Hooley v. Red Carpet Corp. of America

• Decision Date: 21 January 1977
• Docket Number: Nos. 75-2269 and 75-3373,s. 75-2269 and 75-3373
• Citation: 549 F.2d 643
• Parties: 1977-1 Trade Cases 61,275 John E. and Darlene K. HOOLEY, husband and wife, and all others similarly situated, Plaintiffs-Appellants, v. RED CARPET CORPORATION OF AMERICA et al., Defendants-Appellees. Stephen H. MARKS, Plaintiff-Appellant, v. SAN FRANCISCO REAL ESTATE BOARD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 643

549 F.2d 643

1977-1 Trade Cases 61,275

John E. and Darlene K. HOOLEY, husband and wife, and all

others similarly situated, Plaintiffs-Appellants, v. RED CARPET CORPORATION OF AMERICA et al., Defendants-Appellees.

Stephen H. MARKS, Plaintiff-Appellant, v. SAN FRANCISCO REAL ESTATE BOARD et al., Defendants-Appellees.

Nos. 75-2269 and 75-3373.

United States Court of Appeals Ninth Circuit.

Jan. 21, 1977.

Rehearing and Rehearing En Banc Denied March 23, 1977.

Andrew D. Hurwitz, Phoenix, Ariz. (argued), Lovitt, Hannan & Hennigan, San Francisco, Cal., for plaintiffs-appellants in 75-2269.

Josef D. Cooper (argued), Cooper & Scarpulla, San Francisco, Cal., for plaintiff-appellant in 75-3373.

James H. Clarke (argued), Portland, Or., for defendants-appellees in 75-2269.

Moses Lasky (argued), Brobeck, Phleger & Harrison, M. Laurence Popofsky (argued), Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for defendants-appellees in 75-3373.

Before SNEED and KENNEDY, Circuit Judges, and RICHEY, ^* District Judge.

SNEED, Circuit Judge:

Plaintiffs appeal under 28 U.S.C. § 1291 from orders of the United States District Courts for Oregon and the Northern District of California refusing to certify their actions as class actions. We hold that, under this court's recent decision in Share v. Air Properties G. Inc., 538 F.2d 279 (9th Cir. 1976), appellate jurisdiction has not been demonstrated. We therefore dismiss the appeals with the understanding that plaintiffs in both cases will be provided the opportunity to establish in the district courts below that the "death knell" has sounded for their actions.

I.

Both of the two actions consolidated for this appeal were brought by sellers of real estate against numerous realty companies and realtor boards, charging that the defendants had conspired to fix real estate commissions in violation of the Sherman Act. Hooley involves a potential class of from 10,000 to 30,000 individuals who sold homes in the Tri-County area surrounding Portland, Oregon from 1970 to 1973; plaintiffs seek both injunctive relief and treble damages. After allowing for discovery on the class action issue, the District Court for Oregon denied the plaintiffs' motion for class certification in an order of April 1, 1975. Marks is a treble damage action involving a potential class of up to 13,000 persons who purchased residential real property in Marin County, California during the period of limitations. After full discovery on the class action issue and partial discovery on the merits of the antitrust action, the District Court for the Northern District of California, on February 24, 1975, decertified the class that it had conditionally certified earlier.

We noted in Share that if, after denial of certification, "any member of the purported class proceeds in an individual action, the class certification can be challenged on appeal by other members of the class, named or unnamed." 538 F.2d at 282-83 (emphasis in original). Thus, if "any member of the purported class possesses a cause of action which is viable if brought individually," the death knell of the action has not sounded and "an order of the trial court denying class certification does not constitute an appealable order." Id. at 283.

II.

Appellants urge us to limit Share to its facts. In Share, they point out, a named plaintiff had a claim of at least $17,000 which would justify the cost of separate litigation while here none of the named plaintiffs have actions for more than approximately $1,000 (before trebling). Appellants argue that the language in Share, conditioning the death knell doctrine on the absence of any member of the purported class whose claim would justify individual action, should be treated as dictum, unnecessary to the disposition of that case and not applicable to facts of this case. We decline to so limit Share.

Our adherence to Share is proper because, as emphasized in Share, to recognize the death knell appeal at all is to "compromise our usual notions of appropriateness for review." 538 F.2d at 282. The death knell doctrine is not designed to facilitate immediate review of refusals to certify an action as a class action. It is to make certain that the refusal to certify does not deprive the members of the purported class of an opportunity for review in due course of the refusal on appeal. All opportunity for such review is destroyed if the refusal will have the practical effect of terminating all effort by anyone to assert the particular cause of action involved and to preserve for review on appeal the allegedly erroneous refusal to certify. To determine whether such destruction has occurred requires an examination not limited to named plaintiffs.

Our adherence to Share is strengthened when we consider the ease with which the death knell could be made to toll by designating as named plaintiffs only those whose individual claims would not warrant the cost of separate litigation. By careful selection of named plaintiffs the policy against interlocutory appeals could be frustrated easily. This policy, also reflected in Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976), should not be subject to such manipulation.

We acknowledge freely that our language in Share is not intended to make the death knell doctrine illusory. Thus we do not require proof to a certainty that not a single member of the purported class has a claim which would make feasible the pursuit of relief by separate litigation. What we do require is that the plaintiff seeking class certification demonstrate, and the district court find, that it is highly unlikely that any member of the purported class has a claim...