194 F.R.D. 253 | S.D. Miss. | 2000
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of plaintiffs Earl Keyes and the Earl Keyes Irrevocable Trust pursuant to Federal Rule of Civil Procedure 23 for class certification. Defendant The Guardian Life Insurance Company of America (Guardian) has responded in opposition to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that plaintiffs’ motion should be denied.
This ease is one of many filed in state and federal courts across the nation by various plaintiff-insureds against insurers which are
Pursuant to Rule 23(a) and (b)(2) and (3), plaintiffs have moved for certification of a plaintiff class as to the fraud claims alleged in the amended complaint which class would consist of the following:
Those persons who purchased whole life policies from Guardian between January 1, 1986 and December 31, 1994 who, according to Guardian’s records and/or the records of its agents, requested a vanishing premium payment option or who purchased under a vanishing premium concept.
The requisites for class certification are as follows:
To proceed as a class, plaintiffs must first establish the four requirements set forth in Rule 23(a): “(1) the class is so numerous that joinder of all members is impracticable [numerosity], (2) there are questions of law or fact common to the class [commonality], (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class [typicality], and (4) the representative parties will fairly and adequately protect the interests of the class [adequacy].” Fed.R.Civ.P. 23(a). Then, the plaintiffs must show that the action is maintainable as a class action under one of Rule 23(b)’s subsections. See generally Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir.1996) (noting that plaintiffs have the burden of showing that certification is appropriate) .... To maintain a class action under Rule 23(b)(3), plaintiffs must show: (1) that “[c]ommon questions ... predominate over any questions affecting only individual members” (“predominance”); and (2) that “class resolution [is] superior to other available methods for the fair and efficient adjudication of the controversy” (“superiority”). Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 623-24 (5th Cir.1999) (internal quotations omitted) (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 2246, 138 L.Ed.2d 689 (1997)).
Washington v. CSC Credit Servs., Inc., 199 F.3d 263, 265 (5th Cir.2000); see Mullen, 186 F.3d at 623 (“A class may be certified under Rule 23(b)(3) only if it meets the four prerequisites found in Rule 23(a) and the two additional requirements found in Rule 23(b)(3)”). “These requirements [for Rule 23(b)(3) certification] ensure that certification is granted
Plaintiffs submit that this case, seeking redress for consumer fraud perpetrated by defendant, is not only appropriate, but presumptively appropriate for class treatment. They insist that each of the four requisites prescribed by Rule 23(a) is easily met and further urge that the predominance requirement of Rule 23(b)(3) is also satisfied based on their allegations relative to Guardian’s alleged creation and implementation of a deceptive scheme for marketing its “vanishing premium” policies. Their allegations, they contend, place “[the focus of the litigation] ... on Guardian’s upper management’s acts, omissions, and misconduct to perpetrate its ‘vanishing premium’ scheme” rather than on the circumstances of individual class members. In this vein, plaintiffs assert that Guardian provided its agents with illustrations generated by Guardian, and/or more significantly, with computer software which allowed the agents to print their own illustrations, in order to demonstrate how and when a customer’s premiums would “vanish.” Plaintiffs insist that all of Guardian’s illustrations and software incorporated the same underlying actuarial assumptions, which were undisclosed to customers and potential customers and which were unfounded in light of Guardian’s true dividend experience and philosophy. Plaintiffs thus conclude that “[a]ll class members were victims of standardized misrepresentations and omissions when Guardian used its software to create the uniform illustrations. All class members suffered from Guardian’s uniform deception caused by policy illustrations generated by the same computer software, with the same actuarial assumptions.”
