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Civil Litigation Click here for the full text of this decision FACTS:Plaintiffs challenge defendants’ alleged practice of paying lower benefits and charging higher premiums to blacks in the sale of low-value life insurance. The district court denied plaintiffs’ motion to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(2), finding, inter alia, that the majority of class members would not benefit from injunctive relief. HOLDINGReversed and remanded. The exact number of class members continuing to pay discriminatory premiums is unknown, but the court is willing to assume -� without contrary evidence from defendants -� that the number exceeds the de minimis standard set by Bolin v. Sears Roebuck & Co., 231 F.3d 970 (5th Cir. 2000). The rule 23(b)(2) predominance requirement, by focusing on uniform relief flowing from defendants’ liability, “serves essentially the same functions as the procedural safeguards and efficiency and manageability standards mandated in (b)(3) class actions.” Allison v. Citgo Petroleum Co., 151 F.3d 402 (5th Cir. 1998). Therefore, to deny certification on the basis that the damage claims would be better brought as a rule 23(b)(3) class serves no function other than to elevate form over substance. Indeed, interests of judicial economy are best served by resolving plaintiffs’ claims for injunctive and monetary relief together. It would be mistaken to presume that because backpay �- a remedy readily calculable on a classwide basis �- is compatible with a rule 23(b)(2) class, any other remedy designated as equitable may automatically piggyback a claim for injunctive relief. To be sure, equitable monetary remedies are less likely to predominate over a class’s claim for injunctive relief, but this has more to do with the uniform character of the relief rather than with its label. Therefore, rather than decide whether plaintiffs’ claim for restitution is legal or equitable in nature, the court applies Allison and examine whether the claim predominates over the request for injunctive relief. Plaintiffs propose using standardized formulas or restitution grids to calculate individual class members’ damages. Defendants counter that “thousands” of grids must be constructed to account for the myriad of policy variations. That may be so, but the monetary predominance test does not contain a sweat-of-the-brow exception. Rather, the court is guided by its command that damage calculation “should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations.” Defendants have not sold dual plan or dual rate policies since the 1970s; some class members purchased their policies as far back as the 1940s. The district court denied certification also on the basis that individualized hearings are necessary to determine expiration of the statute of limitations for particular sets of policies. The predominance of individual issues necessary to decide an affirmative defense may preclude class certification. Limitations is an affirmative defense. Although, under sections 1981 and 1982, state law governs the substantive limitations period, federal law determines when the period accrues. Perez v. Laredo Junior Coll., 706 F.2d 731, 733 (5th Cir. 1983). It commences when the plaintiff either has actual knowledge of the violation or has knowledge of facts that, in the exercise of due diligence, would have led to actual knowledge. State law may further toll the running of limitations. Gartrell v. Gaylor, 981 F.2d 254 (5th Cir. 1993). To hold that each class member must be deposed as to precisely when, if at all, he learned of defendants’ practices would be tantamount to adopting a per se rule that civil rights cases involving deception or concealment cannot be certified outside a two- or three-year period. Such a result would foreclose use of the class-action device for a broad subset of claims, a result inconsistent with the efficiency aims of rule 23. Though individual class members whose claims are shown to fall outside the relevant statute of limitations are barred from recovery, a rebuttable presumption that the class lacks knowledge of defendants’ concealment is warranted at the class certification stage. Instead, defendants 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.” Conmar Corp. v. Mistui & Co. (U.S.A.) Inc., 858 F.2d 499 (9th Cir. 1998). Where events receive “widespread publicity, plaintiffs may be charged with knowledge of their occurrence.” United Klans of Am. v. McGovern, 621 F.2d 152 (5th Cir. 1980); In re Beef Antitrust Indus. Litig., 600 F.2d 1148 (5th Cir. 1979). The district court believed constructive notice to be an individual issue, or at least a regional one, stating that “whether a plaintiff in Michigan, as compared to a plaintiff in Louisiana, had constructive notice, is a fact issue which needs to be determined individually and not on a class-wide basis.” Whether the media reports were sufficiently publicized so as to provide constructive notice is an issue reserved for the merits. Our analysis is limited to whether this issue is determinable on a classwide basis. Had defendants provided evidence �- or even alleged �- that media treatment of this issue was more prevalent in some regions of the country than in others, the district court’s observation that individualized hearings are required to determine the geographic reach of constructive notice might be sustainable. The requirement of “widespread publicity” in McGovern, suggests, however, that the appropriate frame of reference is the national media market, at least for issues of national importance. Several publications listed by defendants, including the Washington Post, the Wall Street Journal, and USA Today, are available throughout the United States, and although many other publications are local newspapers, that fact is entirely consistent with national treatment of the issue. Neither the district court nor defendants give good reason for geographically splicing constructive notice. The court has no difficulty concluding that whether plaintiffs were provided constructive notice is an issue that can be decided on a classwide basis. OPINION: Smith, J.; Smith, Dennis and Clement, JJ. DISSENT: Clement, J. “Based on Allison v. Citgo Petroleum Co., 151 F.3d 402 (5th Cir. 1998), and McManus v. Fleetwood Enters., 320 F.3d 545 (5th Cir. 2003), the district court properly denied class certification to Plaintiffs. . . . “[T]he factual basis of Plaintiffs’ suit indicates that injunctive or declaratory relief does not predominate and that the monetary relief is not incidental. McManus, 320 F.3d at 553-54 (concluding that the factual basis of plaintiffs’ suit was “markedly different from the paradigm Rule 23(b)(2) class action,’ and thus class certification under Rule 23(b)(2) was inappropriate); James v. City of Dallas, 254 F.3d 551, 572 (5th Cir. 2001) (analyzing the factual basis of plaintiffs’ suit and concluding that class certification was appropriate). As this Court stated in McManus, permitting this case to be certified under Rule 23(b)(2) “would undo the careful interplay between Rules 23(b)(2) and (b)(3) [because] the class members would potentially receive a poor substitute for individualized money damages, without the corresponding notice and opt-out benefits of Rule 23(b)(3)[,] and defendants would potentially be forced to pay what is effectively money damages, without the benefit of requiring plaintiffs to meet the rigorous Rule 23(b)(3) requirements.” 320 F.3d at 554.

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