Thorn v. Jefferson-Pilot Life Insurance ( 2006 )

CORRECTED OPINION
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROSE BELLE THORN; ROSA M. THORN, 
Individually and as Personal
Representatives of the Estate of
Leroy Thorn, Deceased; ROBERT
PUGH; EVELYN D. PUGH, on behalf of
themselves and on behalf of all
others similarly situated,
Plaintiffs-Appellants,
v.  No. 05-1162
JEFFERSON-PILOT LIFE INSURANCE
COMPANY, as successor of Pilot Life
Insurance Company,
Defendant-Appellee.
AMERICAN COUNCIL OF LIFE INSURERS,
Amicus Supporting Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(CA-00-2782)
Argued: September 19, 2005
Decided: February 15, 2006
Corrected Opinion Filed: March 9, 2006
Before WILLIAMS and MICHAEL, Circuit Judges, and
James C. DEVER III, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
2 THORN v. JEFFERSON-PILOT LIFE INS.
Affirmed and remanded by published opinion. Judge Williams wrote
the majority opinion, in which Judge Dever concurred. Judge Michael
wrote a separate dissenting opinion.
COUNSEL
ARGUED: Sanford Svetcov, LERACH, COUGHLIN, STOIA, GEL-
LER, RUDMAN & ROBBINS, L.L.P., San Francisco, California, for
Appellants. James F. Jorden, JORDEN BURT, L.L.P., Washington,
D.C., for Appellee. ON BRIEF: Andrew S. Friedman, Wendy J. Har-
rison, BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.,
Phoenix, Arizona; William M. Audet, Michael McShane, ALEXAN-
DER, HAWES & AUDET, L.L.P., San Francisco, California; W.
Christian Hoyer, Christa L. Collins, JAMES, HOYER, NEWCOMER
& SMILJANICH, P.A., Tampa, Florida; John J. Stoia, Jr., Alreen
Haeggquist, LERACH, COUGHLIN, STOIA, GELLER, RUDMAN
& ROBBINS, L.L.P., San Francisco, California; Charles Mathis,
MATHIS, ADAMS & TATE, P.C., Atlanta, Georgia; Barry A.
Weprin, Brad N. Friedman, MILBERG, WEISS, BERSHAD &
SCHULMAN, L.L.P., New York, New York; Christopher A. Seeger,
David R. Buchanan, SEEGER, WEISS, L.L.P., New York, New
York; Herman Watson, Jr., Rebekah Keith McKinney, WATSON,
JIMMERSON, GIVHAN, MARTIN & MCKINNEY, P.C., Hunts-
ville, Alabama; T. English McCutchen, William E. Hopkins, Jr.,
MCCUTCHEN, BLANTON, JOHNSON & BARNETTE, L.L.P.,
Columbia, South Carolina; Ronald R. Parry, David Futscher,
PARRY, DEERING, FUTSCHER & SPARKS, P.S.C., Covington,
Kentucky; J. P. Strom, Jr., Mario A. Pacella, STROM & YOUNG,
L.L.C., Columbia, South Carolina; Joe R. Whatley, WHATLEY,
DRAKE, L.L.C., Birmingham, Alabama, for Appellants. Brent O. E.
Clinkscale, Jacquelyn D. Austin, WOMBLE, CARLYLE, SAN-
DRIDGE & RICE, P.L.L.C., Greenville, South Carolina; Debbie W.
Harden, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Charlotte, North Carolina; Waldemar J. Pflepsen, Jr., Stephen H.
Goldberg, JORDEN BURT, L.L.P., Washington, D.C., for Appellee.
Victoria E. Fimea, AMERICAN COUNCIL OF LIFE INSURERS,
Washington, D.C.; Evan M. Tager, Craig W. Canetti, MAYER,
BROWN, ROWE & MAW, L.L.P., Washington, D.C., for Amicus
Supporting Appellee.