There have been some cases in which classes have been certified based on allegations that the defendant insurers engaged in a uniform course of deception in the marketing and sale of “vanishing premium” policies. Typically, though, these have been cases which either have not involved oral representations by agents, such as where the plaintiffs’ allegations concerned misrepresentations in the policy itself, see, Cope v. Metropolitan Life, Ins. Co., 82 Ohio St.3d 426, 433 & 433 n. 3, 696 N.E.2d 1001 (Ohio 1998) (plaintiffs claims were “not based on any oral or affirmative misrepresentation or any other actionable conduct occurring during preapplication sales negotiations ... [but, rather, on allegations that MetLife] intentionally omit[ted] the state-mandated written disclosure warnings...,” and these claims were “to be decided strictly upon the standard written policy contracts, not upon any oral misrepresentations of MetLife or its agents.”); or, more typically, they have involved the sale of a defendant’s product by persons, either the insurer’s own sales persons and/or independent agents, who have been uniformly trained as to the defendant’s required sales presentation and/or who have been required by the defendant to use uniform sales materials in their sales presentations, see In re The Prudential Ins. Co. of America, 962 F.Supp. 450, 513-16 (D.N.J. 1997). In the latter case, the fact that there may have been oral misrepresentations to particular insureds in furtherance of the insurer’s alleged common scheme of deception did not preclude a finding that the common issues relative to the insurer’s conduct predominated over individual issues since the evidence showed that oral misrepresentations made by agents throughout the country were “virtually identical” because the agents were trained uniformly and were required to use uniform sales materials. See Cohn v. Massachusetts Mut. Life Ins. Co., 189 F.R.D. 209, 216 (D.Conn.1999) (distinguishing Prudential and Cope). As is clear from the record, this case is not of that genre.
Guardian did not employ a “sales force” or any salespeople, but rather sold its products through independent general agents throughout the country; and it did not train these
Despite this evidence, plaintiffs maintain that “[w]hat any one of Guardian’s agents may or may not have done in selling Guardian’s vanishing premium life insurance is of no moment on this motion,” since “[t]his case concerns Guardian’s Home Office conduct, and information withheld by Guardian from Keyes and the class.” That obviously, though, is not the case. Despite this conclusory assertion by plaintiffs, and their repeated incantations regarding Guardian’s alleged use of “uniform” illustrations, it is evident this is not one of those cases in which uniformity prevailed. Rather, there is substantial evidence that sales presentations differed from agent to agent, from client to client, and from transaction to transaction. For that reason, a plaintiffs case cannot succeed merely on proof of Guardian’s acts and/or omissions, but rather, their success or failure will depend on a substantially more individualized inquiry as to the mix of information received by each class member, and how the information affected the class member’s decision, i.e., whether there was reliance by that person.
While plaintiffs insist that a class should be certified given the nature of this case, none of the cases cited upon which plaintiffs rely persuades the court that this would be an appropriate course. Of the cases upon which plaintiffs primarily rely, most are materially distinguishable and none is persuasive. In re Prudential and Cope are distinguishable because the former actually did involve uniform illustrations and sales presentations, and the latter concerned only nondisclosures in the written policy document. Another of the decisions upon which plaintiffs principally relied, the Louisiana Supreme Court’s decision in Banks v. New York Life Insurance Co., 722 So.2d 990 (La. 1998), was vacated on rehearing by the court,
In yet another case cited by plaintiffs, In re New England Mutual Life Insurance Company Sales Practices Litigation, 183 F.R.D. 33 (D.Mass.1998), the court did certify a plaintiff class in a vanishing premium case; but the class was certified pursuant to Rule 23(b)(1), and not under 23(b)(2) or (3), the two subsections of Rule 23(b) upon which plaintiffs have predicated their motion.
Just as these many courts have declined class certification, so, too, will this court, for as the court in Cohn, supra, observed,
[t]hough there are issues common to the members of the proposed class, including in particular the actions and state of mind of [defendant] in pursuing the vanishing premium marketing strategy, these common questions are overshadowed by individualized issues such as the nature of the oral representations or disclosures made by the agent or broker at the point of sale, the nature of any questions asked by the consumer, the content of any written illustrations or disclosures given to the consumer, the degree of care exercised by the consumer in reviewing any written illustrations and the policy instrument, the portions of the offer that were attractive to the, consumer, the degree of the customer’s financial sophistication and his or her understanding of the product. These individualized issues, which are essential to the determination of the claims of each class member, predominate over questions common to the class.
