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The Fourth Circuit issued a split decision today in Gray v. Hearst Communications, Inc.¬†affirming the certification of a class of business advertisers. The class members are businesses that purchased advertising in The Talking Telephone Book directories published in various South Carolina markets. The class alleged that they bought this advertising on the basis of the publishers’ representation of its distribution coverage, but that the publisher “knowingly misrepresented its actual distribution, never made a full distribution as promised, and intentionally sought to conceal this deception.” The district court certified a class to pursue three theories: breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair and deceptive trade practices. Judge Shedd authored the Fourth Circuit’s majority opinion affirming certification, an unpublished opinion that was joined in by Judge Moon (senior judge from WDVA sitting by designation). Judge Wilkinson dissented.

The case was argued in December 2010. Eight months between argument and decision is a long time even for a split decision, particularly when the resulting opinions are not lengthy. The wait may have been due to a desire to wait until the Supreme Court decided Wal-Mart v. Dukes, a case discussed by both majority and dissent.

The decision may be of interest to students of appellate practice, inasmuch as the majority opinion attributes dispositive significance to a concession made by counsel for appellant at the oral argument.

For students of class action law, however, the majority opinion should be of less interest. The unpublished opinion contains only a cursory discussion of the predominance requirement of 23(b)(3). Moreover, the analysis examines only certification of the breach of contract claim, disposing of class certification questions surrounding the other two claims in a brief footnote. Also disposed of in another brief footnote at the end of the opinion are appellant’s arguments “that the district court abused its discretion by (a) certifying Gray’s class on a conditional basis, (b) failing to conduct a rigorous analysis of the record, and (c) finding the class satisfied the superiority, typicality, and adequacy requirements of Rule 23(b)(3).”

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