Opposition Brief — General Motors Corp. v. Ford

5

would be premature. See GM Pet. in Okla. S. Ct. 3n.1 (arguing

that, without a final determination of what state’s law will

apply, “review of whether a trial court's certification of a

nationwide class comports with the due process, full faith and

credit, and commerce clauses is virtually impossible.”). In

short, even as to the federal questions presented in the petition,

the decision below is “avowedly interlocutory.” Jefferson v.

City of Tarrant, 522 U.S. 75, 81 (1997).

Second, in light of Coopers & Lybrand v. Livesay, 437

U.S. 463 (1978), petitioner cannot show that a refusal to review

the decision below immediately msks a serious erosion of

federal policy. Coopers & Lybrand held that “[a]n order

passing on a request for class certification” is not a final order,

and hence is not appealable as a collateral order under 28

U.S.C. § 1291. Id. at 469. The Court found no reason to allow

immediate review for three reasons, each of which ts equally

applicable here: (1) that the “order is subject to revision” by the

trial court, (2) that “the class determination generally involves

consideratiens that are ‘enmeshed in the factual and legal issues

comprising the plaintiffs’ cause of action,’” and (3) that the

order “is subject to effective review after final judgment.” /d.

(citations omitted).

Of particular relevance to the “erosion of federal policy”

factor, Coopers & Lybrand dismissed th2 parties’ competing

policy arguments about the consequences of class action

litigation as immatenal to the question of finality. Jd. at 470.

(“Such policy arguments, though proper for legislative

consideration, are irrelevant to the issue we must decide.”). The

Court also rejected the notion that, absent appellate rules to the

contrary, appeals in class actions should be governed by rules

different from ordinary litigation. /d. (“The appealability of

any order entered in a class action is determined by the same

6

standards that govern appealability in other types of

litigation.”). Because petitioner can make no convincing claim

of erosion of federal policy that is not common to virtually all

orders granting class gertification in large class actions, the

fourth Cox exception does not apply. Johnson v. California,

541 U.S. 428, 430 (2004); Florida v. Thomas, 532 U.S. 774,

780 (2001). “A contrary conclusion would permit the fourth

exception to swallow the rule.” Flynt v. Ohio, 451 U.S. 619,

622 (1981) (per curiam).

Petitioner attempts to limit the reach of Coopers &

Lybrand on the ground that the particular order at issue there

was an order denying rather than granting certification. Pet. 27

n.5. But Coopers & Lybrand specifically rejected any attempt

to draw a distinction, for finality purposes, between orders

granting and denying certification. On the contrary, the Court

made clear that “orders granting class certification are

interlocutory.” 437 U.S. at 476 (emphasis added). The Court

recognized that class certification may often be of “critical

importance” to defendants, and took note of the msk that

“[cJertification of a large class” may pressure defendants to

settle—the same policy concerns on which GM relies here. Id.

Nevertheless, the Court explained that “[w]hatever similarities

or differences there are between plaintiffs and defendants in this

context involve questions of policy for Congress.” Id. at 476 &

n.28 (citing Baltimore Contractors v. Bodinger, 348 U.S. 176,

181-82(1955)). Notably. in 1998, Congress exercised its policy

judgment and allowed limited discretionary appeals within the

federal courts from “order{s] granting or denying class

certification.” Fed. R. Civ. P. 23(f), but has not seen fit to

modify section 1257 to permit review of interlocutory state

court certification orders by this Court. And even under Rule

23(f), the federal courts of appeals have “unfettered discretion

whether to permit the appeal,” and are instructed. on the basis

7

of a Federal Judicial Center study, that “many suits with class-

action allegations present familiar and almost routine issues that

are no more worthy of immediate appeal than many other

interlocutory rulings.” Fed. R. Civ. P. 23(f), Advisory

Committee Notes.

