discussion of fifth circuit class certification issues and the possibility of pursuing class...

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Discussion ofFifh Circuit Class

Certification Issuesand the Possibilityof Pursuing Class

CertificationIn State Court

By Lawrence E. Abernathy, IIIand Eugene M. Harlow

Lawrence E. Abernathy, ll practices inLaurel, Mississippi. He practices plain-tiff law specializing in bank and insur-ance company fraud.Eugene M. Harlow has been practicinglaw with the law firm of Gibbes GravesMullins Hortman Harlow Martindale& Jones, PLLC in Laurel, Mississippi,since 1982. He is currently serving asPresident of the Jones County BarAssociation, and is Past President ofThe Mississippi Bar Young LawyersDivision, a inember of the AmericanBar Association, the MississippiDefense Livyers Association, and theDefense Research and Trial LawyersAssociation. His current areas of prac-tice include both plaintiff and defensepractice in areas inchuding personalinjuy litigation, conmmercial litigation,consamer litigation, insurance relatedlitigation, workers' compensation,Mediation and Arbitration.

1. The Law of Class Actions inFederal Court

A. Background InformationAs a general rule, for a suit to be main-

tained as a class action under FederalRule 23, Plaintiffs must allege factsestablishing each of the four thresholdrequirements of subsection (a) of theRule, which provides:

One or more members of a class maysue or be sued as representative par-ties on behalf of all only if (1) theclass is so numerous that joinder ofall members is impracticable [a/k/aNUMEROSITY]; (2) there are ques-tions of law or fact common to theclass [a/k/a COMMONALITY]; (3)the claims or defenses of the repre-sentative parties are typical of theclaims or defenses of the class [a/k/aTYPICALITY]; and (4) the repre-sentative parties will fairly and ade-quately protect the interests of theclass [a/k/a ADEQUACY].

See Fed. R. Civ. P.23(a).Plaintiffs must also allege that this

action qualifies for class treatment underat least one of the subdivisions of Rule23(b). A class action may be maintainedunder Rule 23(b)(1) where:

The prosecution of separate actionsby individual members of the Classwould create a risk of (A) inconsis-tent or varying adjudications withrespect to individual members whichwould establish incompatible stan-dards of conduct for the partiesopposing the Class, or (B) adjudica-tions with respect to individualmembers which would as a practicalmatter be dispositive of the interestsof other members not parties to theadjudications or substantially impairor impede their ability to protecttheir interests.

See Fed. R. Civ. P. 23(b)(1).Under Rule 23(b)(2), a class actionwill be appropriate where:The party opposing the Class hasacted or refused to act on groundsgenerally applicable to the Class,thereby making appropriate finalinjunctive relief or correspondingdeclaratory relief with respect to theClass as a whole.

See Fed R. Civ. P. 23(b)(2).Under Rule 23(b)(3), a class actionwill be appropriate where:

Continued on next page

The Mississippi Lawyer October, 2000 19

Discussion of Fifth Circuit Class Certification Issues and the Possibilityof Pursuing Class Certification in State Court

The court finds that the questions oflaw or fact common to the membersof the Class predominate over anyquestions affecting only individualmembers, and that a class action issuperior to other available methodsfor the fair and efficient adjudicationof the controversy.

See Fed R. Civ. P. 23(b)(3) (emphasisadded).

Plaintiffs bear the initial burden ofadvancing reasons why a putative classaction meets the requirements of Rule 23.However, Plaintiffs' burden is not a heavyone. See Peil it National SemiconductorCorp., 86 F.R.D. 357, 368 (E.D. Pa.1980). See also Anderson it City of Albu-querque, 690 F.2d 796, 799 (10th Cir.1982); Paxton i, Union Nat'l Bank, 688F.2d 552, 562 (8th Cir. 1982). Once aPlaintiff has demonstrated a preliminarylegal showing that the requirements ofRule 23 have been met, the burden ofproof is upon the Defendants to demon-strate otherwise. 2 H. Newberg, Newbergon Class Actions (3d Ed. 1992) (New-berg); 7.22 at 7-74 to 7-75. Provided thata Plaintiff's contentions regarding theclass issues are based upon a reasonablefoundation, the Court should not denycertification because of a Defendant'schallenge. See Sollenbarger v. MountainStates Tel. & Tel. Co., 121 F.R.D. 417(D.N.M. 1988); hi re hIdustrial GasAntitrust Litig., 100 F.R.D. 280 (N.D.111.1983); Kuck it Berkey Photo hIc., 81F.R.D. 736 (S.D.N.Y. 1979).

The Supreme Court has noted that[c]lass actions serve an important func-tion in our system of civil justice. Gulf OilCo. it Bentard, 452 U.S. 89, 99 (1981).The Court has also recognized that theclass action procedure is necessary forprivate lights of action to be initiated.Deposit Guar Nat'l Bank it Roper; 445U.S. 326, reh'g. denied, 446 U.S. 947(1980). As stated in Roper, class actionsserve an important function in our systemof civil justice because they permit Plain-tiffs to vindicat[e] the rights of individu-als who otherwise might not consider itworth the candle to embark on litigation inwhich the optimum result might be morethan consumed by the cost. Id. at 338.

The determinations called for by Rule23 are questions addressed to the sound

discretion of the District Court. Gulf OilCo., 452 U.S. at 100. A decision to grantclass certification is not a final order; itmay be altered or amended as the caseprogresses toward resolution on the mer-its. Fed. R. Civ. P. 23(c)(1); hi re SchoolAsbestos Litig., 70 F.2d 996, 1011 (3dCir. 1986); B C. Wright & A. Miller, Fed-eral Practice and Procedure 1785, at 128(1986) (Wright & Miller).

The Court's focus during a class certi-fication inquiry is simply whether theprerequisites of Rule 23 have been met.In determining whether an action may bemaintained as a class action, the issue ismerely whether the representative Plain-tiffs have demonstrated the probability ofthe existence of a sufficient number ofpersons inclined and similarly situated.The Court is not to conduct an explo-ration of the merits when deciding uponcertification of a class. Eisen v. Carlisle &Jacqueline, 417 U.S. 156, 177-78 (1974);Kahan it Rosenstiel, 424 F.2d 161, 168(3rd Cir. 1969), cert. denied, 398 U.S.950 (1970); Chestnut Fleet Rentals, hIc.it Hertz Corp., 72 F.R.D. 541, 543 (E.D.Pa. 1976). Moreover, since class determi-nation is made at the pleading stage of theaction, the substantive allegations in thecomplaint are accepted as true for pur-poses of the Class motion. Shelter RealtyCorp. it Allied Maintenance Corp., 574F.2d 656, 661 n. 15 (2d Cir. 1978); Black-ie it Barrack, 524 F.2d 891, 901 n. 17 (9thCir. 1975), cert. denied, 429 U.S. 816(1976); Vine i, Beneficial Fin. Co., 374F.2d 627, 633 (2d Cir.), cert. denied, 389U.S. 970 (1967).

B. New Class Action Concerns in theFifth Circuit.

Of course, as most legal scholars rec-ognize, the Fifth Circuit Court of Appealshas been somewhat active in recent classaction jurisprudence, concentrating con-siderable effort and time in recentlyaddressing the fate of millions of classaction claimants. It seems impossible toread a scholarly journal or report pertain-ing to class action litigation without beinginundated with articles about one particu-lar Fifth Circuit case, Castano v. Ameri-can Tobacco Co., 84 F.3d 734 (5th Cir.1996). In fact, Castano has gained notori-ety as one of the most oft-cited appellatecourt opinions that articulates clearly,

with a scholarly overtone, the reasonswhy a non-federal question class actionshould not be certified. Joel S. Feldman,Class Certification Issues for Non-Feder-al Question Class Actions Defense Per-spective, 612 PLI/Lit 41, 67 (1999). Cas-tano involved and consisted of claims byall nicotine-dependent persons in theUnited States since 1943.

The plaintiffs in Castano sought to cer-tify largest class action ever attempted infederal court, a class of all nicotinedependent persons in the United States.The plaintiffs alleged that the defendantsknew cigarette smoking was addictive,that they failed to inform cigarette smok-ers of this fact, and that they took actionsto addict cigarette smokers. Castano, 84F.3d at 737. These allegations were "coreliability issues" found by the district courtto satisfy the predominance requirement.On this basis, the district court certifiedthe class, choosing to withhold judgmenton the issue of whether the reliance ele-ment of the plaintiffs' claims was individ-ualized enough to require separate trialsfor each plaintiff. Id. at 739. The FifthCircuit reversed the district court's deci-sion granting class certification2. TheFifth Circuit found that the district courterred by failing to consider how varia-tions in state laws would affect predomi-nance, noting that, in multi-state classactions, variations in state law mayswamp any common issues and defeatpredominance. Id. at 74041.

The court also found that the districtcourt erred by failing to include consider-ation of how a trial on the merits wouldbe conducted. Id. at 740. A district courtcannot draw the necessary information tomake a predominance and superiorityanalysis in a mass tort without having aprior track record of trials to draw from.Id. at 747. The individual facts of eachcase may undermine predominance andsuperiority. Id. at 745. This can be sum-marized to say that without previous trialson the merits on these issues, a classaction is not yet ripe.

