Rose Belle THORN; Rosa M. Thorn, Individually and as Personal Representatives of the Estate of Leroy Thorn, Deceased; Robert Pugh; Evelyn D. Pugh, on behalf of themselves and on behalf of all others similarly situated, Plaintiffs-Appellants, v. JEFFERSON-PILOT LIFE INSURANCE COMPANY, as successor of Pilot Life Insurance Company, Defendant-Appellee.
No. 05-1162.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 19, 2005. Decided Feb. 15, 2006. Corrected Opinion Filed March 9, 2006.
445 F.3d 311
American Council of Life Insurers, Amicus Supporting Appellee.
V.
The majority excuses the prosecution‘s failure to undertake any investigation or inquiry whatsoever into its star witness‘s state case, despite having knowledge about it. This is precisely the sort of reverse incentive that motivated us to craft a constructive possession doctrine in the first place. See Perdomo, 929 F.2d at 970 (“To do otherwise would be inviting and placing a premium on conduct unworthy of representatives of the United States Government.“) (quoting Auten, 632 F.2d at 481).
It is certainly true that the other factors the majority discusses may reveal an even deeper fault attributable to the prosecution. For instance, it is likely that the federal and state agencies were engaged in a “joint investigation” to resolve the alleged arson and, additionally, that at least one member of the state investigation, Agent Marraway, was acting on behalf of the prosecution. But for me, these will only serve as a further indictment of the prosecution‘s already inexcusable behavior and are unnecessary, under our current constructive possession requirement, to charge the prosecution with constructive possession where the prosecution failed utterly to make the most basic inquiry into an area that might reveal germane and exculpatory information.
I conclude the District Court was correct in determining that a Brady violation had occurred because the prosecution should have reasonably undertaken an inquiry into the impact that Caito‘s testimony would have had on his state court proceeding. Fundamental fairness demands no less than this. Because the prosecution failed to do this, they should be charged with constructive knowledge of the Brady material, thereby satisfying the first and only contested prong in the Brady analysis. The order of the District Court granting Risha‘s motion for a new trial should be affirmed.
Before WILLIAMS and MICHAEL, Circuit Judges, and James C. DEVER III, United States District Judge for the Eastern District of North Carolina, sitting by designation.
Affirmed and remanded by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge DEVER concurred. Judge MICHAEL wrote a separate dissenting opinion.
OPINION
WILLIAMS, Circuit Judge.
The named plaintiffs (Appellants) in this case filed an individual and class-action complaint against Jefferson-Pilot Life Insurance Company on behalf of themselves and approximately 1.4 million African-American policyholders. The complaint alleged that Jefferson-Pilot‘s corporate predecessors discriminated against the class members in violation of federal law by charging them higher premiums than whites for similar insurance policies. The district court denied certification under
We hold that Appellants bear the burden of proving compliance with Rule 23 and that the district court did not clearly err in finding that Jefferson-Pilot‘s statute of limitations defense did not present common issues that could be resolved on a class-wide basis. We also hold that the district court correctly held certification was improper under
I.
The parties agree on most of the facts relevant to this appeal. From 1911 to 1973, Jefferson-Pilot Insurance Company‘s corporate predecessors (collectively Jefferson-Pilot) issued approximately 1.4 million industrial life insurance policies1 to African-Americans in North Carolina, South Carolina, Georgia, and Virginia. Jefferson-Pilot admits that it charged African-American policyholders higher premiums than it charged white policyholders for policies with similar benefits. Jefferson-Pilot contends, however, that its “dual-rate”2 policies were not the product of racial animus. Instead, it argues that the price difference was nothing more than a wise business decision based on mortality tables showing that African-Americans had shorter life expectancies and were thus higher life-insurance risks than similarly situated whites.3
Jefferson-Pilot stopped issuing industrial life insurance policies altogether in 1973, but continued to collect premiums on the dual-rate policies that were still in effect at that time. In 1988, Jefferson-Pilot adjusted the race-based premiums on all active policies according to blended mortality tables, which were not based on race. Even after this adjustment, however, African-American policyholders still paid more than whites for similar benefits because whites’ premiums had been determined according to mortality tables for whites only. In 2000, about the time the instant action was filed,4 Jefferson-Pilot declared that all still-active industrial insurance policies, whether owned by African-Americans or whites, were “paid up“; i.e., that no further premiums would be charged on the policies. At that time, only approximately 45,000 of the 1.4 million dual-rate policies issued to African-Americans were still in effect.5