THORN v. JEFFERSON-PILOT LIFE INS. 3
OPINION
WILLIAMS, Circuit Judge:
The named plaintiffs (Appellants) in this case filed an individual
and class-action complaint against Jefferson-Pilot Life Insurance
Company on behalf of themselves and approximately 1.4 million
African-American policyholders. The complaint alleged that
Jefferson-Pilot’s corporate predecessors discriminated against the
class members in violation of federal law by charging them higher
premiums than whites for similar insurance policies. The district court
denied certification under Fed. R. Civ. P. 23(b)(3), finding that
because it could not resolve Jefferson-Pilot’s statute of limitations
defense on a class-wide basis, issues common to the class did not pre-
dominate over individual ones. The district court also denied certifica-
tion under Fed. R. Civ. P. 23(b)(2), finding that Appellants’ requested
remedy was merely a predicate for monetary damages. Appellants
moved for an immediate interlocutory appeal under Fed. R. Civ. P.
23(f) and 28 § U.S.C.A. 1292(e) (West Supp. 2005), which we
accepted under Fed. R. App. P. 5.
We hold that Appellants bear the burden of proving compliance
with Rule 23 and that the district court did not clearly err in finding
that Jefferson-Pilot’s statute of limitations defense did not present
common issues that could be resolved on a class-wide basis. We also
hold that the district court correctly held certification was improper
under Rule 23(b)(2) because Appellants’ requested relief was not pre-
dominantly injunctive or declaratory in nature. We therefore affirm
and remand for further proceedings on Appellants’ individual claims.
I.
The parties agree on most of the facts relevant to this appeal. From
1911 to 1973, Jefferson-Pilot Insurance Company’s corporate pre-
decessors (collectively Jefferson-Pilot) issued approximately 1.4 mil-
lion industrial life insurance policies1 to African-Americans in North
1
Industrial life insurance policies are low premium/low benefit insur-
ance policies, some with premiums as low as $0.05 weekly and benefits
as little as several hundred dollars. The benefits from these policies are
often used to cover funeral and burial expenses.
4 THORN v. JEFFERSON-PILOT LIFE INS.
Carolina, South Carolina, Georgia, and Virginia. Jefferson-Pilot
admits that it charged African-American policyholders higher premi-
ums than it charged white policyholders for policies with similar ben-
efits. Jefferson-Pilot contends, however, that its "dual-rate"2 policies
were not the product of racial animus. Instead, it argues that the price
difference was nothing more than a wise business decision based on
mortality tables showing that African-Americans had shorter life
expectancies and were thus higher life-insurance risks than similarly
situated whites.3
Jefferson-Pilot stopped issuing industrial life insurance policies
altogether in 1973, but continued to collect premiums on the dual-rate
policies that were still in effect at that time. In 1988, Jefferson-Pilot
adjusted the race-based premiums on all active policies according to
blended mortality tables, which were not based on race. Even after
this adjustment, however, African-American policyholders still paid
more than whites for similar benefits because whites’ premiums had
been determined according to mortality tables for whites only. In
2000, about the time the instant action was filed,4 Jefferson-Pilot
declared that all still-active industrial insurance policies, whether
owned by African-Americans or whites, were "paid up"; i.e., that no
further premiums would be charged on the policies. At that time, only
approximately 45,000 of the 1.4 million dual-rate policies issued to
African-Americans were still in effect.5
2
The term "dual-rate" refers to the practice identified in the text; i.e.,
the practice of charging African-Americans higher premiums than whites
for similar benefits. See In re Monumental Life Ins. Co., 365 F.3d 408,
412 (5th Cir. 2004), cert. denied sub nom. Am. Nat’l Ins. Co. v. Bratcher,
125 S.Ct. 277 (2004). A "dual-plan" practice, by contrast, describes an
insurance company’s practice of offering African-Americans only those
policies with lower benefits than whites. See id. In addition to their dual-
rate allegations, Appellants also alleged that Jefferson-Pilot engaged in
dual-plan practices. Because, however, they did not seek certification on
that issue, the dual-plan allegations are not relevant to this appeal.
