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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0951%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982

## Text

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.

EE: OE SS IES ce a

a =
ae

| fee
at x

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

|
,

BH
ath ;
iii
Bal
aie
; tee
iif
line!

;
é
:
cE at
fe £8

3

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
e

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.

a
* a4
wir: .03/@ aA

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0951%3A1. Public record. Not legal advice.