Professional Documents
Culture Documents
No. 10-1302
WILLIAM
B.
GRAY,
III,
d/b/a
Greenwood
Clinic
of
Chiropractic, individually and for the benefit and on
behalf of all others similarly situated; B AND K SERVICES
INCORPORATED,
Plaintiffs Appellees,
and
STEVE WALL AND ASSOCIATES LLC, f/k/a SC Insurance Services
LLC, d/b/a Morgan and Associates Incorporated; UNLIMITED
SERVICES OF GREENWOOD INCORPORATED, individually and for
the benefit and on behalf of all others similarly situated,
Plaintiffs,
v.
HEARST
COMMUNICATIONS,
INCORPORATED;
HOLDINGS CAROLINA INCORPORATED,
WHITE
DIRECTORY
Defendants Appellants,
and
TALKING PHONE BOOK; SAIA HOLDINGS LLC; SAIA PUBLISHING
COMPANY;
MICHAEL
BROWN;
WHITE
DIRECTORY
HOLDINGS
PENNSYLVANIA INCORPORATED; WHITE DIRECTORY OF CAROLINA,
INCORPORATED,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Anderson.
G. Ross Anderson, Jr., Senior
District Judge. (8:08-cv-01833-GRA)
Argued:
December 7, 2010
Decided:
Communications,
Inc.
and
White
Directory
against
them
for
breach
of
contract,
breach
of
the
implied covenant of good faith and fair dealing, and unfair and
deceptive trade practices. For the following reasons, we affirm
the certification order.
These claims, brought by William B. Gray, III, d/b/a
Greenwood Clinic of Chiropractic, and B & K Services, Inc., on
behalf of themselves and other similarly situated advertisers
(collectively Gray), stem from Grays purchase of advertising
in
The
Talking
Phone
Book
telephone
directories
which
are
South
Carolina.
Gray
alleges
White
Directory
the
Directorys
Directory
use
of
superior
knowingly
concerted
sales
distribution
misrepresented
efforts
coverage,
its
touting
but
actual
that
White
White
distribution,
good
faith
practices.
and
fair
After
dealing,
and
hearing
unfair
on
the
and
deceptive
motion
for
trade
class
petition
for
review.
We
review
the
class
certification
White
Directory
raises
several
issues
on
and
predominance
Procedure
23.
In
requirements
granting
of
Federal
certification,
the
Rule
of
district
Rule
of
Civil
Procedure
23
We agree.
establishes
the
action
must
comply
established
in
Rule
23(a):
commonality
of
factual
and
with
the
four
(1)
numerosity
legal
issues;
of
(3)
prerequisites
parties;
(2)
typicality
of
F.3d 417, 423 (4th Cir. 2003) (quoting Fed. R. Civ. P. 23(a)).
Second, the class action must also fall within one of the three
categories
established
in
Rule
23(b).
Id.
Here,
Gray
seeks
over
any
questions
affecting
only
individual
for
controversy.
fairly
Fed.
R.
and
Civ.
efficiently
P.
23(b)(3).
adjudicating
A
plaintiff
the
seeking
is
generally
established
when
must
demonstrate
that
the
class
members
have
common
resolution
contention
which
means
that
that
is
capable
determination
of
of
classwide
its
truth
or
requirement
commonality
is
far
more
requirement,
demanding
and
the
than
Rule
"predominance
must
individual
achieve
predominate
members;
economies
promote . . .
of
uniformity
over
any
[such
time,
of
questions
that]
effort,
decision
as
affecting
class
and
to
action
only
would
expense,
persons
and
similarly
Directory
initially
argued
the
contracts
at
no
contractual
during
do
oral
contain
obligation
argument,
a
White
distribution
regarding
distribution.
Directory
conceded
obligation,
and
the
further
advertisers
in
any
given
coverage
area.
Thus,
there
is
no
conceded
the
existence
of
uniform
that
there
can
be
no
proof
of
distribution
fact,
during
distribution
course
of
oral
argument
requirement
distributing
White
under
the
books.
Directory
contracts
Evidence
of
described
as
such
its
its
normal
course
of
226, 228-29 (N.C. Ct. App. 1997) (citing N.C. Gen. Stat. 25-2202).