3
We express no opinion on the merits of Jefferson-Pilot’s argument.
4
It is unclear from the record whether Jefferson-Pilot’s declaration
occurred before or after this suit was filed. This factual ambiguity is
immaterial to our resolution of this case.
5
It is undisputed that the remainder of the policies had either matured
due to the death of the policyholder or had been terminated for any num-
ber of reasons, such as non-payment.
THORN v. JEFFERSON-PILOT LIFE INS. 5
In September 2000, Appellants Rose Belle Thorn, Rosa M. Thorn,
Robert Pugh, and Evelyn D. Pugh — four African-Americans insured
under a Jefferson-Pilot industrial life insurance policy — filed a class-
action complaint against Jefferson-Pilot alleging that its dual-rate pol-
icies violated 42 U.S.C.A. §§ 1981 (West 2003) (granting equal rights
to "make and enforce contracts" without regard to race) and 1982
(West 2003) (granting equal rights to "inherit, purchase, lease, sell,
hold, and convey real and personal property" without regard to race).6
The complaint also alleged that Jefferson-Pilot took steps to conceal
these practices from its policyholders, such as instructing its agents
not to disclose the race-based premium disparities. The complaint
sought, inter alia, an injunction prohibiting Jefferson-Pilot from col-
lecting any future premiums on its dual-rate policies, restitution for
the difference in premium payments made by African-American and
white policyholders, punitive damages, and attorney’s fees. In its
answer, Jefferson-Pilot, inter alia, denied that it took steps to conceal
its dual-rate practices, denied that Appellants were entitled to relief,
and raised a statute of limitations defense.
In October 2003, Appellants moved under Fed. R. Civ. P. 23(b)(3)
and 23(b)(2) to certify a class of "all African-Americans who [were
insured by a race-based dual-rate] industrial life insurance policy that
was issued [by Jefferson-Pilot]." (J.A. at 284.)7 Jefferson-Pilot
opposed the motion. It argued, in pertinent part, that certification was
improper under Rule 23(b)(3) because individual members of the
class could have been exposed to sufficient information to give them
either actual or constructive knowledge of its dual-rate practices out-
side of the limitations period. In Jefferson-Pilot’s view, this fact
required the district court to conduct individual hearings for each
6
In addition, the complaint alleged that Jefferson-Pilot’s dual-rate poli-
cies violated state tort law. Because Appellants did not seek certification
on this claim, we do not consider it.
7
Appellants actually sought certification of a class of African-
Americans with an "ownership interest" in the dual-rate policies. (J.A. at
284.) The district court was concerned that this term could create con-
flicts by pitting two class members against one another for the same
funds, and narrowed the class request to include only those "insured"
under a dual-rate policy. (J.A. at 284.) Appellants do not appeal this deci-
sion.
6 THORN v. JEFFERSON-PILOT LIFE INS.
class member to determine when he or she learned of the dual-rate
practices, a requirement that defeated the benefits of class certifica-
tion. In support of this argument, Jefferson-Pilot submitted an expert
report from Henry M. McKiven, a professor in the History Depart-
ment at the University of South Alabama. In the report, Dr. McKiven
detailed the news media’s reports of race-based insurance practices
over the course of the twentieth century, noted the objections to the
practices raised in the African-American community, particularly by
African-American church leaders, through the middle part of the cen-
tury, and explained that a number of African-Americans formed their
own insurance companies early in the century in an effort to offer an
alternative to white-owned insurance companies’ race-based prac-
tices. Dr. McKiven claimed that "based on these numerous sources of
information, . . . an African American living in the Southeast could
have become aware" of insurance companies’ dual-rate practices.
(J.A. at 101.) Jefferson-Pilot also argued that certification was
improper under Rule 23(b)(2) because Appellants sought primarily
monetary relief.