In its holding, the Fifth Circuitexpressed doubt about the class action asan acceptable dispute resolution schemewhen such problems are encountered,and in so doing, the Court imposed strin-gent tests on potential class plaintiffs thatdistrict courts must apply. Castano, 84

The Mississippi Lawyer20 October, 2000


F.3d at 742 n.15. For example, such strin-gent tests include: the plaintiff has theburden of satisfying the court that classtreatment is appropriate, the trial courtmust conduct a rigorous de novo reviewof state law, and conditional certificationcannot justify a court's overlooking prob-lems with predominance or superiority. Inshort, Castano reflects a new scrutiny thatis apprehensive of claims about the socialutility of class actions in the mass tort set-ting. Marascalco it hiternational Com-puterized Ortlhokeratology; 181 F.R.D.331, 33940 (N.D. Miss. 1998) (citing Inre Masonite Corporation, 170 F.R.D. 417,421 (E.D. La.1997)).

The Fifth Circuit in Castano noted thatin a multi-state class action, variations instate law may swamp any common issuesand defeat predominance. Caslano, 84F.3d at 741. In fact, the Fifth Circuitdevoted a great deal of time and effort inits analysis of variations in state law andnoted how variations in state law maydefeat predominance and undermine thesuperiority requirement of Rule 23(b)(3).Accordingly, federal district courts mustconduct an analysis of how variations instate law affect these class action requi-sites. d. at 741,742.

While the district court in Castanosuperficially reviewed state laws in anattempt to overcome the problem of legalvariations across numerous states, theFifth Circuit commented, [t]he surn--ysprovided .... failed to discuss, in anymeaningful way, how the Court coulddeal with variations in state law. d. at742, 743. These multitudes of state lawvariations and the problems posed bythem are discussed at great length by theFifth Circuit in FN 15. Id. at 742-43 n.15.

The district court's error pertaining topredominance was that it failed to consid-er how the plaintiffs' addiction claimswould be tried, individually or on a class-wide basis. The district court, based onEisen it Carlisle & Jacquelin, 417 U.S.156 (1974), and Miller it Mackey, 552 F.2d 424 (5th Cir. 1971), believed it couldnot look beyond the pleadings for its cer-tification decision which resulted in anincomplete and inadequate predominanceinquiry. Castano, 84 F.3d at 744.

The Fifth Circuit, in its predominanceanalysis, considered how the addictionclaims would be tried, either as a class or

individually, and found that, in order tomake such a determination, a federal dis-trict court must look beyond the plead-ings in order to make a significant deter-mination of certification issues. Id. Onlyby looking beyond the pleadings couldthe Court determine if individual issuespredominate. According to the Fifth Cir-cuit, because the district court did notengage in this analysis, class certificationwas in error. In short, going beyond thepleadings is necessary, as a court mustunderstand the claims, defenses, relevantfacts, and applicable substantive law inorder to make a meaningful determina-tion of certification issues. Id.

The Court also considered the superior-ity requirement and, as a result, found thatchoices of law, variations in state law,Erie, notice, subclasses, who is nicotinedependent, as well as other factors, wouldrender the class unmanageable. Caslano,84 F.3d at 747. Next, the court assertedthat, apart from the district court's errors,the class could not have satisfied Rule23's superiority requirement because theplaintiffs had alleged an immature tort.Id. The Court defined an immature tortaction as one that lacks a "prior trackrecord of trials from which the districtcourt can draw the information necessaryto make the predominance and superiori-ty analysis. Id. In the court's view, classcertification based on immature torts isimproper because the lack of adequateinformation exacerbates the problemsinherent in mass tort certification andthus creates an unacceptably "higher thannormal risk that the class action may notbe superior to individual adjudication." Id.

The Fifth Circuit next considered thedistrict court's reasoning that certificationof a trial class would preserve judicialresources by resolving millions of claims,which would have required millions ofindividual trials. The Fifth Circuit did notaccept this argument, finding that such anissue might not materialize. Id. at 74748.The Appellate Court reasoned that untilindividual claims have been filed, thecourt cannot presume all or any of theplaintiffs will pursue legal remedies. Id.at 748.

The Court, also, considered an addi-tional issue pertaining to superiority,when it stated:

Class certification magnifies andstrengthens the number of unmerito-rious claims in addition to skewingtrial outcomes, class certificationcreates insurmountable pressure ondefendants to settle, whereas indi-vidual trials would not. The risk offacing an all-or-nothing verdict pre-sents too high a risk, even when theprobability of an adverse judgment islow. These settlements have beenreferred to as judicial blackmail.

Castano, 84 F.3d at 746.

Consequently, pressure on defendants tosettle claims which lack merit constitutesan additional consideration that under-mines the superiority requirement. Id.

In light of the holding in Castano, oneimportant lesson for practitioners to learnis that variations in state law may swampany common issues and defeat predomi-nance. 1. at 741. Therefore, if you intendto certify a multi-state class, the attorneymust be prepared to present to the court

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proof that the various states' laws are con-sistent with the plaintiff's claims. If thereare variations or inconsistencies, theattorney must be prepared to show thatthe inconsistencies between states do notaffect the predominance and superiorityof the class action. For attorneys, it wouldbe wise to consider whether the inclusivestates' laws are inconsistent with yourtheory. If so, it may be to the attorney'sadvantage to exclude those states fromyour certification process and to considerwhether to leave them excluded orwhether or not they could be grouped as asubclass' based on their own unique prin-cipals of law. Without question, in light ofCastano, your certification process mustidentify the substantive law issues whichwill control the outcome of the litigation,and the burden of establishing a lack ofstate law variations affecting predomi-nance and superiority is squarely placedupon the plaintiff. With that said, one ruleremains clear: when conduct on the partof the plaintiffs or defendants individual-izes each case, class certification will beinappropriate.

C. Amchern Products Inc. v. Windsorand Class Settlement

As typical with other types of cases,class actions matters are often settled.However, in light of recent announce-ments by the United States SupremeCourt, the Court must make two determi-nations before approving a class settle-ment: (1) that the settlement is a fair andreasonable one and (2) that the classshould be certified. In the United StatesSupreme Court case of Amchem Products,Inc., v. Windsor, 521 U.S. 591(1997), thehigh court reviewed a decertification of aclass action suit by the Third Circuitwhich involved a class action for settle-ment purposes only regarding asbestosexposure by the plaintiffs. See Georginev. Amchen Products, inc., 83 F.3d 610(3rd Cir. 1995). Amchein is an importantnew pronouncement in class actionjurisprudence because the Supreme Courtheld that "settlement-only" class actionsmust still pass Rule 23's certificationmuster, regardless of the wishes of classrepresentatives, defendants, and theirrespective lawyers. Aichem Products,hIc., 521 U.S. at 619-620. Presented witha pre-packaged class action lawsuit and

settlement, the Supreme Court affirmedthe Third Circuit's decision to decertifythe proposed class.' Id. at 611-612.Absent class members, the Court held,require the protection that only class cer-tification requirements can provide. Id. at621. Stated another way, if a class is notfit to be certified, it is not fit to be settled.Finally, the Court held that a commoninterest in settlement cannot "predomi-nate" over individual issues within themeaning of FRCP 23(b)(3). Id. at 623-624. Yet, even though the Court did notoverrule the decertification by the ThirdCircuit, the Court did say that trial man-agement was not to be inquired into for aclass action for settlement purposes only.Id. at 591. Hence, for class settlementpurposes, only issues of manageabilityneed not be considered, because, if thesettlement is approved by the Court, therewill be no trial to manage.

II. The Law of Class Actions inMississippi State Court'

A. Class action suits have been rec-ognized by Mississippi Courts ona limited basis.

The state of Mississippi has not adopt-ed a statute or rule setting forth the guide-lines for class actions in state court.Therein lies the difference between theclass action device in state court and theclass action device in federal court. Stat-ed another way, the right of the classaction device and the procedure set forthin which to commence said device isdelineated by Fed. R. Civ. P.23, but theState of Mississippi lacks any such rule orstatutory guideline.

Nevertheless, although Mississippilacks a clear guideline such as Fed. R.Civ. P.23, there appears to be authorityallowing Plaintiffs to proceed with classactions in Chancery Court. However,assuming class actions are available inMississippi Chancery practice, in orderfor a class action to be within the juris-diction of the court in this state, the suitmust involve a matter of Equity cog-nizance. See Barrett v Coullet, 263 So.2d 764 (Miss. 1972); Henty v. Donovan,148 Miss. 278, 114 So. 482 (Miss. 1972);Mississippi Power Co. v. Ballard, 166Miss 631, 147 So. 874 (Miss. 1933);Newell i: Illinois Central R.R., 106 Miss

182, 63 So. 351 (Miss. 1913); ScottishUnion and Nat'l his. Co. v Warren-GeeLumber Co., 103 Miss. 816, 60 So. 1010(Miss. 1913); Newton Oil and Mfg. Co. vSessian, 102 Miss. 181, 59 So. 9 (Miss.1912); Cumberland Tele. & Tele. Co. vWilliamson, 101 Miss. 1, 57 So. 559(Miss. 1912).