In September 2000, Appellants Rose Belle Thorn, Rosa M. Thorn, Robert Pugh, and Evelyn D. Pugh—four African-Americans insured under a Jefferson-Pilot industrial life insurance policy—filed a class-action complaint against Jefferson-Pilot alleging that its dual-rate policies violated
In October 2003, Appellants moved under
Appellants argued that the district court could resolve Jefferson-Pilot‘s statute of limitations defense on a class-wide basis—i.e., without conducting individual hearings—because Jefferson-Pilot had not shown that any class member had actual knowledge of its dual-rate practices and because all of the class members would have been exposed to the same information that could have given them them actual or constructive knowledge of the practices. In support of this argument, Appellants sub-
In May 2004, the district court conducted an extensive hearing, most of which was devoted to whether the class should be certified. In December 2004, the district court denied the motion to certify by a thorough, well-written opinion. The district court noted that “[t]he claims at issue in this action relate to policies issued as early as 1911 and, at the latest, in 1973. The initial (and possibly only) actionable discrimination would, therefore, have occurred no later than the date of issuance of the policy, in other words, from twenty-seven to eighty-nine years before suit was instituted. This very significant period of time raised critical questions as to when the claim accrued.” Focusing on this critical question, the district court found that the record was devoid of evidence that resolution of the issue could occur on a class-wide basis. (“[Jefferson-Pilot] has presented a strong prediction of evidence that there were numerous sources available during the relevant period which could have alerted class members to the fact that the practices now complained of were common in the industry, if not uniform among White-owned companies. . . . In light of the information which [Jefferson-Pilot] has shown was available, the court cannot assume that none of the members of the proposed class gained sufficient information to put them on inquiry notice at some point which would result in their claim being time barred.“). The district court held that this fact meant that Jefferson-Pilot was entitled to present evidence as to individual class members’ actual or constructive knowledge, thereby rendering the class members’ claims uncommon from one another and precluding certification under
II.
On appeal, Appellants argue that the district court misapplied
We first address Appellants’
III.
Appellants argue that the district court abused its discretion in denying the certification motion under
A.
The class-action device, which allows a representative party to prosecute
To be certified, a proposed class must satisfy
The district court found that Appellants’ proposed class did not satisfy
sures that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”
- the interest of members of the class in individually controlling the prosecution or defense of separate actions;
- the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
- the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
- the difficulties likely to be encountered in the management of a class action.
At the class certification phase, the district court must take a “close look” at the facts relеvant to the certification question and, if necessary, make specific findings on the propriety of certification. Gariety, 368 F.3d at 365 (internal quotation marks omitted). Such findings can be necessary even if the issues tend to overlap into the merits of the underlying case. Falcon, 457 U.S. at 160 (“[S]ometimes it may be necessary for the [district] court to probe behind the pleadings before coming to rest on the certification question.“); Gariety, 368 F.3d at 366 (“[W]hile an evaluation of the merits . . . is not part of a Rule 23 analysis, the factors spelled out in
While Congress has not enacted a specific statute of limitations for
this appeal, we assume the district court‘s conclusion is correct.
Whether state or federal law supрlies the length of the limitations period, federal law determines when the clock begins to run against that period, or, phrased technically, when the cause of action “accrues.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir.1995) (en banc). We have held that a cause of action accrues under a borrowed statute of limitations “either when the plaintiff has [actual] knowledge of his claim or when he [has constructive knowledge of his claim]—e.g., by the knowledge of the fact of injury and who caused it—to make reasonable inquiry and that inquiry would reveal the existence of a colorable claim.” Id.; Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir.1996).10
Our circuit‘s accrual rule, which focuses on the contents of the plaintiff‘s mind, is not readily susceptible to class-wide determination. Examination of whether a particular plaintiff possessed sufficient information such that he knew or should have known about his cause of action will generally require individual examination of testimony from each particular plaintiff to determine what he knew and when he knew it. See Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 342 (4th Cir.1998) (noting, in holding that a state statute of limitations defense presented in-
B.
1.