Appellants argued that the district court could resolve Jefferson-
Pilot’s statute of limitations defense on a class-wide basis — i.e.,
without conducting individual hearings — because Jefferson-Pilot
had not shown that any class member had actual knowledge of its
dual-rate practices and because all of the class members would have
been exposed to the same information that could have given them
actual or constructive knowledge of the practices. In support of this
argument, Appellants submitted an expert report from Robert J. Nor-
rell, a professor in the history department at the University of Tennes-
see. Dr. Norrell claimed that although there had been some media
reporting of the issue during the twentieth century, "the public, or the
average citizen of the United States, including African-Americans,
was not generally aware of [these] practices." (J.A. at 70.) Appellants
also argued that certification was proper under Rule 23(b)(2) despite
the fact they sought monetary relief, because the relief they sought
was equitable, not legal, in nature.
In May 2004, the district court conducted an extensive hearing,
most of which was devoted to whether the class should be certified.
(J.A. at 126-275.) In December 2004, the district court denied the
motion to certify by a thorough, well-written opinion. The district
THORN v. JEFFERSON-PILOT LIFE INS. 7
court noted that "[t]he claims at issue in this action relate to policies
issued as early as 1911 and, at the latest, in 1973. The initial (and pos-
sibly only) actionable discrimination would, therefore, have occurred
no later than the date of issuance of the policy, in other words, from
twenty-seven to eighty-nine years before suit was instituted. This very
significant period of time raised critical questions as to when the
claim accrued." (J.A. at 296 (footnote and internal quotation marks
omitted).) Focusing on this critical question, the district court found
that the record was devoid of evidence that resolution of the issue
could occur on a class-wide basis. (J.A. at 296, 298 ("[Jefferson-Pilot]
has presented a strong prediction of evidence that there were numer-
ous sources available during the relevant period which could have
alerted class members to the fact that the practices now complained
of were common in the industry, if not uniform among White-owned
companies. . . . In light of the information which [Jefferson-Pilot] has
shown was available, the court cannot assume that none of the mem-
bers of the proposed class gained sufficient information to put them
on inquiry notice at some point which would result in their claim
being time barred.").) The district court held that this fact meant that
Jefferson-Pilot was entitled to present evidence as to individual class
members’ actual or constructive knowledge, thereby rendering the
class members’ claims uncommon from one another and precluding
certification under Rule 23(a). (J.A. at 298-300.) In the alternative,
the district court held that certification was improper under Rule
23(b)(3) because individual hearings on the statute of limitations and
the issue of damages were required, management of the class would
be difficult due to the need for such individual hearings, and the class
device was not superior to individual litigation. The district court also
held, again in the alternative to the Rule 23(a) holding, that certifica-
tion was improper under Rule 23(b)(2) because Appellants’ requested
injunctive and equitable relief was merely a predicate for money dam-
ages.
II.
On appeal, Appellants argue that the district court misapplied Rule
23(a), 23(b)(3) and 23(b)(2) in denying their motion to certify. "A dis-
trict court has broad discretion in deciding whether to certify a class."
Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001) (inter-
nal quotation marks omitted). "[P]laintiffs bear the burden . . . of
8 THORN v. JEFFERSON-PILOT LIFE INS.
demonstrating satisfaction of the Rule 23 requirements and the district
court is required to make findings on whether the plaintiffs carried
their burden . . . ." Gariety v. Grant Thornton, LLP, 368 F.3d 356, 370
(4th Cir. 2004). A district court per se abuses its discretion when it
makes an error of law or clearly errs in its factual findings. See Lien-
hart, 255 F.3d at 146 (noting that the district court’s discretion "must
be exercised within the framework of Rule 23"(internal quotation
marks omitted)); Lukenas v. Bryce’s Mountain Resort, Inc., 538 F.2d
594, 598 n.16 (4th Cir. 1976) (noting that "where there is clear error,"
appellate court should upset the district court’s exercise of its discre-
tion on a motion for certification).