The class action device has been recog-nized as a matter of general equity juris-diction, in Mississippi Chancery Courtsat least since 1876. In the case of McPike,Admin. v. Wells, Admin., 54 Miss. 136,145 (Miss. 1876), the Court stated:

It has always been a principle of thecourt of equity in England and in thiscountry, that all persons interested inthe litigation should, if practical, bebrought before the court. The rulehas always been recognized as oblig-atory in the Federal Courts, the onlyrelaxation of it where parties arevery numerous, in which case somemay sue on behalf of all. The casebecomes a representative suit for oragainst a few who represent themany having a like common interest.(emphasis added).

See also Floreen it Saucier, 28 So. 2d 557(Miss. 1946). However, as was apparent-ly understood, [T]he class action, like anyother suit in equity, must present a matterfor equity cognizance. Thompson v. And-ing, 370 So. 2d 1335, 1338 (Miss. 1979)(citing Tribette v. Illinois Central Railroad,70 Miss. 182, 12 So. 32 (Miss. 1892)); see,e.g., Henry v. Donovan, 148 Miss. 278,114 So. 482 (Miss. 1972); Newell i, Illi-nois Central Railroad, 106 Miss 182,63So. 351 (Miss. 1913).

Early Mississippi courts utilized theclass action device in numerous' factualcircumstances. As one commentatorexplained, if a trust deed be made for thebenefit of numerous creditors, generallyone of them may sue to enforce it by acomplaint in his own name and for allothers who may choose to come in.Warner, Mississippi Chancery Practice,130 (1991) (Rev. ed.) (citing Ber', vBacon, 28 Miss. 318 (1854)). Similarly,the class action device has been utilized,among other ways, by taxpayers seekingto restrain the diversion of public fundsand/or to enjoin the wrongful use ofbonds, see Clarksdale it Broaddus, 28



So. 954 (Miss. 1900), to prevent theremoval of a county seat, see Hinton vPero Co., 36 So. 565 (Miss. 1904), andby taxpayers seeking to recover wrongfulpublic expenditures, see Brown v Reeves,92 So. 825 (Miss. 1922). See Warner, Mis-sissippi Chancer), Practice, 130 (1991).

Nevertheless, although the class actiondevice has been utilized in Mississippicourts, there has been a reluctance of Mis-sissippi courts to countenance classactions at all. . . . Chancer, Clerk ofChickasaw Co. v. Wallace, 646 F.2d 151,155 (5th Cir. 1981). In fact, such reluc-tance was evidently apparent prior to theadoption of the Mississippi Rules ofCivil Procedure in 1982 (the rules). TheFifth Circuit Court of Appeals recognizedthis pre-1982 reluctance, as well as theunclear viability of the class action devicein Wallace when it cited the trial court'sbench opinion noting that, in Mississippi,the state statutes and the state proceduredo not recognize the right of a person tobring a class action. There is no way toget that kind of suit into the state courts.Id. at 155. The Fifth Circuit further noted

that Mississippi's reluctant approach toclass actions made them [d]oubt the feasi-bility of resolving the issues presented bythis lawsuit in a Mississippi court. W.

As noted, Mississippi Courts have beenreluctant to allow the class action deviceto proceed. See, e.g., Thompson i And-ing, 370 So. 2d 1335 (Miss. 1979) (deny-ing class status to property owners' suitseeking reassessment of school tax liabil-ity and refunds); Bradley i State, 355 So.2d 675 (Miss. 1978) (affirming dismissalof purported class action on behalf ofMississippi prisoners in work-release pro-gram); Evans i. Progressive Cas. his. Co.,300 So. 2d 149, 152 (Miss. 1974) (Classactions go against the grain of dueprocess and equal protection of the law.Rules applicable to such actions musttherefore, not be broadened or relaxed butapplied with consistency.); Lidell v Lit-ton Sys., hIc., 300 So. 2d 455 (Miss.1974) (denying class status to suit forusury penalties on behalf of bonowersfrom defendant's credit union). Contraryto these opinions is McKee i Hogan, 110So. 775 (Miss. 1926) (holding that a pri-

vate citizen can litigate public questions ifhe has applied to the proper party withoutredress and he has invited other citizens tojoin with him in the litigation). Eventhough Mississippi courts have beenreluctant to use the class action device,Mississippi statutory law implicitly rec-ognizes the class action device as a viableprocedural mechanism. Miss. Code Ann.section 11-53-37 (1972), reads as follows:

Where a party hereafter institutes asuit for the benefit of himself and allothers similarly situated, and therebythere is in such suit recovered or pre-served property or a fund for thecommon benefit, the chancery courtmay make an allowance to such partyof the reasonable costs incurred,which costs shall include the neces-sary disbursements, and reasonablesolicitor's fees, out of the propertyrecovered or preserved for the com-mon benefit.

Miss. Code Ann. 11-53-37 (1972) (empha-sis added).


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Hence, the inference is raised that, if classactions were not allowed, there would beno code section allowing attorneys' feesfrom the common fund.

Nevertheless, it is a fact of Mississippijurisprudence that very few class actionshave been granted; the vast majority havebeen denied. There are many reasons whymost class actions have been denied, butit appears that the major reason for suchdenials is because those who attempt toemploy the class action device did not doso according to the nan'ow guidelinesestablished by previous case law. In a siz-able percentage of the failed attempts, theplaintiff seems to bring legal rather thanequitable causes of action, and as a result,the Court consistently holds that there isanr adequate remed' at law. Remember,the requisite factor that must be alleged isthat the action must be one of equity cog-nizance. See Barrett v Coullet, 263 So.2d764 (Miss. 1972). This main element isalmost always missing in each failedattempt.

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relief in June of 1972. See Barrett 263 So.2d 764. In Barrett, a ticket holder to aclosed circuit television showing of achampionship boxing match brought aclass action, on behalf of himself and allothers similarly situated, for breach ofcontract and breach of implied warrantybecause of alleged poor reception of thefight. Id. at 764. The court found thatthere was not an ascertainable class repre-sented by complainant, that there was nota well-defined community of interest inthe questions of law and fact involved,affecting the parties to be represented, andthere was an adequate remed' (it law. id.at 767. The Barrett Court warned:

[a] suit on behalf of a class should beclosely studied, carefully analyzedand permitted only in clear casesbecause by its very nature such anaction deprives nonappearing partiesof their separate personal day incourt, of their right to a choice ofremedy, and they are bound foreverby the decision rendered.

Id. at 766.However, despite its analysis and

accompanying warning, the Court did notforeclose the class action device as a pro-cedural mechanism, even though it clear-ly had the opportunity to do so. In fact theCourt said that class actions are permittedonly in clear cases. Id. The Court rea-soned that the ticket purchasers had anadequate remedy at law as individuals.'Id.

In light of the Court's analysis involv-ing the adequate remedy at law, it isimportant to note that the class actiondevice is well-suited for cases whichinvolve small or nominal recoveries.Cases which involve small or nominalrecoveries are termed negative valuecases, and such actions may be well suit-ed for class treatment. The U.S. SupremeCourt opined in Ainchem i, Windsor, 521U.S. 591(1997), that:

[tlhe policy at the very core of theclass action mechanism is to over-come the problem that small recover-ies do not provide the incentive forany individual to bring a solo actionprosecuting his or her rights. A classaction solves this problem by aggre-gation the relatively paltry potential

recoveries in something worth some-one's, usually an attorney's, labor.On the other hand the higher the likeli-

hood of individual monetary recovery, thegreater tile personal interest will be inindividually controlling the litigation.Said another way, positive value suits areless suited for class treatment. SeeAmchem, 521 U.S. at 616 (Th[e] interest[in individual control] can be high wherethe stake of each member bulks large andhis will and ability to take care of himselfare strong; tile interest may be no morethan theoretic where tile individual stakeis so small as to make separate actionimpracticable.)

It would seem that, in the class actioncases that are denied by tile MississippiSupreme Court, there is no opt-out provi-sion for those who wish to exclude them-selves, as is available in Fed. R. Civ. P.23(b)(3). When the Mississippi Courtholds that there is an adequate remedy atlaw, is it really saying that the individualstakes are high enough for individual con-trol? Rule 23(b)(3) allows money dam-ages, requires notice and opt-out opportu-nity, while 23(b)(1) and (2) do not gener-ally allow money damages, require noticeor allow opt-out. This is because the latterare equitable remedies.

Tile Court entertained another appealinvolving class actions two years afterBarrett. In Evans i Pogressive Cas. his.Co., 300 So. 2d 149 (Miss. 1974), theplaintiffs alleged that corporate defen-dants had conspired among themselvesand with their agents to charge usuriousinterest in excess of tile statutory limitswhen financing premiums on insurancepolicies issued to certain individuals, pur-portedly represented by the plaintiffs via aclass action mechanism. The HindsCounty Chancery Court entered a decreedismissing the bill for want of jurisdictionand the plaintiffs appealed. On appeal, theMississippi Supreme Court held:

[pilaintiffs could not maintain a suitas a class action cognizable underequity jurisdiction of tile state, wherea well defined community of interestin questions of law in fact was lack-ing, and adequate remedy at lawexisted for each of the separate anddistinct claims revealed by therecord, and complicated calculations

24 October, 2000 The Mississippi Lawyer


and computations were required foreach of the finance contracts involved.