That this case comes from a state rather than a federal

court only reinforces the conclusion that the Court lacks

jurisdiction. Section 1257’s finality requirement serves not

only the same interest in efficient judicial administration that

underlies section 1291, but also “serves an important interest of

comity.” Adams v. Robertson, 520 U.S. 83, 90 (1997). For this

reason, section 1257 establishes a particularly “firm” rule and

“is not one of those technicalities to be easily scorned. It is an

important factor in the smooth working of our federal system."”’

Jefferson, 522 U.S. at 486 (quoting Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120, 124 (1945)); see also Cox Broad.

Corp., 420 U.S. at 503 (1975) (Rehnquist, J., dissenting)

(“[T]he underlying concerns [in §§ 1257 and 1291] are

different, and that difference counsels a more restrictive

approach when § 1257 finality is at issue.) (emphasis added).

II. Petitioner Did Not Present to the Oklahoma

Supreme Court the Principal Federal Issues On

Which It Seeks Review.

The petition’s central argument is that the Due Process

Clause requires an “individualized” choice-of-law analysis, and

that the decision below runs afoul of such a requirement. Pet.

5-17. In its brief to the Oklahoma Court of Civil Appeals, GM

argued that the tnal court's choice-of-law analysis violated due

process,’see GM Apl. Br. 9-23, and the court, relying on

Ysbrand, rejected that argument. See Pet. 6a (citing Ysbrand,

81 P.3d at 625-626; Phillips Petroleum Co. v. Shutts, 472 U.S.

797, $18 (1985)). GM, however, completely omitted this issue

from its petition to the Oklahoma Supreme Court. Indeed, GM

fell short of making even the sort of “passing invocations of

‘due process'” that this Court has found insufficient to meet the

“minimal requirement that it must be clear that a federal claim

was presented.” Adams, 520 U.S. at 89 n.3. Similarly, the

petition argues that the decision below runs afoul of

constitutional limits on extraterritorial regulation, Pet. 17-20,

but GM did not raise thatissue in its petition to the Oklahoma

Supreme Court either.”

“{WJhen the highest state court fails-or refuses to pass

expressly upon a federal question, the party invoking the

Supreme Court's jurisdiction has the high burden of showing

that the federal question was in fact properly raised, so that the

state court's failure to deal with it was not for want of proper

presentation.” Stern. Gressman. et al., Supreme Court Practice

175 (8th ed. 2002); see Street v. New York, 394 U.S. 576, 582

(1969). Because “it would be unseemly in our dual system of

government to disturb the finality of state judgments on a

federal ground that the state court did not have occasion to

consider,” this “rule affords state courts an opportunity to

consider” the questions presented in the first instance. Adams,

520 U.S. at 90 (internal citauion omitted); id. (state's highest

court “has an undeniable interest in having the opportunity to

determine in the first instance whether its existing rules

governing class-action|s] satisfy the requirements of due

process”). The Oklahoma Supreme Court did not have that

opportunity and, accordingly, this Court should deny review.

“The only federal constitutional issue that GM presented to the state's

highest court was its argument that the certification order violated due

process because the class notice would be constitutionally inadequate. See

GM Pet. to Okla. S. Ct. 8-10; see also Pet. 20-22 (making same argument).

9

That conclusion follows regardless of whether the Court treats

the requirement as prudential or jurisdictional. /d.; Yee v. City

of Escondido, 503 U.S. 519, 533 (1992).’

III. No Court Has Adopted the Due Process Analysis

Urged by Petitioner.

Petitioner asserts that the decision below conflicts with

decisions that “require, in the context of a putative nationwide

class action, that choice-of-law principles be applied to each

potential plaintiff, not to the litigation as a whole with the goal

of certifying a class.” Pet. 6. Even if the Court were to assume

that it has jurisdiction and were to overlook petitioner’s waiver

of this issue, review would still be unwarranted because there

is no such conflict.