We first address Appellants’ Rule 23(b)(3) arguments.
III.
Appellants argue that the district court abused its discretion in
denying the certification motion under Rule 23(b)(3) because
Jefferson-Pilot failed to satisfy its burden of showing that its statute
of limitations defense presented individual issues that could not be
resolved on a class-wide basis. They argue in the alternative that even
if they have the burden of proving that Jefferson-Pilot’s statute of lim-
itations defense presents common issues that can be resolved on a
class-wide basis, they have satisfied that burden. Jefferson-Pilot
argues that Appellants bear the burden of proving that its statute of
limitations defense presents common issues and that the district court
did not clearly err in finding that Appellants failed to satisfy this bur-
den. Before addressing these arguments, we pause to set forth the
legal landscape in which they arise.
A.
The class-action device, which allows a representative party to
prosecute his own claims and the claims of those who present similar
issues, is an exception to the general rule that a party in federal court
may vindicate only his own interests. See Gen. Tel. Co. of Sw. v. Fal-
con, 457 U.S. 147, 156 (1982). Chief among the justifications for this
device is its efficiency: adjudication of a properly-constituted class
action generally has res judicata effect and "saves the resources of
both the courts and the parties by permitting an issue potentially
THORN v. JEFFERSON-PILOT LIFE INS. 9
affecting every [class member] to be litigated in an economical fash-
ion." Califano v. Yamasaki, 442 U.S. 682, 701 (1979). To ensure this
benefit is realized, however, and to protect both the rights of the
absent plaintiffs to present claims that are different from those com-
mon to the class and the right of the defendant to present facts or raise
defenses that are particular to individual class members, district courts
must conduct a "rigorous analysis" to ensure compliance with Rule
23, Falcon, 457 U.S. at 161, paying "careful attention to the require-
ments of [that] Rule." E. Tex. Motor Freight Sys., Inc. v. Rodriguez,
431 U.S. 395, 405 (1977).8
To be certified, a proposed class must satisfy Rule 23(a) and one
of the three sub-parts of Rule 23(b). Gunnells v. Healthplan Servs.,
Inc., 348 F.3d 417, 423 (4th Cir. 2003). The requirements of Rule
23(a) are familiar: numerosity of parties, commonality of factual or
legal issues, typicality of claims and defenses of class representatives,
and adequacy of representation. Id. For purposes of this appeal, the
most salient of these requirements is commonality. "Commonality
requires that there are questions of law or fact common to the class."
Lienhart, 255 F.3d at 146 (internal quotation marks omitted). A com-
mon question is one that can be resolved for each class member in a
single hearing, such as the question of whether an employer engaged
in a pattern and practice of unlawful discrimination against a class of
its employees. See 7A Charles Allen Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 1763 (3d ed.
2005). A question is not common, by contrast, if its resolution "turns
on a consideration of the individual circumstances of each class mem-
ber." See id.
8
In Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 424 (4th Cir.
2003), we held that courts should give Rule 23 a "liberal rather than
restrictive construction, adopting a standard of flexibility in application
which will in the particular case best serve the ends of justice for the
affected parties and . . . promote judicial efficiency." Id. (internal quota-
tion marks omitted). To the extent the vision of liberality and flexibility
set forth by the court in Gunnells conflicts with the Supreme Court’s
admonitions that we should pay "careful attention" to Rule 23 by giving
it a "rigorous analysis," we are, of course, bound to follow the Supreme
Court.
10 THORN v. JEFFERSON-PILOT LIFE INS.
The district court found that Appellants’ proposed class did not sat-
isfy Rule 23(a). Because we base our decision on the district court’s
alternative holdings that certification was improper under Rules
23(b)(3) and 23(b)(2), we assume, without deciding, that Appellants
satisfied Rule 23(a), and turn our attention to Rule 23(b)(3).9
Rule 23(b)(3) has two components: predominance and superiority.