Cohn, 189 F.R.D. at 218.
For these reasons, the court concludes that plaintiffs’ motion for class certification should be denied. Accordingly, it is ordered that plaintiffs’ motion is denied.
. Generally speaking, so called "[v]anishing premium policies are paid dividends which in some instances can be sufficient to cause the premium to 'offset' whereby dividend values are used to pay the premium. In such an instance, the cash premium 'vanishes' and is no longer due from the insured.” Phillips v. New England Mut. Life Ins. Co., 36 F.Supp.2d 345, 347 (S.D.Miss.1998).
. Rule 23(b)(2) provides that an action may be maintained as a class if the requisites of 23(a) are met and in addition, "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 corresponding declaratory relief with respect to the class as a whole.” While plaintiffs purport to seek certification under Rule 23(b)(2) as well as Rule 23(b)(3), it is plain that Rule 23(b)(2) cannot be satisfied here. Though plaintiffs couch their demand for relief in equitable terms, perhaps in order that they might make a colorable attempt for class certification under this subsection, it is manifest that the primary focus of their demands is on monetary relief. See Fed.R.Civ.P. 23 (advisory committee notes) (class certification under (b)(2) "does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages”); cf. Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th Cir.1998) ("[M]onetary relief may be obtained in a(b)(2) class action so long as the predominant relief sought is injunctive or declaratory.”).
. In the memorandum accompanying their motion, plaintiffs state the following:
This action was commenced to remedy Guardianes] ... fraudulent “vanishing premium” life insurance sales practices. Guardian, like many of its competitors ... based its computer-generated "vanishing premium” sales illustrations on actuarial assumptions that were intentionally manipulated by the company to portray more favorable "vanish dates." ... Guardian incorporated these inflated dividend assumptions into its illustration software and based its illustrations on dividends that were artificially "propped up” through a series of undisclosed funds and actuarial manipulations.
The actuarial methods and principles used for dividend calculations were uniform for all Guardian participating policies. Each year, acting on the recommendations of Guardian’s actuarial and other management personnel, Guardian's Board of Directors met to discuss, modify, and ultimately approve on a company-wide basis, a dividend scale applicable to in-force policies and new sales illustrations. The dividend rates and other assumptions underlying Guardian’s sales illustrations were centrally determined on a company-wide basis and uniformly applied for all vanishing premium illustrations. As a result, to the extent these assumptions were intentionally manipulated or were not supported by Guardian’s actual current or expected experience, the vanish points represented to all class members were impacted in a common manner.
Guardian designed and supplied its agents with uniform policy illustrations and computer software to sell "vanishing premium” policies to new and existing policyholders. Guardian projected out-of-pocket premiums and accrued policy values over the policies’ duration. Computerized policy illustrations were integral to Guardian’s “vanishing premium” scheme.... Guardian [created] software that could be disseminated to its national sales force. Guardian’s software was designed to produce "personalized” policy illustrations by inserting names, ages, and policy face amounts into "computer fields.” ...
Guardian’s computer software generated sales presentations that were uniform in for*256 mat, design, and content. Consequently, the "vanishing premium" presentation made to all class members was identical and dependent on the same undisclosed actuarial assumptions. [As a result,] [a]ll class members were victims of standardized misrepresentations .and omissions when Guardian used its software to create the uniform illustrations. All class members suffered from Guardian’s uniform deception caused by policy illustrations generated by the same computer software, with the same actuarial assumptions.