In assessing the constitutionality of choice-of-law

decisions in class actions, the Oklahoma courts faithfully apply

this Court’s holding in Phillips Petroleum Co. v. Shutts, 472

U.S. 797, 818 (1985): “[FJor a state’s substantive law to be

selected in a constitutionally permissible manner, that state

must have a significant aggregation of contacts, creating state

interests, such that choice of its law is neither arbitrary nor

fundamentally unfair.” /d. at 818 (quoting Allstate Ins. Co. v.

‘The petition should also be denied because it violates this Court's Rule

14.1(g)(i), which requires the petitioner to specify when and where the

federal questions sought to be reviewed were raised in the state courts,

including “pertinent quotations of specific portions of the record or summary

thercof, with specific reference to the places in the record where the matter

appears.” The petition states only that GM raised “federal-law issues” in its

petition to the Oklahoma Supreme Court, without elaboration. Pet. 4. “This

general citation fails to comply with our requirement that petitioners provide

us with ‘specific reference to the places in the record where the matter

appears." Adams, 520 U.S. at 89 n.3 (emphasis 1n original).

10

Hague, 449 U.S. 302, 312-313 (1981) (plurality opinion)): see

Pet. App. 6a.

None of the cases that GM cites holds that due process

forbids a court from considering whether a single state's law

may apply to claims of a class of plaintiffs who. as here, have

identical significant contacts with that state. Nor do any of the

cited cases hold that Shutts prohibits a choice-of-law analysis

that accounts for the class-action nature of claims as long as

significant contacts otherwise exist. Instead, the cases cited in

the petition uniformly identify a general constitutional

requirement—which no one disputes—that the claims of all

individual members of the plaintiff class have significant

contact with the state. To the extent they speak of “an

individualized choice-of-law analysis” at all, Pet. 10. courts

require noihing more than the standard significant contacts

analysis employed by the Oklahoma appellate courts, both here

und in Ysbrand. See Pet. App. 5a-6a (choice-of-law analysis

must be consistent with the “constitutional imperative” that the

state whose law will be applied to the plaintiffs’ claims has

“[*Jasignificant aggregation of contacts, creating state interests,

such that choice of its law is neither arbitrary nor fundamentally

unfair’) (quoting Ysbrand, 81 P.3d at 625-26 (quoting Shutts,

472 U.S. at 818)).

*See. e.g., Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718. 725 1.6

(1 ith Cir. 1987) (ciung Shurts for proposition that “the law of Georgia could

be applied consistent with due process only if the particular transaction had

\some significant relation to Georgia”), Walsh v. Ford Motor Co., 807 F.2d

1000, 1016 n.90( D.C. Cir. 1986) (interpreting Shutrs to require that the state

whose law was applied “had a significant relationship to each class

member's claim”); Clarke v. TAP Pharm. Prods., Inc.,798 N.E.2d 123, 129

(Il. App. Ct. 2003) (finding a state's law can be applied to a class action

consistent with Shutts when the state “has significant contact or aggregation

of contacts to the claims asserted by each member of the plaintiff class”).

11

Several of the cases that GM cites examine only a lower

court’s failure to conduct any choice-of-law analysis.” Not

surprisingly, therefore, these cases find only that the lower

courts should have conducted some analysis that—consistent

with Shutts—did not assume that the forum state’s law would

apply to a nationwide class.° Consistent with these holdings,

the Oklahoma appellate court did conduct a preliminary

analysis of the choice-of-law issue in accordance with Ysbrand.

Moreover, in none of cases cited in the petition did the courts

reject certification in the face of a developed argument that a

single state had significant contact with all the claims. See, e.g.,

Walsh, 807 F.2d at 1016 (noting that the party seeking

certification of nationwide class action treated choice-of-law

decision as “academic’’).

The other cases GM cites do not rest on due process

principles at all, but are instead determinations based on various ~

*Georgine v. Amchem Prods., Inc., 83 F.3d 610, 626 (3d Cir. 1996)

(holding that mere existence of settlement does not show that Rule 23(a)

commonality requirement is met), aff'd sub nom. Amchem Prods., Inc. v.