Evans, 300 So. 2dat 149.The Evans court cited Barrett and statedthat:

[iun denying the class action effort,this court in the Barrett decisionannounced three prerequisites for aclass action: (1) An ascertainableclass. (2) A well defined communityof interest in questions of fact andlaw affecting the members of theclass. (3) A right of recovery basedupon the same essential facts.

Id. at 152.The court also noted that:

lelach appellant and each potentialmember of the purported class hasassociated with him a different set offacts and circumstances. Treating thematter as a class suit would confrontthe trial court with as many differentsets of facts as there were membersof the class. Such a procedure wouldrequire the chancellor to make sepa-rate fact findings and calculationsbecause each of the alleged classmembers was a policyholder with aseparate contract of insurance andrelated financing. Here the appellantslumped together numerous separateand distinct claims which were pre-sented to the chancellor as one largepackage. Such an agglomeration ofunrelated claims against commondefendants does not constitute acommunity of interest even thoughsimilar legal questions may be asso-ciated with each of the allegedclaims.

Id.Further, the Court noted, Rules applicableto such [class] actions must... not bebroadened or relaxed but applied withconsistency. Id. at 153. No doubt theCourt recognizes the class action device,the question is whether the MississippiSupreme Court will allow the Aright caseto proceed?

In May of 1981, the MississippiSupreme Court approved adoption of theMississippi Rules of Civil Procedure withan effective date of January 1, 1982. Iron-ically, the federal counterpart to Rule 23,

Mississippi Rules of Civil Procedure 23was omitted from the rules. The disposi-tive inquiry is whether the omission ofRule 23 and the accompanying negativecomments pertaining to class actionsacted to influence the Court to actively,either expressly or implicitly, preclude thedevice from Mississippi practice. A betterquestion and an issue of first impressionin this state may be whether the failure toadopt a Rule 23 has, in and of itself, apreclusive effect on the class actiondevice. In other words, does the intention-al omission of the class action rule oper-ate as a conflict with previous Mississippipractice, thus disallowing the class actiondevice pursuant to the preamble of therules, which makes evidently clear, [i]nthe event of a conflict between these rulesand any statute or court rule previouslyadopted these rules shall control.M.R.C.P., Order Adopting the MississippiRules of Civil Procedure (1982). Yet, it isimportant to note that the Order mentionsonly rules and statutes, saying nothingabout Mississippi case law.

B. Did the adoption of the Rules actto prevent class actions in Missis-sippi Courts?

The Comments following omittedRule 23 M.R.C.P. (1982) state:Class action practice is not beingintroduced in the Mississippi trialcourts at this time.Few procedural devices have beenthe subject of more widespread criti-cism and morc sustain attack - andequally spirited defense - than prac-tice under Federal Rule 23 and itsstate counterparts. The dissatisfac-tion focuses primarily on Rule 23(b)(3), which permits suits on thepart of persons whose only connec-tion is that one or more commonissues characterize their position inrelation to an adverse party.Aside from general proposals to pro-vide jurisdictional floors and ceilingsto regulate the size of class actions,greater judicial control over awardsof attorneys' fees, and replacing theopt-out provisions with opt-inrequirements, no meaningful reformshave as yet been developed to render

class action practice a more manage-able tool....Consequently, an interesting question

is posed: were class actions not beingintroduced into Mississippi trial courtsbecause Mississippi already allowed theclass action device in our courts of equity,or was it because Mississippi was takingan express stand in disallowing any fur-ther class actions? At least one well-known commentator has already attempt-ed to answer this very question. SeeWarner, Mississippi Chancery Practice,130 (Rev. ed.) (Stating, The comments toRule 23 indicate that class action practicewas not being introduced into Mississippitrial courts at the time the Rules of CivilProcedure were adopted. It was not nec-essary to introduce class action, as italready existed.) See also Griffith, Missis-sippi Chancer' Practice, 130 (2d ed.1950) (defining class suits as where theparties in interest are very numerous, orfor other sound reason made to appear,one or more are admitted to sue for them-selves and for others similarly situated.)

Prior to 1982, as noted above, classactions were allowed in MississippiChancery Courts under certain limitedcircumstances. Shortly after the adoptionof the rules, the case of Tideway v Serio,431 So.2d 454 (Miss. 1983) was released.Tideway involved a class action appealfrom the Chancery Court of AdamsCounty. Id. Plaintiff's bill sought to com-pel the defendants to execute certainassignments, and sought other mandatoryinjunctive relief, accountings, actual andpunitive damages, attorney's fees, etc. 1I.at 466. Squarely presented before theSupreme Court was the question ofwhether the Chancery Courts of this statehad the power to assess punitive damages.Id. at 459. For the instant discussion, it isinteresting to note that although this was aclass action appeal, the Court for whatev-er reason did not even address the classaction aspect of this case, but rather wenton to determine whether or not theChancery Courts of this state had the dis-cretionary power to assess punitive dam-ages according to the same substantivelaws as applied in our Circuit Courts. Itwould seem logical, with the ink barelydry on the new rules, that, if the Court




intended to abolish class actions inChancery Court, it would have done sowith 77deway, a class action appeal.

Of course, while the pre-rule cases andtheir accompanying analysis demonstratethat the class action device is a narrowand treacherous path, an argument can bemade that recent Mississippi jurispru-dence does not challenge the class actiondevice as a viable procedural mechanismin courts of equity involving only equi-table issues, If the Court had intended toeliminate class actions, it certainly hashad a clear opportunity to do so in numer-ous post-rule cases.

Since the adoption of the MississippiRules of Civil Procedure in 1982, theSupreme Court of Mississippi has consis-tently declared that the class action deviceis not generally' available in Mississippi.For instance, in Marx i. Broom, 632 So.2d 1315 (Miss. 1994), plaintiffs wereseeking a refund of taxes imposed upontheir retirement funds. In so doing, theplaintiffs requested the court to certify the

suit as a class action. In denying thisrequest, the court held that the lower courtcorrectly found that there was no classaction available in this case. Id. at 1322.The court supported its holding byremarking in enacting the Rules of CivilProcedure, this court intentionally omit-ted Rule 23, which would have coveredclass actions. The comments to the rulesclearly state: class action practice is notbeing introduced into Mississippi TrialCourts at this time. This has not changed.Id.

The Marx Court then noted that, priorto the enactment of the rules, a possibilityof class action suits as a matter of generalequity jurisdiction did exist under limitedcircumstances. See Marx, 632 So. 2d at1322. Again, in light of the above analy-sis, it seems as though the Court intendedto eliminate class actions from Mississip-pi practice, including equity practice. Onthe other hand, if that was the Court'sintention, it had every opportunity to doso. By not ruling with greater clarity, the

Court seems to infer the unavailability ofthe class action device, and at the sametime, those attorneys advocating the classaction device might argue, the Court leftthe door open that the class action devicebe allowed to proceed as long as thelower court makes specific supportablefindings that meet the requirements for aclass action. Support for either statementcan be found in the Court's assertion inMarx that [e]ven if [the class actiondevice] was available, the lower courtmade specific, supportable findings thatthe requirements for a class action werenot met. d. The question is whether theCourt has left open the possibility thatclass actions are available under Missis-sippi equity jurisdiction? Indeed, bothpositive and negative inferences pertain-ing to the class action device can bedrawn, through clever imaginations, fromthe Court's holdings in Marx.

The Court has maintained similar posi-tions in subsequent cases, expressly rec-ognizing that the Mississippi Rules do not

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provide for class actions where legalissues are being considered. It would beargued that the Court has not been as clearin cases involving equitable issues, SeeLeaf River Forest Product, hic. v. Deakle661 So. 2d 188,.193 n.4 (Miss.1995)(finding that, since the rules omitted rule23 thereby precluding class actions as arecognizable remedy," a bill of peace wasproper see further discussion in&'ra); Mis-sissippi High School Activities Associa-tion hIc. v Coleman, 631 So 2d 768, 773n.2 (Miss. 1994). An examination ofrecent Mississippi case law seems toclearly prohibit the class action devicewhere issues of law (vs. equity) are beingconsidered; however, the question mustbe considered whether the Court intendedto reverse past precedent and thus fore-close the possibility of class actions inmatters of equity cognizance. The answerto this question, at this stage, is not clear.

Recent Mississippi law takes a prohibi-tive approach to the class action deviceseeking purely legal redress. Yet, until theCourt makes a more clear pronounce-ment pertaining to the class action deviceas a viable procedure in equity, a rationalargument can be made that the classaction device still remains a viable proce-dural alternative for matters of equitycognizance.