With this background in mind, we return to Appellants’ arguments. Appellants first argue that Dr. McKiven‘s expert report failed to satisfy Jefferson-Pilot‘s burden of proving that its statute of limitations defense presents issues that must be decided on an individual basis. This argument, of course, assumes that Jefferson-Pilot bears such a burden. Our cases prove this assumption false; we have stressed in case after case that it is not the defendant who bears the burden of showing that the proposed class does not comply with
Seeking to avoid this conclusion, Appellants argue that because Jefferson-Pilot bears the burden of proving the merits of its statute of limitations defense, it should also bear the burden of demonstrating that resolution of that defense cannot occur on a class-wide basis. Even assuming that Jefferson-Pilot has the burden of proving its statute of limitations defense on the merits,11 we reject this argument. Our
cases permit no exсeption to the rule that the plaintiff bears the burden of showing compliance with
Appellants next contend that even if they have the burden of proving that Jefferson-Pilot‘s statute of limitations defense presents common questions that can be resolved on a class-wide basis, the evidence in this case satisfies this showing. First, Appellants argue that Dr. Norrell‘s expert report demonstrates that the public was not generally aware of insurance companies’ dual-rate practices. That report concludes that “the public, or the average citizen of the United States, including African-Americans, was not generally aware of [these] practices.” (J.A. at 70.) Whether the “average citizen” (whoever that is) or “the public” (whoever that is) was or was not “generally aware” of insurance companies’ dual-rate practices, is, however, irrеlevant to the question that the trier of fact will have to answer to resolve Jefferson-Pilot‘s statute of limitations defense on the merits: Were any of the individual class members aware, actually or constructively, outside of the limitations period that Jefferson-Pilot was treating him or her differently from white policyholders? Dr. Norrell‘s report, therefore, does not support a finding that the trier of fact could resolve this question on a class-wide basis.12
Third, Appellants argue that because of the homogeneity of the class, which they describe as being comprised of “blue-collar African-Americans” (Appellants’ Br. at 14), any question of whether the members of the class were exposed to sufficient information to cause their claims to accrue can be determined on a class-wide basis. But short of the fact that the class mem-
bers are all Afriсan-American and all purchased industrial life insurance policies from Jefferson-Pilot, the record reveals no information that would allow us to conclude that the class members—1.4 million African-Americans of all ages and both sexes, who are spread out geographically over four states and temporally over 62 years—are so homogeneous that media reports and other information about dual-rate practices would affect them all in precisely the same manner. We refuse to make such broad generalizations about the class members based on nothing more than the color of their skin and inferences about their socio-economic status arising from the fact that they purchased an industrial life insurance policy from Jefferson-Pilot. To do so would be to engage in the very brand of stereotyping about which Appellants complain.
Fourth, Appellants argue that because Jefferson-Pilot instructed its agents to conceal the dual-rate practices, we should create a class-wide presumption of unawareness of those practices that Jefferson-Pilot failed to rebut by failing to offer any evidence that any class member knew or should have known about the practices. According to Appellants, this unrebutted class-wide presumption allows the district court to resolve the statute of limitations issue (in their favor) on a class-wide basis.
statutory period” (emphasis added)). We see no principled reason to depart from this holding when the plaintiff argues that concealment prevents accrual.14
Our good colleague in dissent does not make any argument (short of simple assertion) that the evidence in this case demonstrates that Jefferson Pilot‘s statute of limitations defense can be resolved on a class-wide basis, post at 336 n. 3, yet he repeatedly argues that the district court abused its discretion in denying the certification motion because Jefferson-Pilot failed to show that its statute of limitations defense requires individualized adjudication. We believe, however, that burdens of proof and standards of review matter. As we have demonstrated, the relevant inquiry is not whether Jefferson-Pilot has shown that the statute of limitations defense requires individualized adjudication, but whether the district court clearly erred in finding that Appellants failed to show that the statute of limitations defense can be resolved on a class-wide basis. For the reasons set forth above, we believe that it did not.
2.