Windsor, 521 U.S. 591 (1997); Walsh, 807 F.2d at 1016 (noting that the

district court explicitly declined to consider application of multiple states’

law); Debbs v. Chrysler Corp., 810 A.2d 137, 159 (Pa. Super. Ct. 2002)

(“The record fails to reflect an analysis of the choice-of-law tssue.”’).

See Walsh. 807 F.2d at 1016 (“Appellees see the ‘which law’ matter as

academic. .. . : A court cannot accept such an assertion ‘on faith.“”); Debbs,

810 A.2d at 159 (“{A] trial court can not sidestep choice-of-law issues by

declaring that the class action would be governed by [the forum state's]

law.”’).

®.

states’ choice-of-law doctrine.’ These cases differ from the

decision below only in that those states’ choice-of-law doctrines

differ—either in theory or in application—from Oklahoma's.

None of these courts found that Shurts mandated deviating from

the dictates of state choice-of-law doctrine.

When applying Shutts to the actual issue presented in

this case—whether due process permits a state's choice-of-law

doctrine to apply to a nationwide class of plainuffs the iaw of

a single state with a significant relationship to the

claims—courts across the nation, without exception, come to

the same conclusion as the Oklahoma courts. In short, when the

court does not merely assume that the forum state's substantive

jaw applies to the claims of all the plaintiffs in a nationwide

class action but instead determines that one state has significant

contact with the claims of all plaintiffs, courts have always

” See Zinser v. Accufix Research Inst.. 253 F.3d 1180, 1187 (9th Cir.

2001) (examining whether Colorado law would apply to a plainuff class

under California's government-interest doctrine after noting plaintiffs’

concession that the application of California law would violate Shurts);

Airkpatrick, 827 F.2d at 725 & n.6 (determining that Georgia's /ex loc:

dehen doctrine would require application of multiple states” law for class

action with nationwide class); Henry Schein, Inc. v. Stromboe, 102 S.W 3d

675, 696-98 (Tex. 2002) (refusing to apply manufacturer's state's law to

nationwide plaintiff class under Texas choice-of-law doctrine with no

reference to due process); Tracker Marine, LP. v. Ogle, 108 S.W.3d 349,

355-59 (Tex. App. 2003) (refusing to apply manufacturer's state's law to

claims by plaintiff nationwide class under Schein and other state-law

precedents without further reference to opening observation that due process

limits choice-of-law). The subsequent decision in Compag Computer Corp.

v. Lapray. 135 S.W.3d 657 (Tex. 2004), which 1s not cited in the petition,

likewise straightforwardly apphes Texas choice-of-law doctrine without

further reference to the opening observation that choice-of-law must comply

with due process. See id. at 680-81.

13

found the state’s choice-of-law decision constitutionally valid.’

* See, €. g..in re Lutheran Bhd. Variable Ins. Prods. Co. Sales Practices

Litig., 201 F.R.D. 456, 461 n.1 (D. Minn. 2001) (finding no due process

violation in applying the law of the state where defendant had its

headquarters to a nationwide class action); Simon v. Phillip Morris, Inc., 124

F. Supp. 2d 46, 69-70 (E.D.N.Y. 2000) (“{Defendants] assert that, even

assuming that defendants did substantial business in the forum state and

conducted a national fraud from the forum state, its courts may not apply

forum law to individual claims of non-forum residents whose injuries were

suffered in their home states. Shutts, however, has not been read so

narrowly.”); Jn re Computer Memories Sec. Litig., 111 F.R.D. 675, 686-87

(N.D.Cal. 1986) (“Evidently, defendants believe that the Shurts test can only

be satisfied by a court's making specific findings regarding the [state's]

contacts to each class member's claims, name-by-name. The Court finds no

basis for interpreting Shutts in such a way. The Shutrs opinion merely

requires a showing that there are sufficient contacts between the forum state

and each individual class member's claims to create forum interests in the

litigation such that application of forum law will not be arbitrary or unfair.