With the above being said, it is impor-tant to note that once the Chancery Courttakes subject matter jurisdiction of a mat-ter, it may award all appropriate remedies,legal as well as equitable. For example,the Court in Shali it Owenl Gin Co., stat-ed the following:[i]t is settled beyond questions in thisjurisdiction that where a suit isbrought in Chancery Court and thecourt takes jurisdiction on any oneground of equity, it will proceed inone suit to a complete adjudicationand settlement of every one of all theseveral disputed questions materiallyinvolved in the entire transaction,awarding in a single comprehensivedecree all appropriate remedies, legalas well as equitable, although all theother questions involved would bepurely of legal cognizance; and if theground of equity fails under theproof, the cause may be retained fora complete final decree on theremaining issues, although the latter

present legal subjects only and thedecree would only legal rights andgrant none but legal remedies.

Shaw, 90 So. 2d at 181.See also Tidewav, 431 So. 2d at 464 (stat-ing foInce Chancery Court jurisdictionotherwise attaches, our chancery courtsare fully empowered to grant wholly legalrelief, and [tihese legal claims are heldand adjudicated within the pendant sub-ject matter jurisdiction of the chancerycourts).

Conversely, the same is true for CircuitCourts. It may be fairly said that the Cir-cuit Courts of this state have, for years,been empowered to act upon equitableprincipals where such was appropriate.See, e.g., State i Maples, 402 So.2d 350,351 (Miss 198 1) (Circuit court's issuanceof writ of prohibition Governed by equi-table principals that there is no wrongwithout a remedy); Chathain it Johnson,195 So.2d 62, 64-65 (Miss 1967) (Appli-cation of a writ of mandamus addressedto Circuit court to be considered accord-ing to Equitable principals); United StatesFidelity and Guat: Co. v Statefr Use Y"Strinefellow, 254 Miss 812, 821, 182So.2d 919, 924 (1966) (Circuit Courtenforced equitable principals that judg-ment creditor of an indemnity may re'ov-er for debt due from an indenietor to theindemnity under the indemnifying con-tract of insurance; affirmed on authorityof section 147); Dilworth %t Fed. ReserveBank of St. Louis, 170 Miss 373, 388, 150So. 852, 824 (1933) (Circuit Court has thepower to administer equity).

Hence, once a Circuit Court acquiressubject matter jurisdiction, it is fullyempowered to exercise its pendant juris-diction to grant wholly equitable reme-dies. Class actions were developed as amatter of equity jurisdiction in England atabout the time of Henry IV. The classaction device is indeed an equitable rem-edy. Therefore, in light of the above, alogical argument can be tendered thatonce a Circuit Court acquires subject mat-ter jurisdiction, it should be empoweredto exercise its pendant jurisdiction anddecide equitable class issues.

The fact that the Chancery Courts ofthis state may have the power to grantclass actions, but that the Circuit Courtsdo not, makes little sense in this modernage. It would seem that the Circuit Courts

of this state have just as much of a con-science as the Chancery Courts. Tradi-tionally, courts of law as a matter of pen-dant jurisdiction have been able to exer-cise equitable powers. As such, an inter-esting question is why an equitable devicesuch as the class action should be treatedany differently? As the Court noted in77deway:

Invoking Holmes again, we arereminded that It is revolting to haveno better reason for a rule of law thanthat so it was laid down in the time ofHenry IV.... Holmes continued toremind us that it is still more revolt-ing if the grounds upon which it laiddown have vanished long since, andthe rule simply persists from blindimitation of the past. 7ldeway, 431So. 2d at 463.It is important to recognize that the

class action device is sometimes the bestdevice to assure a just outcome. Thisdevice can sometimes be as helpful todefendants as plaintiffs. However, theimportant consideration for the bench andbar is that the device be used and allowedwith an eye towards justice and not as atool to accomplish an unjust windfall.

C. The Bill of Peace in ChanceryCourt.

In light of the apparent confusion sur-rounding the viability of the class actiondevice, clever lawyers are attempting toproceed down different proceduralavenues towards the same destination, adestination involving multiple partiesengaged in a single venue."' Two of theprocedural avenues attorneys are attempt-ing to navigate include the bill of peaceand joinder under Rules 19, 20 and 42.

At least one Mississippi case, Tribett vIllinois Ceti. R.R., 70 Miss. 182, 12 So.32, (Miss. 1892), teaches that pursuant toequity jurisdiction, multiplicity of claimscould be a ground for equitable relief inthe form of a single proceeding. A some-what similar approach for this relief hasbeen known as the Bill of Peace. Theobject of a Bill of Peace is to obtain theprotection of equity against the necessityfor maintaining or defending numerousactions at common law in order to protectthe interests of the parties, where claims




of more than one side were involved.Henry J. McClintock, McClintock onEquity 176 at 480 (2d ed. 1948). Howev-er, the Bill of Peace is usually not allowedwhere many claims are made against asingle negligent act of a defendant for tworeasons. First, the bill is not allowedbecause the resolution of a common ques-tion would not relieve the necessity ofnumerous actions at law, and second it isnot allowed because the right to a jurytrial is considered exceptionally impor-tant to Plaintiffs. hi. at 486-87. Neverthe-less, if the defendant suffers from extremehardship, the Court may provide relief, ifany can be given. Id.

In 1995, the case of Leaf River ForestProducts, hie., v. Deakle, 661 So. 2d188 (Miss. 1995), gave the MississippiSupreme Court an opportunity to partici-pate in a modern day analysis of the Billof Peace. There, the court was faced withmultiple lawsuits filed in separate Missis-sippi Circuit Courts against Leaf RiverForest Products and other defendants. Id.at 190. It is important to note that these

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were legal courses of action.In an attempt to enjoin the multiplicity

of suits, the defendants filed a Bill ofPeace in Perry County Chancery Courtagainst more than 7,000 plaintiffs, includ-ing the plaintiffs' attorneys. Id. The Bill ofPeace requested that Perry CountyChancery Court take jurisdiction of all theabove mentioned litigation. h/. After ahearing on the matter, the trial court foundthat filing the bill of peace was frivolousas to the plaintiffs' attorneys, and LRFPappealed to the Mississippi SupremeCourt. Id.

The Court, in considering the Bill ofPeace, noted that the Bill of Peace was aprocedural device employed when equi-table relief was needed to prevent thehardship that would result from prosecut-ing or defending numerous actions at law.Deakle, 661 So. 2d at 192. The Court fur-ther noted that a Bill of Peace is general-ly sustainable where numerous suitsaffect a common title or community ofright or interest or where there is a com-mon question of law or fact.... I. at 193.

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Also, the Court indicated that a ChanceryCourt's equity jurisdiction may properlybe invoked to enjoin a multiplicity of suc-cessive suits at law by the same plain-tiff(s) [and, additionally,] to prevent amultiplicity of suits by joining all partiesin one suit and determining the sole ques-tion upon which past, present, and futureliability rests, hi. After the ChanceryCourt exercises such jurisdiction, it maythen proceed to complete full adjudica-tion of the suit, including all legal andequitable remedies. Id. As stated, the con-verse is true for Circuit Courts' ability toexercise jurisdiction over equitable reme-dies.

The Court, after discussing the above,found that the numerous suits affected acommunity of interest which was delin-eated as both the defendants' interest indefending the suits and in managing dis-covery. See id. at 193-94. In recognizingthe Bill of Peace as a proper proceduralremedy, the Court noted that a Bill ofPeace would not have been proper hadMississippi law recognized an adequateprocedural remedy at law such as classactions. In fact, the Court noted specifi-cally that, since Mississippi did not adopta rule for class actions in the MississippiRules of Civil Procedure, the Bill ofPeace provided a proper proceduralremedy. See id. The Court continued bystating:

Whether denominated a Bill of Peaceor a motion for other equitablerelief.., once the Chancery Courtexercised its equity jurisdiction overany part of the... litigation, it couldhave proceeded to a complete adjudi-cation of all claims. The Perry Coun-ty Chancery Court could have grant-ed the equitable relief requested andproceeded to a complete adjudicationof the dioxin cases.

Deakle, 661 So. 2d at 194.

In conclusion, the Court held, [gliventhe community of interest, the lack ofremedy provided by the M.R.C.P., and theability of the Chancery Court to impanelajury for certain issues, [defendants'] Billof Peace had some hope of success andstated a viable claim at the time it wasfiled. d. at 197.


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Hence, in light of the above, the fol-lowing question is posed: if Mississippidoes not formally recognize class actionsuits, is it possible for plaintiffs to proceeddown an alternate avenue through theequitable Bill of Peace and, consequently,to garner the same procedural results aclass action suit would have fashioned?Based on the analysis above, the answerseems to be, in limited circumstances,yes. However, there are several procedur-al differences between the two devicesthat must be considered before a defini-tive answer can be reached.