We recognize that parts of our analysis of these issues are in some tension with the Fifth Circuit‘s decision in In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir.2004), cert. denied sub nom. Am. Nat‘l Ins. Co. v. Bratcher, 543 U.S. 870, 125 S.Ct. 277, 160 L.Ed.2d 117 (2004), a decision with facts similar to those before us. In Monumental, the plaintiffs brought
While this holding seems apposite to the issue presented here, closer inspection reveals that the court in Monumental neither held what Appellants ask us to hold nor even directly addressed the question before us today. In Monumental, the insurance companies relied on a theory of
constructive notice in support of their statute of limitations defense; i.e., that because of the widespread media coverage of insurance companies’ dual-rate practices, the court could find that reasonable persons, including class members, should have been aware of sufficient information to provide actual or constructive knowledge of the practices. Id. at 421 (“[D]efendants rely on a theory of constructive notice, arguing that widespread media reporting of the issue over the last several decades should have excite [d] the inquiry of a reasonable person. Where events receive widespread publicity, plaintiffs may be charged with knowledge of their occurrence.” (alterations in original and citations omitted)). The court held that because the record contained no evidence that media coverage of the issue varied from state to state, the question of whether a reasonable person could be held to have been exposed to sufficient information to provide actual or constructive knowledge presented a question that could be resolved on a class-wide basis. Id.16
Here, by contrast, Jefferson-Pilot does not argue that the district court should hold that widespread media treatment of the issue provided a reasonable person with sufficient information to give him either actual or constructive knowledge. Instead, it argues that individual class members were actually exposed to sufficient
Our interpretation of Monumental is buttressed by the proceedings on remand in that case. Instead of relying on a theory of constructive notice in support of their statute of limitations defense, as they had before the Fifth Circuit, the insurance companies on remand relied on a theory of actual notice, as Jefferson-Pilot does here. In re: Industrial Life Ins. Litigation, MDL No. 1371, slip. op. at 13 n. 18, 2006 WL 372004, *, n. 18 (E.D.La. Jan. 25, 2006) (order denying class certification) (“The majority in Monumental seemed to assume that the defendants relied solely on an issue of constructive notice, whereas it is clear on remand that the defendants intend to pursue [a] theor[y] of actual notice. . . .“). On this new legal theory, the district court denied the certification motion, finding that “the plaintiffs . . . failed to show that the predominance requirement of
We therefore conclude that the district court did not clearly err in finding that Jefferson-Pilot‘s statute of limitations defense presented issues that cannot be determined on a class-wide basis. As our discussion reveals, this conclusion is not born of a view that individual questions necessarily arise any time a defendant raises a statute of limitations defense. Such a holding would be inconsistent with Gariety‘s requirement that the district court take a “close look” at the facts relevant to the certification question. 368 F.3d at 365 (internal quotation marks omitted). Indeed, we can easily foresee a situation where the defendant‘s statute of limitations defense is so dependant upon facts applicable to the entire class, qua class, that individual hearings would not be neсessary.19 Appellants, however, have not shown that such facts are present here. To hold otherwise would force Jefferson-Pilot “to defend against a fictional composite without the benefit of deposing or cross-examining the disparate individuals
behind the composite.” Broussard, 155 F.3d at 345. Moreover, assuming the trier of fact found that the hypostatized “blue-collar African-American” knew or should have known of his cause of action, a holding allowing the case to proceed as a class would risk cutting off the rights of those Jefferson-Pilot policyholders who lacked such knowledge to receive an individual adjudication of the merits of their claims.
4.
As noted, the district court did not base its Rule 23(b)(3) denial of Appellants’ certification motion solely on its finding that the individual issues presented by Jefferson-Pilot‘s statute of limitations defense predominated over the common issues present in the case, such as whether Jefferson-Pilot‘s acts violated
Appellants neither challenge these additional findings nor do they argue that,
IV.
Appellants also argue that certification was proper under
A putative class satisfies
The twin requirements of
The requirement that declaratory or injunctive relief predominate, of course, echoes the predominance requirement of
Appellants argue that certification was proper under
This conclusion brings us to the class‘s request for restitution. Appellants argue that
The text of
Appellants seek to counter this conclusion by arguing that such a holding is incompatible with Title VII case law where courts, including our own, have found certification proper under
Even assuming that
pellants, who, it bears repeating, shoulder the burden of proving certification, have not submitted any evidence—nor have they even argued—that Jefferson-Pilot‘s race-based premium over-charges are traceable. On the record before us, therefore, we cannot conclude that the class‘s restitution request is an equitable remedy.
V.
For the foregoing reasons, we affirm the district court‘s denial of Appellants’ motion for class certification and remand for further proceedings on Appellants’ individual claims.
AFFIRMED AND REMANDED.
MICHAEL, Circuit Judge, dissenting:
The majority‘s decision to affirm the denial of class certification means that Jefferson-Pilot Life Insurance Company will never be held to account if it discriminated against 1.4 million African-Americans by charging them higher premiums for industrial life insurance than it charged whites. This case makes sense only as a class action because the liability issues are complex and the maximum loss suffered by any class member “is at most, hundreds of dollars.” J.A. 280. My point is hardly “puzzling.” See ante at 328 n. 20. As the Supreme Court has said, “The policy at the very core of the class action mechanism is to overcome the problem that small
The majority errs by accepting at face value Jefferson-Pilot‘s argument that class certification is precluded because the Company‘s statute of limitations defense raises questions that must be decided individually for every class member. The facts tendered at the class certification stage reveal that the Company has at most a defense that the policyholders had constructive knowledge of their injury within the limitations period. The constructive knowledge theory is based solely on the assertion of the Company‘s expert that there was widespread publicity, both nationally and in the Southeast, about the dual-rate practices of white-owned insurance companies. The record, however, does not contain any facts to suggest that there are individual differences in what class members “could have known” about the dual-rate practices. Thus, the limitations defense can be determined on a classwide basis, and the Rule 23(b)(3) requirement that common issues predominate over any individual ones is met. For this reason, I respectfully dissent.