. In American Pipe & Construction Co. v. Utah, 414 U.S. 538, 552-53, 94 S.Ct. 756, 765-66, 38 L.Ed.2d 713 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 2397-98, 76 L.Ed.2d 628 (1983), the Supreme Court held that "filing a Fed.R.Civ.P. 23 class action tolled limitations for potential class members pending the certification ruling.” Vaught v. Showa Denko K.K., 107 R3d 1137, 1143-44 (5th Cir.1997). In addition to contending that plaintiffs have completely failed to establish any of the Rule 23(a) or (b) requisites for class certification, defendant herein has argued that pursuant to American Pipe/Crown, Cork & Seal and their progeny, since plaintiffs’ claims against Guardian would be time-barred but for the tolling afforded their claims during the pendency of the class certification motion in Clarke v. Guardian Life Insurance Co. of America, No. 95-1259-REK (D.Mass.1997), then plaintiffs are precluded from seeking class certification and may now only proceed with their individual claims. See Byrd v. Travenol Labs., 675 F.Supp. 342, 348 n. 5 (N.D.Miss.1987) (”[P]utative class members may not piggyback one class action onto another and thereby toll the statute of limitations indefinitely”).
Because the court concludes that plaintiffs have not established the requisites for class certification in any event, the court has found it unnecessary to address defendant’s arguments on this point.
. Citing Prudential, plaintiffs argue that reliance may be presumed because of Guardian's common course of deception, and the uniformity of that deception, so that issues of any particular individual’s reliance are immaterial. But see Cohn, 189 F.R.D..at 216 (noting that "the overwhelming majority of states do not permit a presumption of reliance in common law fraud cases.") (citing In re Ford Motor Co. Vehicle Paint Litigation, 182 F.R.D. 214, 221-22 (E.D.La. 1998)). However, plaintiffs have cited no case in which reliance was presumed when individual plaintiffs did not necessarily receive the same mix of information. Many courts have held that reliance, even if there might be some situations in which it could be appropriately presumed, may not be presumed in circumstances such as these. See, e.g., In re Jackson National Life Ins. Co. Premium Litigation, 183 F.R.D. 217, 222 (W.D.Mich.1998) (“Where, as here, the information contained in the illustrations was shared with customers, if at all, in the context of varying oral presentations, presumption of reliance is inappropriate.”); Cohn, 189 F.R.D. at 216 (distinguishing Prudential as case involving "essential uniform misrepresentations directed at all members of the class,” and concluding that reliance could not be presumed in other cases).
. Rule 23(b)(1) permits class actions where Rule 23(a)’s requirements are met and, in addition, "the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudication with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair their ability to protect their interests.”. Though plaintiffs argue in a surreply brief that Rule 23(b)(2)(A) certification would be proper here, the court does not agree. See Kent v. SunAmerica Life Ins. Co., 190 F.R.D. 271, 280 ("[Gjiven the individual-fact-specific nature of the plaintiffs’ claims, I perceive little risk of 'inconsistent adjudications or incompatible standards of conduct in having those claims adjudicated separately’.”).
. While plaintiffs recited in their complaint that "the prosecution of separate actions would create a risk of inconsistent or varying adjudications with respect to individual members of the class,” they did not move for certification under Rule 23(b)(1). That this is so is confirmed by a perusal of the table of contents accompanying their memorandum, which include at V.C. 1. the heading “Certification is appropriate and warranted under Rule 23(b)(3),” and at V.C.2. the heading, "Certification is appropriate and warranted under Rule 23(b)(2)." There is no heading, or accompanying argument for, "Certification is appropriate and warranted under Rule 23(b)(1).” Accordingly, contrary to plaintiffs’ contention otherwise, defendant was certainly not off the mark in its assertion to the court that certification was not sought under Rule 23(b)(1).
. Judge Keeton specifically refused to certify the class as proposed by plaintiffs — a class substantially akin to that proposed by plaintiffs in the case at bar — since such a class "would make the proceeding one in which issues distinctive to individuals predominate over common issues,” would be "unmanageable,” and would not be superior to separate proceedings on individual claims. Id. at 37. He concluded, though, that by confining the class to those making claims based upon training provided by the defendant, the materials developed at the defendant's headquarters by or at the instance of high-level management, and the practices of the home office (high-level management), no need existed "to probe into what individual agents said to individual policyholders.” Id. at 39. In other words, Judge Keeton undertook to define a class in such a way as to shift the focus away from the individual plaintiffs' actions and to the defendant insurer’s marketing decisions and practices. This court is somewhat skeptical of the utility of a class so defined and of whether individual issues of reliance may actually be avoided by limiting the class definition in this manner; but those issues were not even addressed by Judge Keeton. In any event, a more limited class of the nature certified in In re New England would not work in this case, for although the plaintiffs do charge that defendant based its illustrations that it furnished to agents on false or invalid actuarial assumptions, they have not alleged that defendant concealed the true facts from the agents. On the contrary, they take the position that Guardian and its agents knew the critical, material facts which were not shared with customers/insureds.
