United States District Court, Southern District of Mississippi, Northern Division
MARY BRIDGES, BOBBY GORDON, AND JOHNNIE GRIFFIN, ALL INDIVIDUALLY AND ON BEHALF OF 345 OTHER NAMED PLAINTIFFS PLAINTIFFS
RICHARD A. FREESE; TIM K. GOSS; SHEILA M. BOSSIER; DENNIS C. SWEET, III; FREESE AND GOSS PLLC; SWEET AND FREESE PLLC; BOSSIER AND ASSOCIATES PLLC; AND DENNIS C. SWEET, D/B/A SWEET AND ASSOCIATES, PLLC DEFENDANTS
DON A. MITCHELL THIRD-PARTY DEFENDANT
MEMORANDUM OPINION AND ORDER
TOM S. LEE, UNITED STATES DISTRICT JUDGE
This cause is before the court on the motion of plaintiffs Mary Bridges and Bobby Gordon for class certification pursuant to Federal Rule of Civil Procedure 23. Defendants Richard A. Freese, Tim K. Goss, Sheila M. Bossier, Dennis C. Sweet, III, Freese and Goss PLLC, Sweet and Freese PLLC, Bossier and Associates PLLC and Dennis C. Sweet d/b/a Sweet and Associates PLLC (hereafter defendants) have responded in opposition to the motion. The court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes the motion should be denied.
Plaintiffs Mary Bridges, Bobby Gordon and Johnnie Griffin, along with 345 others, were previously represented by defendants Freese, Goss, Sweet and Bossier (and their respective law firms) and by third-party defendant Don Mitchell in three separate lawsuits brought against, inter alia, BorgWarner Corporation, in which the plaintiffs sought to recover damages for injuries they claimed to have suffered as the result of the alleged release and improper disposal and elimination of those certain toxic chemicals (polychlorinated biphenyls, or PCBs) at a Crystal Springs manufacturing facility. Plaintiffs’ counsel ultimately reached a global settlement of nearly $28, 000, 000 with BorgWarner on behalf of the 348 plaintiffs (the “Filed Claimants”), and on behalf of an additional 2, 471 clients who were not plaintiffs in the PCB litigation but who also claimed they were injured from exposure to PCBs (the “Unfiled Claimants”). The terms of the settlement were finalized in mid-2010 and in early 2011, defendants began the process of disbursing settlement funds to the PCB claimants, filed and unfiled.
On July 23, 2013, plaintiffs Bridges, Gordon and Griffin filed the present lawsuit for themselves and on behalf of a putative class comprised of the other 345 former clients represented by defendants, asserting myriad claims relating to defendants’ representation of plaintiffs in the PCB litigation, with particular reference to their handling of litigation expenses and disbursement of settlement proceeds. The complaint purports to set forth claims for breach of fiduciary duty, tortious breach of contract, fraudulent inducement, conversion, tortious interference with contract, unjust enrichment and bad faith based on allegations that defendants failed to properly allocate litigation expenses among the Filed and Unfiled Claimants; charged plaintiffs expenses that were exorbitant and unreasonable; converted funds from the PCB settlement for their own personal and unjust benefit; had an undisclosed conflict of interest related to their ongoing representation of the State of Mississippi for recovery of Medicaid and Medicare liens in other mass tort litigation, while at the same time negotiating the PCB plaintiffs’ Medicaid and Medicare liens; improperly paid expenses and fees to themselves before disbursing settlement funds to plaintiffs; and unreasonably delayed payment to plaintiffs so as to use the settlement funds to further defendants’ own monetary interests. Plaintiffs are now before the court seeking certification of a plaintiff class defined as follows:
Those 348 individuals that entered into a settlement agreement with BorgWarner Corporation in March of 2010 arising out of the civil actions of James Alford, et al. Kuhlman Corporation, et al., Cause No. 3:07-cv-00756-HTW-LRA, In the United States District Court for the Southern District of Mississippi; Dexter Allen et al. v. Kuhlman Corporation et al.; Civil Action No. 2008-0312 and Percy Alexander et al. v. Kuhlman Corporation et al., Civil Action No. 2008-0311, In the Circuit Court of Copiah County Mississippi, said purported class members being legally represented by the Defendants in the consummation of said settlement and in the negotiation of Medicare and Medicaid liens allegedly asserted against said settlement funds.
Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. To be certified under Rule 23, the class must first satisfy four threshold requirements of Rule 23(a):
(1) numerosity (a “class [so large] that joinder of all members is impracticable”); (2) commonality (“questions of law or fact common to the class”); (3) typicality (named parties' claims or defenses are typical ... of the class”); and (4) adequacy of representation (representatives “will fairly and adequately protect the interests of the class”).
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (alterations in original) (quoting Fed.R.Civ.P. 23(a)). If the Rule 23(a) prerequisites are met, the proposed class must also satisfy the requirements of Rule 23(b)(1), (2) or (3). Rule 23(b)(1) provides for certification of a mandatory class, whose members have no right to opt out, when “prosecuting separate actions by or against individual class members would create a risk” of
(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests....:
Fed. R. Civ. P. 23(b)(1); see also In re Katrina Canal Breaches Litig., 628 F.3d 185, 191 (5th Cir. 2010). Rule 23(b)(2) allows for certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). Finally, class certification under Rule 23(b)(3) requires that “questions of law or fact common to class members predominate over any questions affecting only individual members, ” and that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
The named plaintiffs, as the parties seeking certification, bear the burden of proof to establish that the proposed class satisfies the requirements of Rule 23. McManus v. Fleetwood Enterprises, Inc., 320 F.3d 545, 548 (5th Cir. 2003) (citation omitted); see Wal–Mart Stores, Inc. v. Dukes, __U.S.__, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”). Plaintiffs contend they have sustained their burden as they have shown that their proposed class meets all the requirements of class certification under Rule 23(a) and also satisfies Rule 23(b)(1), (2) and (3). Defendants, however, argue that plaintiffs’ proposed class meets none of the prerequisites to a class action under Rule 23(a) or (b). Having considered the parties’ arguments, the court is satisfied that plaintiffs have adequately demonstrated commonality, and perhaps typicality; but in the court’s opinion, they have not established the requirement of numerosity/impracticability or of adequacy of representation.
Addressing the Rule 23(a)(2) requirement of commonality, the Fifth Circuit recently explained that in the wake of the Supreme Court’s decision in Wal-Mart, it is no longer sufficient merely to show that “there is ‘at least one issue whose resolution will affect all or a significant number of the putative class members.’” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 839-40 (5th Cir. 2012) (quoting Forbush v. J.C. Penney Co., Inc., 994 F.2d 1101, 1106 (5th Cir. 1993)). Instead, to satisfy the requirement of commonality,
the claims of every class member must “depend upon a common contention .... of such a nature that it is capable of classwide resolution-which means the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.; see id. (“‘What matters to class certification ... is not the raising of common ‘questions'-even in droves-but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.’”) (quoting Nagareda, 84 N.Y.U. L. REV. at 132). Thus, the commonality test is no longer met when the proposed class merely establishes that “there is ‘at least one issue whose resolution will affect all or a significant number of the putative class members.’” Forbush, 994 F.2d at 1106 (emphasis added) (citation omitted). Rather, Rule 23(a)(2) requires that all of the class ...