One substantive difference between theBill of Peace and a class action is that aclass action, on one hand, is a device bywhich the rights of parties not actuallybefore the court may be adjudicated. It,therefore, operates as an exception to thegeneral rule that litigation be conduct-ed by and be binding on only individu-ally named parties. See, e.g., Califanoi. Yamasaki, 442 U.S. 682 (1979). On theother hand, a Bill of Peace is a procedureby which numerous parties, each main-taining its own separate claim, may bebrought into court in an effort to provideequitable relief from hardships faced asthe result of attempting to defend againstpotentially hundreds, if not thousands, ofsuits already proceeding. In other words,the Bill of Peace does not appear to allowa plaintiff to bring an action on behalf ofa class of unnamed persons but, instead,operates as a device for defendants orplaintiffs to consolidate cases alreadyfiled by numerous named parties. It,therefore, may be possible for a plain-tiff(s) to file a number of individualactions at law in Circuit Court and, then,apply to the Chancery Court under theBill of Peace for relief of burdensome dis-covery, etc. Indeed, a multiplicity of suitsfiled by multiple proper and named plain-tiffs would present a daunting prospect toany defendant. As noted above, commu-nity of interest such as the defendant'sinterest in defending the suits and in man-aging discovery would certainly beaffected by numerous suits. Nevertheless,that is not to say that, in certain equitablecircumstances, the Chancery Court doesnot have the equitable power to consoli-date cases in an effort to alleviate varioushardships. N

I. This paper was written by Lawrence E. Aber-nathy, III, Attorney at Law of Laurel, Mississippi;Eugene M. Harlow, partner in the law firm ofGibbes, Graves, Mullins, Hortman, Harlow, Mar-tindale & Jones; and Christopher B. McDaniel,associate in the law finn of Gibbes, Graves,Mullins, Hortman, Harlow, Martindale & Jonesof Laurel, Mississippi for presentation at 2000Summer School for Lawyers held July 10-12 atSandestin Resort, Destin, Florida.2. Although Rule 23 (c)( 1) requires that a classshould be certified As soon as practical, andallows a court to certify a conditional class, itdoes not follow that the rules' requirements airelessened when the class is conditional. Condi-tional certification is not a means whereby thedistrict court can avoid deciding whether, at thattime, the requirements of the rule have been sub-stantially met. The purpose of conditional certifi-cation is to preserve the court's power to revokecertification in those cases wherein the magni-tude or complexity of the litigation may eventu-ally reveal problems not heretofore apparent.Castano, 84 F.3d at 741.3. Since Plaintiffs' attorneys are beginning to rec-ognize the inherent difficulties presented throughvarying laws of respective states, one argumentthat has been forwarded is that proper categoriza-tion of sub-classes will resolves any problems oflegal variance. However, several federal courtshave found that such a device does not alleviatethe problems presented by the legal variance;instead, these courts have had their concernsheightened. As one court put it, Plaintiffs' briefssuggest that a number of additional subclasseswill be needed to accommodate this litigation...Itl hat subclasses against each defendant can becreated to deal with differences. ... The specter oJ"even more subclasses adds to tie courts: con-cerns withi management of this litigation. 175F.R.D. at 217 (emphasis added). Put another way,subclasses may miask over, but cannot solve theproblem of legal variation. Joel S. Feldman,Class Certification Issues for Non-Federal Ques-tion Class Actions B Defense Perspective, 612PLI/Lit4l, 81 (1999).4. The Third Circuit had refused to adopt a lessstringent standard for a class certification for set-

tlemeit purpose only. Geogine it Amchem Pvd-ucts. Inc., 83 F.3d at 610. Instead, the Third Cir-cuit had focused on the requirements of adequa-cy and typicality and, additionally, of predomi-nance and superiority. Id. The Third Circuit held,inter alia, that adequacy of representation andtypicality in this case were not met because theproposed settlement would eliminate futureclaims of future victims, and there was a conflictwhich was irreconcilable between the futureclaimants and those claiming present injury. Id. at618. The Circuit also held that individual issueswould predominate long term mass torts arisingout of multiple incidents such as asbestos litiga-tion, Id. at 628, and that a class action was notsuperior to other forms of action because therewould be too many individual issues I. at 632.5 No attempt has been made to cover the separatetopic of mass tort litigation in Mississippi courtsunless it takes the forn of a class action.6. However, when examined in relative compari-son with Mississippi case law, discussions on theclass action device are not extremely common.Of interest, between the years of 1846 and 1999,only approximately 44 Mississippi cases evenmention the terminology class action. Of those44, over one-half of the cases were merely refer-ring to class actions devices implemented injuris-dictions outside Mississippi. Of the remainingfew cases pertaining to class actions, many ofthem merely acknowledged the term withoutexplanation. Therefore, it can be said with confi-dence that a dearth of case law exists on this sub-ject.7. From a plaintiff's perspective, an attorney mayquestion the Court's reasoning in this case, andother cases of nominal recovery and beg thequestion: how can there be an adequate remedy alaw if the cost to proceed exceeds the amount thatcan be recovered?8. The fact that the class action device is not gen-erally available in Mississippi does not signifythat the device is completely unavailable as apractice. Indeed, the device may be proper innon-general circumstances.9. However, the Court did not address directly theissue of whether the class action device may stillbe a viable option in Chancery Court.

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2000-2001President-Elect Nominees

Ballots will be mailed in January, 2001.Any member of the Bar not nominated by the Noninating CAmmittee as President-Elect who lives in the appropriateSupreme CAurt District of the Bar, may be nominated by petition filed with the E&ecutive Director of the Bar signed

by not less than twenty-five (25) members of the Bar in goaxi standing. Such petition ,nust be fled on or beforeNoteinber 15 and shall be certified to the Commissioners by the Executive Director.

Donald C. Dornan, Jr.Biloxi

Donald C. Doman, Jr is a sole practitioner in Biloxi, Mississippi.Don graduated from Mississippi State with a Bachelor of Arts in Polit-ical Science in 1974. He received his law degree from tie Universityof Mississippi in December of 1976. While in law school, Don was amember of Phi Delta Phi and the Moot Court Board.

Don has served as President of the Harrison County BarAssociationand President of the Russell-Blass-Walker Chapter of the AmericanInns of Court. He is a Fellow of the Mississippi Bar Foundation andwas inducted into the American Board of Trial Advocates in 1998. Heis also a member of the Bar Association of the Fifth Federal Circuit,the Association of Trial Lawyers of America, Mississippi TrialLawyers Association, Gulf Coast Law Institute, American ArbitrationAssociation, and the Society of Professionals in Dispute Resolution.

Don has previously served on the Board of Bar Commissionersfrom 1996-1999. He has also served on various Bar committeesincluding two terms on the Ethics Committee, the Committee on Pro-fessional Responsibility and the Resolution of Fee Dispute Commit-tee. He recently served as Chairman of the Solo and Small Firm Prac-titioners Committee.

Don's practice has been devoted to civil litigation, arbitration andmediation. He is certified as a Civil Trial Advocate by the NationalBoard of Trial Advocacy. He has also served on the Board of Gover-nors of the Mississippi Trial Lawyers Association and as ATLA StateDelegate. He has also served on the Mississippi Supreme Court Advi-sory Committee on Rules and the Civil Rules Advisory Committee forthe U.S. District Courts for the Northern and Southern Districts ofMississippi. Over the years, Don has spoken frequently at seminars ontopics including ethics, insurance coverage, trial advocacy and jurorattitudes.

Don is a member of Trinity United Methodist Church in Gulfport,Mississippi. He is also on the Executive Board of the Boys and GirlsClubs of the Gulf Coast. In 1989, he received an award as the Boysand Girls Clubs Volunteer Member of the Year. Don has two children,Diana, a second year law student at Ole Miss, and Patrick, a Junior atMississippi State. N

Joseph H. MontgomeryPoplarville

Joe H. Montgomery has practiced in Poplarville with the firm ofWilliams, Williams & Montgomery, P.A. since 1967. He is a graduateof Lumberton High School and the University of Mississippi - B.A.1963, J.D. 1966. Military service was in the U.S. Coast Guard Reservefrom 1966 to 1972. Joe was Municipal Judge and City Attorney inLumberton. He represented the Lumberton Public School District formore than twenty years.

Joe was a member of The Mississippi Bar Ethics Committee from1992 to 1995, serving as vice chair and chair. A member since 1992,he was also a trustee of the Mississippi Bar Foundation -from 1996 to1999. He is currently vice chair of the Mississippi Commission onContinuing Legal Education, having been a member since 1994. Otherrecent committee assignments include local bar leadership (chair1992-1993), and Solicitation Ad Hoc (chair 1996-1997).

Joe's focus has always been civil litigation of all types, but his prin-cipal practice has been jury trials in personal injury cases, represent-ing plaintiffs in state and federal courts in South Mississippi andLouisiana. He is a fellow of the American College of Trial Lawyers.Joe has always been very active in local bar associations in his areahaving held all offices in the Pearl River County Bar Association. Heis currently Treasurer of the South Central Mississippi Bar Associa-tion. He has sponsored and presented at seminars.

Voluntary professional memberships also include the American BarAssociation, the Mississippi Trial Lawyers Association, the AmericanTrial Lawyers Association, and the Bar Association of the Fifth Fed-eral Circuit. He has been on the Board of Governors for MTLA formore than 10 years.

Civic activities include scouting and Rotary International. Joe is amember and lector at Sacred Heart Church in Hattiesburg, and isactive in the St. Vincent DePaul Society there.