. Plaintiffs have also heavily relied on Security Life of Denver Ins. Co. v. Ferguson, No. 05-98-01738-CV, 1999 WL 339017 (Tex.App. May 28, 1999). Ferguson represents one of a handful of "vanishing premium” cases that has been certified as a class for trial, and not merely as a settlement class. There, the •court found that the lower court had not abused its discretion in certifying the class, observing as follows:
Appellees’ complaints center around Security Life’s alleged common course of conduct in designing and marketing the JSWLE policy and not on any specific representations made by a particular independent agent. Questions*259 involving whether the information and materials Security Life provided agents to sell the policies accurately reflected the inherent risk of the product and the true nature of EIC's will be critical inquiries. Additional common issues include whether Security Life's conduct was intentional or negligent and whether Security Life breached the terms of the JSWLE policy. These issues, when answered as to appellees, will be answered as to all class members and may be dispositive of the entire case. See id. [Sun Coast Resources, Inc. v. Cooper, 967 S.W.2d 525] at 533-34.
It appears Security Life's knowledge and conduct in designing and marketing the JSWLE policy, as opposed to the conduct of any individual agent, will be the focus of most of the efforts of the trial court and litigants. See Health and Tennis Corp. of America v. Jackson, 928 S.W.2d 583, 590 (Tex.App. 1996). Individual questions involving reliance, statute of limitations, damages and the specific policy provisions referenced by Security Life are not likely to overshadow these pivotal issues.
Id. at *6. If the true focus of Ferguson was on the insurer's conduct because there was no material variation in the presentation of materials and information to insureds, then the class certification in Ferguson would be consistent with the rationale of Prudential. To the extent that the court in Ferguson may have considered allegations of a common scheme sufficient in and of itself to warrant class certification, irrespective of individual variations, this court would not agree that certification should have been ordered.
. Guardian relies on the fact that Judge Keeton denied certification of a plaintiff class in the vanishing premium case of Clarke v. Guardian Life Insurance Co. of America, No. 95-1259-REK (D.Mass.1997), not only as the basis of its American Pipe/Crown Cork argument, but also simply on the basis that the reasoning behind his ruling was sound and should be followed. To the latter argument, plaintiffs responded, inter alia, that Judge Keeton had decided Clarke before the Supreme Court's decisions in Lexecon, Inc. v. Milberg, Weiss, Bershad, Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998), and Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), and might well have ruled differently in Clarice had they post-dated these two Supreme Court decisions. Kent belies plaintiffs' argument on this point.
. The court observes, further, that the fact of the predominance of individual issues over the common issues also belies a finding that "class resolution [is] superior to other available methods for the fair and efficient adjudication of the controversy,” the second requisite for Rule 23(b) certification. See Castano v. American Tobacco Co., 84 F.3d 734, 745 n. 19 (5th Cir.1996) ("The greater the number of individual issues, the less likely superiority can be established.”); Cohn, 189 F.R.D. at 218 ("In light of the individualized proof that would be necessary to properly adjudicate the claim of each of the thousands of members of the proposed class, a class action trial of all issues would not be feasible.”); M.C. Sullivan, slip op. at 8 (“[B]ased on the large size of the Class and the individual testimony required, the maintenance of a national class action would not be the superior method of adjudication in promoting the convenient administration of justice.”); Force, 192 F.R.D. at 606 ("Because of the need to show reliance on an individualized basis, class-wide adjudication of the Plaintiffs’ non-statutoiy claims would be at best unwieldy, and potentially impossible.”).