I.
The facts alleged, if proven true, portray a grievous wrong against well over a million African-Americans. From the early 1900s until the mid-1970s, Jefferson-Pilot (or its predecessors) charged African-Americans higher premiums than similarly situated whites for industrial life insurance. These policies have a low face value (often less than $500), with premiums collected by company agents at the home of the policyholder on a weekly or monthly basis. The Company sold these policies to 1.4 million African-Americans in Georgia, North Carolina, South Carolina, and Virginia. (Ninety percent of the policies were sold in North Carolina.) In 2000 Jefferson-Pilot declared all active industrial life policies tо be paid up, and no further premiums were collected. About 45,000 of the policies were still in effect as of 2004. The plaintiffs allege the Company targeted occupations and geographic areas known to have a high concentration of African-Americans. More specifically, the plaintiffs allege that the Company “targeted low income, impoverished, and disadvantaged African-Americans who typically were unsophisticated with respect to life insurance.” J.A. 29 ¶ 17. Finally, it is alleged that African-Americans did not know and could not have reasonably known they were charged higher premiums than whites because the Company engaged in a pervasive scheme to conceal this practice. These discriminatory practices, the plaintiffs allege, violate the Civil Rights Act,
The named plaintiffs seek to represent a class of 1.4 million African-Americans who bought industrial life insurance from Jefferson-Pilot. When the plaintiffs moved for class certification, a key issue was whether the Company‘s statute of limitations defense required individualized determinations. At the certification stage, the parties offered the following evidence concerning the nature and merits of the Company‘s limitations defense. Four potential class members were deposed, and none had actual knowledge of his or her injury outside the limitations period. In
A.
The district court found that Jefferson-Pilot‘s statute of limitations defense requires individualized proof as to each class member. This finding is erroneous as a matter of law, and it misled the court to conclude that Rule 23(b)(3)‘s predominance requirement cannot be met here. The record shows that the limitations defense presents not individualized questions, but сommon ones that can be answered on a classwide basis. If the district court had undertaken the rigorous analysis of the record required by Gariety v. Grant Thornton, LLP, 368 F.3d 356 (4th Cir.2004), it could not have concluded that the statute of limitations defense presents individualized questions.
In Gariety we noted that ”
Jefferson-Pilot raises both actual and constructive knowledge as the basis for its limitations defense, and it argues that neither theory is capable of classwide adjudication. I disagree. With rеspect to the Company‘s actual knowledge theory, there is no evidence of actual knowledge to support the district court‘s finding that individualized inquiry is necessary to adjudicate the limitations defense. The Company deposed four class representatives, and their testimony reveals that not
Jefferson-Pilot‘s more plausible argument is that the class members had constructive knowledge of the challenged conduct outside the limitations period. A federal claim accrues under the constructive knowledge theory when the plaintiff “possessed sufficient facts to . . . have reason to know of the alleged injury.” Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 181 (4th Cir.1996). The claim accrues, in other words, when the plaintiff “should have known (or been put on inquiry notice of) [his] injury.” Thompson v. Metro. Life Ins. Co., 149 F.Supp.2d 38, 52 n. 12 (S.D.N.Y.2001). The district court found that the Company‘s expert “presented a strong prediction that there were numerous sources of evidence available during the relevant period which could have alerted class members to the fact that the practices now complained of were common in the industry.” J.A. 296 (emphasis added). To begin with, this finding does not incorporate the correct legal standard, which is whether plaintiffs “ha [d] reason to know,” Brooks, 85 F.3d at 181, or “should have known,” Thompson, 149 F.Supp.2d at 52 n. 12, of their injury. More importantly, the finding, which is based entirely on the report of the Company‘s expert, does not establish that adjudication of the constructive notice limitations defense requires individualized proof.3
Dr. McKiven, Jefferson-Pilot‘s expert, asserts there was “widespread publicity,” both nationally and regionally, about the race-based “pricing differential.” J.A. 82, 101. This assertion suggests that the
Dr. McKiven also refers to other information on the issue. Black-owned insurance companies encouraged their agents to speak out in churches and in their sales calls about the race-based pricing of white-owned companies. The Congress of Industrial Organizations issued results of a survey indicating that African-Americans did not receive equal treatment from white-owned insurance companies. The NAACP and the Urban League published a few articles in their national magazines addressing the dual-rate practices. Finally, at three congressional hearings testimony was presented on the issue. All of these efforts had a broad regional or national focus.