Finally, White Directory misses the mark by focusing
on the individualized nature of the different representations
that may (or may not) have been made in the negotiations between
each advertiser and White Directory. As we already discussed:
White Directory concedes (and common sense dictates) that the
normal
course
advertisers
of
in
distribution
given
is
the
market.
same
for
Accordingly,
all
the
directory
level
of
is
this
uniform
distribution
practice
which
millions
of
allegedly
discriminatory
employment
general
policy
applied
to
all
hiring
decisions.
Here,
White
White
Directory
representations
distribution
Directory
argues
regarding
obligation
concedes
its
sales
distribution
in
the
both.
to
representatives
that
contract,
Moreover,
differed
evidence
made
from
of
the
the
those
dealings
concerning
distribution
would
be
barred
by
the
advertisers,
they
could
regarding
distribution
obligations
not
make
which
binding
differed
promises
from
that
reflected in the contract. And, even if the parties may have had
different
expectations
regarding
other
variables
(e.g.
size,
common
question
regarding
White
Directorys
distribution
failure
distribution
Directory
by
White
practice),
breached
its
Directory
and
to
follow
determination
standard
of
distribution
its
standard
whether
White
obligation
will
district
extrinsic
court
evidence
distribution
is.
correctly
to
found
establish
Because
the
what
same
that
that
Gray
may
normal
distribution
rely
on
course
of
obligation
area,
evidence
of
White
Directorys
distribution
obligation
we
affirm
the
district
courts
10
case
concerns
whether
advertisers
pursuing
but
an
their position.
irresolvable
paradox
lies
at
the
heart
of
contracts.
concede
that
extrinsic
evidence,
which
inevitably
will
be
the
integrated
contracts
in
fact
See ante, at 9.
lack
any
uniform
I.
There
is
no
uniform
distribution
policy
in
would
be
the
logical
place
to
look
for
such
the
The
an
11
term,
but
cannot
find
one
for
the
simple
reason
that
the
It
majoritys
during
oral
conclusion
argument,
depends
White
on
its
Directory
assertion
conceded
the
Ante, at 6.
fail
to
cite
any
language
from
the
contracts
to
II.
To
establish
demonstrate
its
individualized
breach
extrinsic
distribution
therefore
evidence
of
requirement
requires
exactly
the
and
resort
kind
to
deemed
law
or
fact,
but
not
requiring
12
predominance
of
those
there
Hearst,
is
no
distribution
term
in
the
Likewise,
integrated
breach
of
contract.
Without
contract
term
extrinsic
evidence
to
establish
an
implied
distribution term.
A.
To
compensate
for
the
contracts
silence
on
plaintiffs
extrinsic
evidence
practices.
invite
the
regarding
See ante, at 9.
district
White
court
to
Directorys
resort
to
distribution
miss[]
distribution
the
still
mark.
begs
Ante,
the
at
critical
8.
Any
question
practice
of
what
of
that
of
what
term
in
it
the
would
be.
contracts,
13
Absent
uniformity
an
explicit
in
actual
distinguish
uniform
Wal-Mart
distribution
policy
is
not
rather
its
White
sales
on
the
basis
of
White
at
8.
practice.
Ante,
Directorys
distribution
policy,
which
sheds
light
Directorys
The
relevant
practices,
on
the
reliance
but
And in
Wal-Marts policy
(in
conjunction
nondiscrimination)
commonality.
one
of
fatal
to
its
the
written
plaintiffs
policy
of
assertion
of
broad
discretion
was
with
discretion.
to
craft
their
Specifically,
sales
pitch
to
salesmen
the
had
needs
broad
of
the
specific client.
As
result,
there
was
substantial
variation
in
saw the same sales aids or the same salespersons nor were they
subject
to
distribution.
the
same
representations
with
respect
to
with
respect
to
individualized
distribution
will
anecdotal,
just
and
insufficient in Wal-Mart.
of
phone
books
representations
was
to
like
the
necessarily
evidence
be
deemed
uniform,
class
therefore
the
members
lack
of
indicates
uniformity
that
there
in
is
the
no
B.
The extrinsic evidence and the individualized nature
of the claims deriving from it forecast all sorts of difficult
problems
down
the
road.
Plaintiffs
would
need
to
introduce
specific
numerical
distribution
term
--
specifically
evidence of what sales aids were used or what sales pitches were
given
at
individual
meetings. *
Individualized
evidentiary
15
In this case,
III.
In
the
end,
we
are
still
left
with
the
question,
Again, it
those
breach
of
representations
contract
that
claim.
alone
could
Accordingly,
lead
there
to
is
a
no
viable
way
to
16
17