When a court finds that this requirement can be satisfied by simply

considering contacts that apply generally to every class member's claims. the

court necd not articulate how the contacts apply in each class member's

case."): In re LILCO Sec. Litig., 111 F.R.D. 663, 670 (E.D.N.Y. 1986)

(“Without doubt, Shuits does not require us to apply the law of each state in

which the plaintiffs reside nor does it prohibit the application of onc state's

law to all plaintiffs, regardless of residence.”); In re Activision Sec. Litig.,

1985S WL 5827 at *1 (N.D. Cal. Dec. 2, 1985) (“[DJefendants contend that

under Shurts ‘blanket’ application of [a state's] law to the common law

claims of all plaintiffs would be unconstitutional .... Defendants read

Shutts too broadly and confuse constitutional limitations upon application of

a State's law with the application of state choice-of-law rules.”); Washington

Mut. Bank, FA v. Superior Court, 15 P.3d 1071, 1081 (Cal. 2002) (holding

state choice-of-law doctrine could constitutionally assign burden to

defendant to demonstrate appropriateness of another state's law as long as

significant contacts exist); Macomber v. Travelers Prop. & Cas., 2004 WL

1559183 at *9 (Conn. Super. Ct. May 26, 2004) (holding that claims of

entire plainuff class had constitutionally sufficient contact with state when

defendant's headquarters were located in the state).

14

At bottom, petitioners’ complaint is with the Oklahoma

courts’ holding that their own choice-of-law jurisprudence

allows application of the law of a single state to U.C.C.

warranty claims. But this is a decision on a matter of state law

that our federal system leaves to the courts of Oklahoma. This

Court has long recognized the night of states to adopt distinctive

choice-of-law doctrines that must be respected by the federal

courts, see Klaxon Co. v. Stentor Elec. Mfg. Co.. 313 U.S. 487,

496 (1941), and it has specifically refused to reconsider this

deference even when pressed to do so by the circuit courts. See

Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3,4 (1975) (per

cunam).

Finally, the Court should deny review because the

importance of the question presented is significantly diminished

by the enactment of the Class Action Fairness Act of 2005

(“CAFA”), which grants the federal courts jurisdiction over

most class actions in which class members reside outside the

forum state. See Pub. L. No. 109-2, § 4(a). 119 Stat 4, 9-12 (to

be codified at 28 U.S.C. § 1332(d)) (providing federal courts

with original jurisdiction in class actions seeking more than $5

million in damages when at least one class member has diverse

citizenship from at least one defendant). GM_ itself

acknowledges that CAFA’s passage greatly reduces the

significance of this case. See Pet. 5 n.3 (suggesting that review

by this Court would affect only those cases pending in state

court before CAFA’s enactment).

IV. No Court Has Rejected a State Choice-of-Law

Ruling Supported by Significant Contacts on the

Ground That It Violates Constitutional Limits on

Extraterritorial Regulation.

GM's second basis for secking certiorari is even further

15

afield than the first. To make its argument, GM must liken the

-application of Oklahoma's significant contacts analysis to

instances in which this Court has found that a state violates the

Commerce Clause or Due Process Clause by engaging in

wholly extraterritonal regulation, i.e., regulation having no

contact with the regulating state. See Pet. 17-20. But GM is

unable to identify a single decision that has rejected a choice-of-

law determination supported by a state's significant contact

with the claim on the basis of extraterntonal regulation. On the

contrary, every court to address this interplay of choice-of-law

doctrine and the constitutional limits on extraterritonal

jurisdiction has held that no constitutional violation ts possible

once a state's law is judged to have a connection to the claims

at hand.”