Dr. McKiven thus concludes that “widespread publicity about [higher life insurancе rates for African-Americans] existed in the Southeast” and nationally. J.A. 82. Tellingly, he offers no facts in his twenty-page report to suggest that there are individualized differences in what the class members “could have” known about the dual-rate practices. In other words, McKiven does not say that there was any variation among individual class members as to what they could have known. This lack of variation makes classwide treatment appropriate.
This case, then, is like the case presented on appeal in In re Monumental Life Insurance Co., 365 F.3d 408 (5th Cir.), cert. denied, 543 U.S. 870, 125 S.Ct. 277, 160 L.Ed.2d 117 (2004), where the court held that the insurance companies’ statute of limitations defense—whether African-American plaintiffs had constructive knowledge that they were discriminated against in the purchase of industrial life insurance—could be decided on a classwide basis. Like Jefferson-Pilot, the insurance companies in the Monumental appeal relied on “widespread media reporting” that conveyed the same information about the issue in both national and local markets. Id. at 421. The majority‘s efforts to distinguish the Fifth Circuit‘s opinion in Monumental fail. The majority says:
Jefferson Pilot does not argue [as did the defendants in Monumental] that the district court should hold that widespread media treatment of the issue provided a reasonable person with sufficient information to give him either actual or constructive knowledge. Instead, it argues that individual class members were actually exposed to sufficient information to give them either actual or constructive knowledge of Jefferson Pilot‘s dual-rate practices outside the limitations period.
Ante at 326. Thus, the majority concludes that “the district court here must conduct individual inquiry into the information each class member actually possessed to determine whether each class member had actual or constructive knowledge of Jefferson Pilot‘s dual-rate practices.” Ante at 326. The problem with this argument is that Jefferson-Pilot has nothing but widespread media treatment and publicity to rely on for its defense that, in the majori-
The Fifth Circuit remanded the Monumental case to the Eastern District of Louisiana for further proceedings on class certification. The plaintiffs then renewed their motion to certify a class against two insurance companies that administrated industrial life insurance policies issued by more than 280 companies. In response the insurance companies offered evidence showing “regional differences in media treatment” of discriminatory pricing and an expert who, according to the Louisiana district court, “proved that whether and when any individual would have learned about industrial life insurance pricing practices depends on where they lived, the time period, what newspapers and articles they read, and what oral conversations they had in local churches or through other social networks.” In re Indus. Life Ins. Litig., MDL No. 1371, slip op. at 14, 2006 WL 372004, *— (E.D.La. Jan. 25, 2006) (order denying class certification) (internal quotation marks omitted and emphasis added). As a result, the district court in the Monumental remand concluded that individualized proof on the limitations issue was required and that
What the defense expert “proved” on remand in Monumental underscores what is lacking in this case. Here, the evidence concerning the information about the dual-rate practices focuses on its widespread dissemination rather than on whether the information available varied from place to place or from time period to time period. Accordingly, the district court‘s finding here—that “numerous sources available . . . could have alerted class members” to the discriminatory pricing, J.A. 296—does not establish that individualized inquiry is necessary. I would not, however, foreclose the possibility of the district court‘s later reconsideration of the issue of whether the limitations defense presents individual questions. If discovery on the merits was to show that information about the dual-rate practices varied materially from place to place or from time period to time period in the four relevant states, then the issue of any class certification could be revisited by the district court.
In sum, as the record now stands, the statute of limitations defense presents issues that are common to the class. In addition, the plaintiffs’ direct case involves a collective or common claim that the Company engaged in a single, sustained course of intentional discrimination against African-American policyholders by charging them higher rates for industrial life insurance than similarly situated whites.
B.
***
The prerequisites of
UNITED STATES of America, Plaintiff-Appellee, v. Artez Lamont JOHNSON, Defendant-Appellant.
No. 05-4378.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 1, 2006. Decided April 7, 2006.