Joe is married to former Jane Windells. They have two children,John, a resident in Psychiatry at Parkland Hospital in Dallas, and Beth,a pharmacy student at Auburn. Joe and Jane are very proud of their 10-month old twin granddaughters. U


Disbarments: of his fee arrangements with his client CPR in Docket Number 99-218-1 onwhich would satisfy the requirements of July 19, 2000 for violating the provi-

None to be reported. the above cited rules of professional con- sions of Rules 5.3 and 8.1(b), MRPC.duct. The Tribunal noted that the attor- The attorney was assessed with costs in

Suspensions: ney's failure constituted bad office pro- the amount of $36.69.None to be reported. cedure. In November, 1998, the attorney was

hired to defend a client against a drugPublic Reprimands: In an unrelated matter, an attorney charge. He was paid an initial retainer of

was issued a Private Reprimand by the $2,500.00 and later paid anotherG. Garland Lyell, III of Jackson, Bar's Committee on Professional Respon- $2,000.00. In addition, tile attorney was

Mississippi was issued a Public Repri- sibility (CPR) on July 19, 2000 in Dock- retained to defend the client againstmand by the Bar's Committee on Pro- et Number 99-205-1 for violating Rules murder and aggravated assault charges.fessional Responsibility on June 16, 1.4 and 8.1(b), MRPC. The attorney was The attorney was terminated in Septem-2000 in Docket No. 99-172-1 for violat- assessed with the Bar's costs of investi- ber, 1999 for failing to provide the con-ing the provisions of Rules 1.2, 1.3, 1.4, gation in the amount of $46.61. tracted for services. After being termi-1. 15 (b), and 8.4 (a and d) of the Missis- In this case, the attorney represented a nated, the attorney refused to refund thesippi Rules of Professional Conduct client at a criminal trial. The client was unearned attorney's fees.(MRPC). convicted and sentenced to serve twenty

In this case, Mr. Lyell was hired in (20) years. The attorney failed to file a Petitions for ReinstatementSeptember, 1998 to represent a minor notice of appeal. However, the CPR waswho was iniured on December 3, 1997 of the oninion that the client did notwhile attending elementary school inRaymond, Mississippi. After agreeing torepresent the minor and his mother, Mr.Lyell became inaccessible and failed toreturn numerous telephone calls. Never-theless, on March 5, 1999, Mr. Lyellfiled suit on behalf of his clients. Hisclients still had problems communicat-ing with Mr. Lyell and on July 6, 1999,the attorney-client relationship was ter-minated by the clients. Subsequently,the clients hired new counsel who dis-covered that process had not beenserved on the defendants. In addition,Mr. Lyell failed to deliver his clients fileto the new counsel which resulted innew counsel having to tile a Motion toCompel to get the file.

Mr. Lyell was assessed with costs andexpenses of $78.36.

Private ReprimandsAn attorney was issued a Private Repri-

mand in Cause Number 1998-B-1803 forviolating the provisions of Rules 1.5(b),1.7(b) (2), and 1.8 (a), Mississippi Rulesof Professional Conduct, by Opinion andJudgment issued by a MississippiSupreme Court appointed ComplaintTribunal. He was assessed with costs andexpenses of $461.66.

In this case, the attorney took propertyas part of his fee with the propertyinvolved constituting part of the subjectmatter of the representation. The attor-ney failed to produce a written contract

clearly manifest an intent to appeal butthe attorney did not properly documenthis file concerning whether the clientwanted to appeal his conviction. TheCommittee suggests that all similarlysituated attorneys clearly documenttheir file concerning their client's wish-es and such documentation should be inwriting. Compounding the attorney'slack of documentation was the fact thatthe attorney did not respond to the infor-mal complaint that had been filedagainst him nor did he attend the inves-tigatory hearing that was held.

In another unrelated matter, an attor-ney was issued a Private Reprimand bythe Bar's CPR on June 30, 2000 inCause Number 99-212-1 for violatingRules 1.2, 1.3, and 1.4, MRPC. In addi-tion, the attorney was assessed withcosts in the amount of $35.36.

In this case, the attorney was hired torepresent a client concerning the client'sinterest in certain property. The attorneywas paid $2,500.00 as his fee. Subse-quently, the attorney became inaccessi-ble and failed to communicate with theclient or work on the client's case for asignificant period of time. The attorneyadmitted that progress on the case wasslow and that lie should have comluni-cated with his client on a more timelybasis.

In another situation, an attorney wasissued a Private Reprimand by the Bar's

has been conditionally reinstated to thepractice of law and membership in TheMississippi Bar by Order of the Missis-sippi Supreme Court entered on July 27,2000 in Cause Number 1999-BR-1591.The condition of Mr. Parsons' reinstate-ment is that he must take and pass theMississippi Bar Examination.

Mr. Parsons had been disbarred byOrder of the Mississippi Supreme Courtfiled on June 13, 1996. Mr. Parsons' hadpreviously pled guilty to the crime ofconspiracy to commit money launderingin the U.S. District Court in violation ofSection 371, Title 18, United StatesCode.

Azki Shah of Clarksdale, Mississippihas been reinstated to the practice of lawand membership in The Mississippi Barby Order of the Mississippi SupremeCourt filed on July 20, 2000 in CauseNumber 2000BR-218.

Mr. Shah was suspended from thepractice of law for six (6) months byOrder of the Mississippi Supreme Courtentered on July 29, 1999 in CauseNumber 1998-BD-01789-SCT basedupon the United States' BankruptcyCourt's issuance of an injunction pro-hibiting Mr. Shah from practicing inthe Bankruptcy Court until October I,2000.

Informal AdmonitionsNone to be reported. U


-JJ BThe Mississippi Bar

Young Lawyers DivisionCommittee & Programs Preference FormYes, I would like to serve on a Young Lawyers Division Committee

and/or Law-Related Education Activity in 2000-2001.

(Please mark your committee preference with a 1, 2, 3 if you have not previously signed up.)

_ Bar Admissions CeremonyThis committee's primary responsibility will be tocontact Judges and Dean for their participation ineach ceremony and attend the fall and springceremonies

_ Child AdvocacyThis committee's primary responsibility will be todesign a school curriculum focusing on theconsequences of misconduct on school property

_ Disaster Legal AssistanceThis committee will coordinate an instructionalbooklet for the YLD County Coordinators in caseof a natural disaster

Law School RelationsThis committee's primary responsibility will be toimplement a 3rd year Professionalism program atthe University of Mississippi Law School andMississippi College School of Law

_ PublicationsWill be divided into 3 sub-committees and theprimary responsibility of each will be to organize,draft and market the 2001 YLD Calendarpublication and to publish and market a PracticeManual for all members

Website ContentThis committee's primary responsibility will be togather the content for the YLD Web Page

SeminarsThis committee's primary responsibility will be toplan and implement the YLD live video conferenceseminar and secure sponsors for each location.Begin planning seminar which will be gearedtoward recent law school graduates

(I would like to participate in all of the LRE activities that I check below.)A Lawyer in Every Mississippi Classroom

Fall, 2000This program is being moved from LawWeek in May to the Fall to assist theschools' requests for a better time ofschool year

Name of school

City

Name

Address.

A Lawyer in Every Mississippi ClassroomRegional Competitions

(locations to be determined)Saturday, February 3, 2001Saturday, February 10, 2001

_ Statewide Competition, JacksonSaturday, February 24, 2001

Phone

FAX.

Email

Return to: The Mississippi Bar Young Lawyers DivisionP.O. Box 2168, Jackson, MS 39225 or FAX to 601-355-8635


Young Lawyers Division News

Tim ThreadgillYoung Lawtiyers DivisionPresident 2000-2001

The YLD: Not Just"a Jackson Thing"

"Let ine know if I can help you thisyear I would love to get involved inthe Young Lawyers Division, but I'mnot from Jackson and Jacksonlawyers rtn the YLD."

This is a quote I have heard at leasta couple of times over the last fewmonths. As a young lawyer who prac-ticed law in North Mississippi forover eight years, there may have evenbeen a time this thought crossed mymind. It is not, however, accurate, andone of my missions as YLD Presidentthis year is to eradicate this erroneousperception and encourage statewideparticipation in the YLD.

The YLD's recent history exposesthe fallacy of the suggestion thatJackson lawyers "run the YLD."Since my admission to the bar in1991, the YLD's presidents havehailed from Tupelo, Hattiesburg,Oxford, Gulfport, Grenada and Vicks-burg, as well as Jackson. One of thesenon-Jackson past presidents has evenbeen honored with the "OutstandingYoung Lawyer" award. Historymakes it abundantly clear that theYLD is not exclusively "a Jacksonthing."

What Does this Mean for Me?This begs the question, "what is the

point'?" Simple. Like any successfulorganization, the YLD requires theactive and substantive participation ofits membership to succeed. Morespecifically, it needs the active partic-ipation of young lawyers from acrossthe entire state.

The YLD of The Mississippi Barenjoys a rich reputation. From thevantage point of the American BarAssociation, our YLD is highly visi-ble. We currently enjoy seven votes atall meetings of the ABA's YLD, morethan our neighboring states, all ofwhom have more "young lawyers"than Mississippi.

All areas of the state arerepresented by a director who

attends quarterly meetings withhis or her fellow board members,

and each is well positioned tovocalize issues of concern shared

by members of their district orthe state at large.