GM argues that the application of a single state's law in

this nationwide class action fails to honor the choice of

substantive legal protections made by the class members’ states

of residency. Pet. 17. But such an outcome is inevitable in any

choice-of-law decision where multiple states arguably have a

"See. ¢ g.. Gravquick A/S v. Trimble Navigation Int'l Lid., 323 F.3d

1219, 1224 (9th Cir. 2003) (finding California statute “does not regulate

commerce entirely outside of California” because “[i}t applies only to

contracts that have sufficient connections with California to support a

California choice of law”), Instructional Sys., Inc. v. Computer Curriculum

Corp., 35 F.3d 813. 825 (3d Cir. 1994) (“In traditional contract ligation,

courts must apply some state's law to interpret the contract. While a contract

which covers multiple states may raise a difficult choice-of-law question,

once that question ts resolved there 1s nothing untoward about applying one

state’s law to the entire contract, even if it requires applying that state's law

to activitics Outside the state.”); /nstructional Sys.. Inc. v. Computer

Curriculum Corp., 614 A.2d 124, 147 (NJ. 1992) (equating constitutional

restnctions placed on choice-of-law determinations by the prohibition of

extratcrritonal regulation and due process limitations of Allstate)

16

connection to the claims. Thus, GM's position would

seemingly render unconstitutional any choice between these

states’ law. This Court has made clear. however, that multiple

choice-of-law outcomes in a given situation may satisfy the

Constitution. See Shutts,472 U.S. at 823 (“[1]n many situations

a stute court may be free to apply one of several choices of

law.”); Allstate, 449 U.S. at 307 (plurality op:nion) (noting “the

recognition, long accepted by this Court, that a set of facts

giving rise to a lawsuit, or a particular issue within a lawsuit,

ma\ justify, in constitutional terms, application of the law of

more than one jurisdiction’).

Even assuming that GM's position were correct in

theory. the application of the prohibition on extraterritorial

regulation to this case—like the due process claim under

Shutts—founders on the Oklahoma courts’ requirement that

only the law of a state with significant contacts to the claims of

all class members may be applied. As the very standard cited

by GM indicates, the Commerce Clause’s ban on extraterritorial

regulation is implicated only when a state's law has the

“undeniable effect of controlling commercial activity occurnng

wholly outside the boundary of the state.” Pet. 17-18 (emphasis

added) (quoting Healy v. Beer Institute, 491 U.S. 324, 337

(1989)) (internal quotation marks omitted). But here, the

relevant commercial activity occurred within both GM's home

State und the forum state, where the cars were manufactured.

When a state regulates activity occurring within that state. this

Court has sustained such regulation even if it affects economic_

activity in other states, unless it “impose[s] burdens on

interstate trade that are ‘clearly excessive in relation to the

putative local benefits.” Am. Trucking Ass'ns, Inc. v. Mich.

Pub. Serv. Comm'n, 125 S.Ct. 2419, 2424 (2005) (quoting Pike

v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). GM mukes

no claim, nor could it, that the state in which a manufacturer

17

conducts business or manufactures its products has a

constitutionally insufficient interest in ensuring the safety of

consumers affected by business activities in the state.

Similarly, this Court’s punitive damages cases have held

that the Due Process Clause invalidates state law as

unconstitutional extraterritorial regulation only when a state

imposes penalties “for conduct that was lawful where it

occurred and that had no impact on [the regulating state] or its

residents.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 573

(1996) (emphasis added); see also State Farm Mut. Ins. Co. v.

Campbell, 538 U.S. 408, 421 (2003) (noting that a State cannot

impose penalties “to punish a defendant for unlawful acts

committed outside of the State’s jurisdiction”) (emphasis

added). Again, because the Oklahoma courts require, consistent

with due process, that the state whose law will be applied have

significant contact with the plaintiffs claims’, there is no danger

that they will run afoul of that principle. Indeed, this Court has

indicated that a choice-of-law determination that complies with

Shutts does not, by definition, involve an unconstitutional

extraterritorial application of law. See State Farm, 538 US. at

421-22: Franchise Tax Bd. vy. Hyatt, 538 U.S. 488, 494-95

(2003).

V. No Court Has Held That a Class Notice Must

Identify Which State’s Law Wiil Apply.

Finally, GM raises a novel argument that was not raised

in the Ysbrand petition—that due process requires a class notice

to identify which state’s law will be applied. GM, however, is

unable to cite even one decision that has adopted its argument.

