

266-67 (1981).9

“So far is this opportunity [to recover punitive damages ]

from being a fundamental personal right that it is an

interest not truly personal in nature at all.” Jn re Paris Air

Crash, 622 F.2d 1315, 1319-20 (9th Cir.), cert. denied,

449 U.S. 976 (1980).

The limited fund rationale is also inapplicable to

punitive damage claims in this case since, under Missouri

law, the net worth of the defendant is a factor in determin-

ing the amount of an award of punitive damages.'° The

self-adjusting nature of punitive damages distinguishes

punitive damage claims from the paradigm “limited fund”

case in which multiple creditors assert individual claims

for actual damages that, when realistically assessed, ex-

ceed the defendant’s net worth.

In addition to these fundamental deficiencies, the

district court plainly erred in relying on the total amount

of punitive damages requested by the skywalk plaintiffs in

their complaints as a basis for invoking the “limited fund”

rationale. As numerous courts have held, a class action

may not be certified on a “limited fund” theory based

upon the prayers for damages set forth in the plaintiffs’

complaints. See, e.g., Jn re Northern District of California,

deserves

pe gon tingy cgay 70 S.W. 878, 880 ( Mo. 1902); see State ex

Smith v. Greene, 494 S.W.2d 55, 60 (Mo. 1973) (en banc).

© See. e.g., Hoene v. Associated Dry Goods Corp., 487 $.W.2d

, 486 (Mo. 1972); Comegys v. Chrysler Credit Corp., 577 $.W.2d

880 (Mo. App. 1979); Citizens Bank of University City v. Gehl,

567 S.W.2d 423, 426 (Mo. App. 1978).

14

Dalkon Shield IUD Products Liability Litigation, Nos. 81-

4648 through 81-4656, slip op. at 3033 (9th Cir. June 18,

1982, as amended, July 15, 1982); Jn re Agent Orange

Products Liability Litigation, 506 F. Supp. 762 (E.D.N.Y.

1980); Pruitt v. Allied Chemical Corp., 85 F.R.D. 100

(E.D. Va. 1980); Payton v. Abbott Labs, 83 F.R.D. 382

(D. Mass. 1979).1' Since large punitive damage awards

are routinely requested but are rarely awarded in

nonintentional tort cases, punitive damage claims are a

particularly inappropriate gauye of the existence of a

“limited fund” justifying the certification of a Rule

23(b)(1)(B) class action. '2

The rationale underlying the district court’s certifica-

tion of a Rule 23(b)(1)(B) class action for punitive

damages should be rejected since it would transform all

wiass tort cases involving punitive damage claims into

mandatory class actions and would automatically deprive

individual plaintiffs of the ability to control their personal

injury or wrongful death cases through counsel of their

own choosing.

c. The district court also ignored its responsibility

under Rule 23(a)(4) to ensure that “the representative

parties will fairly and adequately protect the interests of

"In the Dalkon Shield case, the Ninth Circuit held that the

district court in this matter certified the class under Rule 23( b)( 1)( B)

simply because of the possibility that a limited fund may exist. Pet.

App. 52a-53a.

‘2 The erroneous nature of the district court’s application of the

“limited fund” rationale is underscored by its assertion that a limited

fund is present in these cases because it is possible that “few, if any,

15

the class.”'? As this Court recently reiterated, a class

action “may only be certified if the trial court is satisfied,

after a rigorous analysis, that the prerequisites of Rule

23(a) have been satisfied.” General Telephone Co. v.

Falcon, 50 U.S.L.W. 4638, 4642 (U.S. June 14, 1982).

Adequacy of representation ordinarily cannot be deter-

mined on the basis of the pleadings alone. See, ¢.g.,

Satterwhite v. City of Greenville, 578 F.2d 987, 998 (Sth

Cir. 1978), vacated on other grounds, 445 US. 940

(1980); Weathers v. Peters Realty Corp., 499 F.2d 1197,

1200 (6th Cir. 1974). Rather, “the parties must be

afforded the opportunity to discover and present

evidence on the issue.” Walker v. World Tire

Corp., Inc., 563 F.2d 918, 921 (8th Cir. 1977).

The district court here erred in certifying a class

action without any record concerning adequacy of repre-

to the critical question of adequacy of representation were

underscored by the fact that, soon after entry of the sua

sponte class certification, three of the four plaintiffs named

by the court as class representatives had to be removed as

16

CONCLUSION

If review is granted in No. 82-217, this conditional

cross-petition should also be granted.

Respectfully submitted.

Ropert L. Driscoi. Rosert J. Sisk

LAWRENCE M. BERKOWITZ JouN M. TOWNSEND

RONALD A. STERN

Stinson, Mag & Fizzell Gerorrrey F. ARONOW

Kansas City, Missouri

Hughes Hubbard & Reed

Washington, D.C.