# Opposition Brief — General Motors Corp. v. Ford

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1648%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 935

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1648%3A2. Public record. Not legal advice.