Countrywide Home Loans, Inc., 319 F.3d 732 (5th Cir.
American Tobacco Co., 522 F.3d 215 (2d Cir. Ix TABLE OF AUTHORITIES-Continued Page(s) McLaughlin v. 29, 30 In re Urethane Antitrust Litig., 768 F.3d 1245 (10th Cir. 10 In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244 (D.C. 23, 24 In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 13 In re Fibreboard Corp., 893 F.2d 706 (5th Cir. 13 In re Deepwater Horizon, 739 F.3d 790 (5th Cir. DirectSat USA, LLC, 705 F.3d 770 (7th Cir. Viii TABLE OF AUTHORITIES-Continued Page(s) Espenscheid v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. Vii TABLE OF AUTHORITIES Page(s) CASES: Allison v. 66a APPENDIX F-Statute and Rule Involved. 65a APPENDIX E-Court of Appeals’ Order Denying Panel Rehearing And Rehearing En Banc (Dec. 60a APPENDIX D-Court of Appeals’ Order Staying Mandate (Dec. 22a APPENDIX C-District Court’s Opinion and Order Denying Motion For Leave To File Motion For Reconsideration (May 4, 2012). 1a APPENDIX B-District Court’s Opinion and Order Denying In Part Plaintiffs’ Motion To Strike Denying Plaintiffs’ Motion To Certify Class (Jan. 32 APPENDICES APPENDIX A-Court of Appeals’ Opinion (Sept. The Ninth Circuit’s Embrace Of “Trial By Formula” Conflicts With The Decisions Of This Court. The Courts Of Appeals Are Divided On The Propriety Of Averages-Based Class Damages Models. THIS COURT SHOULD GRANT REVIEW TO DECIDE WHETHER PLAINTIFFS MAY USE FORMULAS BASED ON THE AVERAGE CLASS MEMBER’S EXPERIENCE AS COMMON PROOF OF DAMAGES. The Ninth Circuit’s Decision Is Contrary To Supreme Court Precedent.
This Important And Recurring Question Has Divided The Circuits. THIS COURT SHOULD GRANT REVIEW TO DECIDE WHETHER INDIVIDUAL DAMAGE CALCULATIONS ALONE CAN OVERWHELM QUESTIONS COMMON TO THE CLASS. i PARTIES TO THE PROCEEDINGS.ii RULE 29.6 DISCLOSURE STATEMENT. TABLE OF CONTENTS Page QUESTIONS PRESENTED. No other company owns 10% or more of Google’s stock. is a wholly owned subsidiary of Alphabet Inc., a publicly traded company. Iii RULE 29.6 DISCLOSURE STATEMENT Google Inc. and Richard Oesterling, respondents on review, were plaintiffs-appellants below. Pulaski & Middleman, LLC JIT Packaging, Inc. Google Inc., petitioner on review, was defendant-appellee below. Whether plaintiffs may use a formula that relies on a uniform measure of harm derived from the average experience of all class members as common proof of damages. Whether individual damage calculations alone can overwhelm questions common to the class, precluding certification under Rule 23(b)(3).
This case presents two questions about these requirements. In addition, class certification “shall not abridge, enlarge or modify any substantive right” under the Rules Enabling Act. The third subpart of Rule 23(b) is at issue here, and it allows certification only if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. QUESTIONS PRESENTED A class action may be certified only if the four prerequisites of Federal Rule of Civil Procedure 23(a) are satisfied (numerosity, commonality, typicality, and fair-and-adequate representation), and the class action falls within one of Rule 23(b)’s defined types. NEAL KUMAR KATYAL Counsel of Record MARY HELEN WIMBERLY FREDERICK LIU HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637-5600 WONG COOLEY LLP 101 California Street 5th Floor San Francisco, CA 94111 _ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit _ PETITION FOR A WRIT OF CERTIORARI _ MICHAEL G. PULASKI & MIDDLEMAN, LLC, et al., Respondents.
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