In fact, the only case GM cites in which a court found notice to

be constitutionally lacking involved the failure to provide

details of a proposed partial settlement of aclass action. See In

18

re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1105

(5th Cir. 1977). Nor does it appear that any appellate court in

this country has addressed the issue of whether the state whose

law will be applied must be identified in a certification notice.

The absence of any conflict on this point—indeed. the

absence of any decision on point—is reason enough to deny

review. But even if the issue were otherwise worthy of this

Court's attention, certioran is also unwarranted because GM's

position is untenable on the merits. To be sure, due process

requires class members to be informed of the pending suit and

to be afforded the nght to exclude themselves from the class.

See Shutts, 472 U.S. at 812. To make these requirements

effective, class members must receive notices that give certain

information about the suit and their rights. See, ¢.g.. Fed. R.

Civ. P. 23(c)(2)(B) (detailing information to be contained in

notices sent out for class actions in federal courts). This Court,

however, has stressed that when notice is constitutionally

required, the Due Process Clause does not mandate nigid,

inflexible standards. “It has been said so often by this Court

and others as not to require citation of authority that due process

is flexible and calls for such procedural protections as the

particular situation demands.” Morrissey v. Brewer, 408 U.S.

471, 481 (1972). Due process does not require that cluss

members be provided a treatise on the law and claims at issuc.

As the standard quoted in the petition states, the touchstone of

constitutionally adequate notice is providing information that “a

reasonable person would consider to be material” in deciding

whether to participate in the suit. Pet. 21 (quoting Nissan, 552

F.2d at 1105). “[A]n overly detailed notice would not only be

unduly expensive, but would also confuse class members und

impermissibly encumber their nights to benefit from the action.”

Id. at 1104.

19

GM's argument, if taken seriously, would cast doubt on

this Court's recently approved changes to Rule 23, as illustrated

by the model notices prepared by the Federal Judicial Center at

the request of the Advisory Commitee of the Federal! Rules of

Civil Procedure. The newly-approved rule demands that class

certification notices contain “concise[] and clear[]” statements

“in plain, easily understood language.” Fed. R: Civ. P.

23(c)(2)(B). Not one of the notices prepared by the Federal

Judicial Center as exemplars of this type of notice contains

information about the jurisdiction whose law will be

applied—or, in fact, any detailed information about the legal

particulars of the claim. Sce e.g., Federal Judicial Center,

“[llustrative” Forms of Class Action Notices: Employment

Discrimination Class Action Certification: Full Notice 3-4, at

http://www. fjc.gov/public/pdf.nsfflookup/ClaAct1 1 .pdf/Sfile/

ClaActl1.pdf (last visited August 9, 2005) (noting only that

claim involves whether employer “discriminated against female

account executives based on their gender, by making it harder

for them to advance in their careers” without providing any

specifics on the exact legal provisions that the employer is

accused of violating). In other words, petitioner contends that

the Constitution requires in every instance what these model

notices do not provide in any instance. To state this position is

to refute it.

20

CONCLUSION

The petition for wnt of certiorari should be denied.

HENRY A. MEYER, Il

ABOWITZ, TIMBERLAKE

& DAHNKE, PC

105 N. Hudson, 10th Floor

P.O. Box 1937

Oklahoma City. OK 73101

(405) 236-4645

BRIAN WOLFMAN

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street. NW

Washington, DC 20009

(202) 588-1000

Respectfully submitted,

EDWARD D. ROBERTSON, JR.

(Counsel of Record)

BARTIMUS, FRICKLETON,

ROBERTSON & OBETZ, P.C.

715 Swifts Highway

Jefferson City, MO 65109

(573) 659-4454

MICHAEL BURRAGE

BURRAGE LAW FIRM

115 N. Washington, Suite 100

P.O. Box 1727

Durant, OK 74702

(580) 920-0700

Counsel for Respondents

September 2005