In addition, we are blessed with acommitted and strong board of direc-tors and officers. All areas of the stateare represented by a director whoattends quarterly meetings with his orher fellow board members, and eachis well positioned to vocalize issuesof concern shared by members oftheir district or the state at large.

The identities of those who willcomprise the YLD's future leader-ship, however, are unknown, andtherein lies the opportunity. There aremany ways in which you can play arole in the YLD, but most of thoseroles begin at the committee memberlevel, just as it did for each of the pastpresidents to whom I referred above.

What Can I Do?This year, the YLD has twelve

functioning committees. With a cou-ple of exceptions, there is room on allof these committees for you, regard-less of your hometown or your pastinvolvement with the YLD.

Some of the committees are well-established, such as the Bar Admis-sions Committee, which oversees thefall and spring ceremonies for all newadmittees to The Mississippi Bar, andthe Mock Trial Committee, whichorganizes and operates the regionaland statewide high school mock trialcompetitions. Others are in theirinfant and toddler stages, and arepoised to establish the next Missis-sippi YLD tradition.

Included in this latter group is theLaw School Relations Committee,which aspires to sponsor a profession-alism program at the Ole Miss andMississippi College law schools forthird year law students next spring.Under Mississippi Bar past presidentJimmy Dukes' leadership, the "bigBar" began sponsorship of such a pro-gram for incoming first-year law stu-dents. The professionalism programshave been uniformly lauded by judgesand lawyers, and it was suggested bymany of the students who participatedthat the program be repeated duringtheir third year of school.

On the page facing this article isyour opportunity to get involved inthe activities of the YLD. Simply tearout the page, sign up for a committee,and send it to the Mississippi BarCenter's address (or facsimile num-ber) listed on the form.

You will not regret it. You willdevelop personal and professionalfriendships across the state, and youwill have done your part in helpingthe YLD accomplish its worthy pur-poses. In addition, if you are not fromJackson, you will learn first-hand thatJackson lawyers do not "run theYLD." You will see that it is, instead,led by an outstanding group of younglawyers from throughout Mississippiwho desire to actively participate inthe betterment of our venerable pro-fession. E


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ABOfficers 2000-2001

Richard 1. Bennett W.U. (Cham) irotter, 111President President-Elect

P.O. Box 98 0 Jackson, MS 39205 P.O. Box 338 * Belzoni, MS 39038Telephone: 601-944-0466 * Fax: 601-944-0467 Telephone: 601-247-1362 * Fax: 601-247-3333

Samuel C. Kelly James 0. DukesSecond Vice-President lmrnediate Past President

P.O. Drawer 1079 @ Jackson, MS 39215 P.O. Box 10 * G.Ifpon, MS 39502Telephone: 601-969-4140 * Fax: 601-353-0185 Telephone: 228-863-6101 a Fax: 228-868-9077

Mission Statement:The Mississippi Bar shall serve the public good by promoting excellence

in the profession and in our system of justice.


APBBoard of Bar Corn

1st Circuit Court DistrictJohn A. FerrellN)Roneville, MS

7th Circuit Court DistrictF Hall BaileyJackson, MS

2nd Circuit Court DistrictWilliam L. "Bill" Mdcl[omnoih, Jr.

Gulporn, MS

7th Circuit Court DistrictLynn P. RisleyJackson, MS

2nd Circuit Court DistrictKaren J. YoungGilqfot, MS

8th Circuit Court DistrictMorris C. Phillips, Jr.

Carthage, MS

3rd Circuit Court DistrictRodney r. ShLandsNew Albany, MS

9th Circuit Court DistrictRobert R. Bailess

Vicksbuirg, MS

4th Circuit Court DistrictCharles J. Sway:e, Jr.

Greenwood, MS

10th Circuit Court DistrictJohn R. Gunn

Waynesboro, MS

16th Circuit Court DistrictRonald L. Roberls

CohinLlbis, MS

17th Circuit Court DistrictTaylor D. Butuin, IIl

Southaven, MS

18th Circuit Court DistrictThomas Tucker Buchanan

l.aurel, MS

19th Circuit Court DistrictGary L. RobertsPascagoula, MS


JIB;sioners 2000.2001

5th Circuit Court DistrictF Keith Ball

Louisville, MS

I Ith Circuit Court DistrictII. I hmer Twio rd, III

Clarksdakle, MS

6th Circuit Court DistrictDavid N. Wilkerson

Wooldville, M4S

12th Circuit Court DistrictAlison R. SteinerI lat I iesburg, MS

7th Circuit Court DistrictC. York Craig, Jr.

Jackson, MS

I 3th Circuit Court DistrictJ. David Shotmake

Collins, MS

7th Circuit Court DistrictDorian E. Turner

Jackson, MS

14th Circuit Court DistrictMark I. lamptonTylertown, MS

7th Circuit Court DistrictMargaret I legman Williams

Jackson, MS

15th Circuit Court DistrictColette A. Oldinixon

Poplarville, MS

20th Circuit Court DistrictJohn W. ChaluaBrandon , MS

21 th Circuit Court DistrictSally Barrett Williamson

lex ington, MS

22nd Circuit Court DistrictJeffrey A. VarasI la:lehurst, MS

Minority-At-LargeLisa M. RossJackson, MS


eioBSection Chairs 2000o,200 1

Administrative Law &Workers' Compensation

G. Davis Peterson805 South WheatleySuite 400P.O. Box 13669Jackson, MS 39236-3669Phone: 601-956-8500Fax: 601-956-8423

Gaming LawDan M. McDaniel200 South Lamar StreetSuite 500P.O. Box 23066Jackson, MS 39225-3066Phone: 601-352-2300Fax: 601-360-9777

LItigation/GeneralPractice

Senith C. TiptonP.O. Box 13429Jackson, MS 39236-3429Phone: 601-366-4343Fax: 601-981-7608

40 October, 2000

Alternative DisputeResolution

Harold D. Miller, Jr.210 East Capitol StreetP.O. Box 22567Jackson, MS 39225-2567Phone: 601-948-5711Fax: 601-949-4555

Government LawJohn R. Gunn718 Wayne St.P.O. Box 1154Waynesboro, MS 39367Phone: 601-735-3440Fax: 601-735-4141

Natural Resources, Energy& Environmental Law

Trudy Fisher248 East Capitol StreetSuite 1400P.O. Drawer 119Jackson, MS 39205-0119Phone: 601-948-3 1OfFax: 601-960-6902

Business LawJames H. Neeld, IVI ll East Capitol Street5th FloorP.O. Box 23033Jackson, MS 39225-3033Phone: 601-914-8007Fax: 601-914-8282

Health LawHelen Wetherbee2525 Lakewood DriveSuite 200Jackson, MS 39216Phone: 601-713-1192Fax: 601-713-2049

11Prosecutors

Richard D. Mitchellpo. Box 68Brandon, MS 39043Phone: 601-825-1472Fax: 601-825-9605

Estates & TrustsDavid R. Marchetti317 East Capitol StreetSuite 600P.O. Box 131Jackson, MS 39205-0131Phone: 601-355-8321Fax: 601-355-4217

Intellectual PropertyStephan Land McDavid428 North LamarP.O. Box 1113Oxford, MS 38655Phone: 662-281-8300Fax: 662-281-8353

Real PropertyJohn Sanford McDavid248 East Capitol StreetSuite 840Jackson, MS 39201Phone: 601-948-3305Fax: 601-354-4789

Family LawMark A. Chinn4316 Old Canton RoadSuite 200P.O. Box 13483Jackson, MS 39236-3483Phone: 601-366-4410Fax: 601-366-4010

Labor &Employment Law

Barbara C. Wallace400 East Capital StreetSuite 600P.O. Box 651Jackson, MS 39205-0651Phone: 601-968-5500Fax: 601-968-5519

'laxationRobert E. Box, Jr.633 North State StreetP.O. Box 427Jackson, MS 39205-427Phone: 601-949-4900Fax: 601-949-48)4


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LAW FIRM SERVICES DIVISION

George S. Smith, CPA, CVARalph G. Ross, CPA, CVA

200 East Capitol, Jackson, MississippiTelephone 601.948.6700

Jon C. Turner, CPAJennifer R. Brooks, CPA

www.str-cpa.cotn 141:

Betty Lou Reeves, CPAAmy D. Byars, CPA

2 Jackson Avenue East, Oxford, MississippiTelephone 662.236.1711

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Committee ChairsBudget and FinanceRonald L. RobertsP.O. Box 1366 e Columbus, MS 39703662-328-2316

BylawsJeffrey A. VarasP.O. Box 866 Hazelhurst, MS 39083601-894-4088

Clients' Security FundJan F. GadowP.O. Box 1163 e Jackson, MS 39215601-991-2999

Court Liaison and Judicial AdministrationRobert L. GibbsP.O. Drawer 119 * Jackson, MS 39205601-948-3101

Delivery of Legal ServicesBen J. Piazza, Jr.P.O. Box 427 Jackson, MS 39205601-949-4796

ElectionsRobert A. Biggs, I1lP.O. Box 865 * Jackson, MS 3

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