        



                United States Court of Appeals
                                  For the First Circuit
                                     _____________________

No. 17-8009

  MICHELLE CARTER; JONATHAN CESSNA; ALICIA GENTILE; SONIA HERRERA;
   JENNY MARAZZI; MEGAN PETERSON; SVEN P. VOGTLAND; DAVID WALLS;
  KRISTINA PEARSON; ERIC TERRELL; ELIZABETH POYNTER; ERIC CAPDEVILLE

                                      Plaintiffs, Respondents,

      MICHAEL FEUER; MARTIN HOMMEL; KAMI RALEIGH; BRIDGET BECNEL
      DELIVORIAS; KAREN FINNEY; AMANI EL-JANDALI; MARVIN CATALAN,

                                              Plaintiffs,

                                                  v.

    THE DIAL CORPORATION, a/k/a, Dial Corporation, a/k/a, The Dial Corporation, Inc.,

                                       Defendant, Petitioner,

                              HENKEL CONSUMER GOODS, INC.,

                                            Defendant.
                                       __________________

                                               Before

                                Torruella, Thompson, and Kayatta,
                                          Circuit Judges.
                                      __________________

                                           JUDGMENT
                                       Entered: July 31, 2017

         Pursuant to Fed. R. Civ. P. 23(f), the defendant-petitioner seeks leave from this court to
appeal the district court's grant of class certification in the underlying multidistrict litigation. As
an initial matter, the defendant-petitioner's motion for leave to file a reply is granted. The tendered
reply is accepted for filing and has been considered by the court. Having carefully considered the
parties' filings and relevant portions of the record, we conclude that the requirements for
interlocutory review have not been met here. See Waste Mgmt. Holdings, Inc. v. Mowbray, 208
F.3d 288, 293-94 (1st Cir. 2000) (setting out factors to be considered when deciding whether to
allow review pursuant to Rule 23(f)). Specifically, we conclude that the defendant-petitioner has


        
        


failed to demonstrate that the district court's Rule 23 analysis is sufficiently "questionable" to
warrant immediate review. Id. at 293. Accordingly, the petition for leave to appeal is denied.

        KAYATTA, Circuit Judge, dissenting from denial of petition for permission to
appeal. Two years ago, a divided panel of this court proposed sua sponte that plaintiffs could use
consumer affidavits to establish injury at the liability stage of a Rule 23(b)(3) class action. See In
re Nexium Antitrust Litig., 777 F.3d 9, 20 (1st Cir. 2015). On the basis of this judicially crafted
mechanism for separating injured class members from uninjured ones, the Nexium majority upheld
the certification of a class that potentially included tens of thousands of uninjured persons. See id.
at 32. For a variety of reasons, the Nexium majority's proposal struck me as a bad idea. In
particular, allowing plaintiffs to carry their burdens of proof on the question of injury by filing
hundreds of thousands of affidavits meant either that the defendant would have no practical ability
to challenge the affidavits, or that the class action would become unmanageable. See id. at 33–35
(Kayatta, J., dissenting).

         The affidavit proposal was never implemented in Nexium, as the case was tried by a jury
before the panel perhaps unnecessarily issued its opinion. Here, however, in a consumer class
action challenging representations made by the defendant as to the antibacterial properties of its
soap, the district court has ruled that the fact that a particular person has even bought the soap can
be established through the submission of an affidavit so stating. See In re Dial Complete Mktg. &
Sales Practices Litig., 312 F.R.D. 36, 52 (D.N.H. 2015). In a case involving an individual
consumer, the defendant could easily challenge such a claim, and a jury would decide whether the
individual claimant was being truthful. I have trouble seeing how the same can be accomplished
in this case, which, like Nexium, involves potentially hundreds of thousands of claimants. Absent
any explanation from the district court as to how it will resolve that mystery in a manner that is
not only "consistent with defendants' Seventh Amendment and due process rights," see Nexium,
777 F.3d at 14 (majority opinion), but also manageable within the meaning of Rule 23(b)(3), see
Fed. R. Civ. P. 23(b)(3)(D), I believe that class certification was at best premature.

        Sooner or later, this court will have to wrestle with the issues raised by the district court's
approach, which follows the approach established sua sponte by the majority in Nexium
Otherwise, the casual reliance on "say-so" affidavits without any analysis of whether and how the
assertions in such affidavits might be reasonably challenged will eventually eliminate the
requirements of Rule 23(b)(3) and turn courts into claims administrators who pay no heed to the
guarantees of the Seventh Amendment. Because the instant case provides us with the opportunity
to weigh in with some modicum of rigor before any further mischief can result, I respectfully
dissent from the denial of the petition for interlocutory review under Federal Rule of Civil
Procedure 23(f).


                                                          By the Court:
                                                          /s/ Margaret Carter, Clerk


cc:
Hon. Steven J. McAuliffe
Daniel Lynch, Clerk, United States District Court for the District of New Hampshire

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Lucy J. Karl
Adam J. Levitt
Eric D. Holland
Randall Seth Crompton
Charles E. Schaffer
David C. Rash
Steven Stolze
Jayne A. Goldstein
James C. Shah
Mark J. Geragos
Edward K. O'Brien
Douglas P. Dehler
Richard J. Arsenault
Salvadore Christina Jr.
Joseph J. Siprut
Miriam Leigh Schimmel
Reginald Von Terrell
Sean T. Keith
Robert Harrex Miller
Paul D Clement
Jeffrey Matthew Harris
Eugene F. Assaf Jr.
Edwin John U
Matthew Rowen
John C. Theisen
Tracie Lynn Bryant




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