The predominance requirement is similar to but "more stringent" than
the commonality requirement of Rule 23(a). Lienhart, 255 F.3d at 146
n.4. Whereas commonality requires little more than the presence of
common questions of law and fact, see id. at 146, Rule 23(b)(3)
requires that "questions of law or fact common to the members of the
class predominate over any questions affecting only individual mem-
bers." Fed. R. Civ. P. 23(b)(3). The predominance requirement "tests
whether proposed classes are sufficiently cohesive to warrant adjudi-
cation by representation." Gariety, 368 F.3d at 362 (internal quotation
marks omitted). The superiority requirement ensures that "a class
action is superior to other available methods for the fair and efficient
adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). Among the
factors a district court should consider in deciding whether a class
action meets these two requirements are
(A) the interest of members of the class in individually con-
trolling the prosecution or defense of separate actions; (B)
the extent and nature of any litigation concerning the contro-
versy already commenced by or against members of the
class; (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; (D) the
difficulties likely to be encountered in the management of
a class action.
Fed. R. Civ. P. 23(b)(3).
At the class certification phase, the district court must take a "close
look" at the facts relevant to the certification question and, if neces-
sary, make specific findings on the propriety of certification. Gariety,
368 F.3d at 365 (internal quotations omitted). Such findings can be
9
Appellants did not invoke Rule 23(b)(1).
THORN v. JEFFERSON-PILOT LIFE INS. 11
necessary even if the issues tend to overlap into the merits of the
underlying case. Falcon, 457 U.S. at 160 ("[S]ometimes it may be
necessary for the [district] court to probe behind the pleadings before
coming to rest on the certification question."); Gariety, 368 F.3d at
366 ("[W]hile an evaluation of the merits . . . is not part of a Rule 23
analysis, the factors spelled out in Rule 23 must be addressed through
findings, even if they overlap with issues on the merits."). The likeli-
hood of the plaintiffs’ success on the merits, however, is not relevant
to the issue of whether certification is proper. See Eisen v. Carlisle
& Jacquelin, 417 U.S. 156, 177-78 (1974); Gariety, 368 F.3d 366.
Here, the district court found that Jefferson-Pilot’s statute of limita-
tions defense presented individual issues that could not be resolved on
a class-wide basis, a fact that contributed to its conclusion that com-
mon issues did not predominate under Rule 23(b)(3). (J.A. at 292,
294-300.) We therefore turn our attention to the statute of limitations
defense.
While Congress has not enacted a specific statute of limitations for
§§ 1981 and 1982, we interpret these federal statutes to "borrow" the
statute of limitations and equitable tolling rules applicable to the state
cause of action that is most analogous to §§ 1981 and 1982. See
Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987) ("Because
§ 1981, like [§ 1982 and 42 U.S.C. § 1983], does not contain a statute
of limitations, federal courts should select the most appropriate or
analogous state statute of limitations."); Wade v. Danek Med., Inc.,
182 F.3d 281, 289 (4th Cir. 1999) (holding that under a borrowed
statute of limitations state rules of equitable tolling apply). The parties
do not brief the various state causes of action from which we should
borrow the federal statute of limitations, but the district court con-
cluded, and the parties do not contest, that the statutes of limitations
for the §§ 1981 and 1982 claims range from 2 to 6 years. For pur-
poses of this appeal, we assume the district court’s conclusion is cor-
rect.
Whether state or federal law supplies the length of the limitations
period, federal law determines when the clock begins to run against
that period, or, phrased technically, when the cause of action "ac-
crues." Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th
Cir. 1995) (en banc). We have held that a cause of action accrues
12 THORN v. JEFFERSON-PILOT LIFE INS.
under a borrowed statute of limitations "either when the plaintiff has
[actual] knowledge of his claim or when he [has constructive knowl-
edge of his claim]—e.g., by the knowledge of the fact of injury and
who caused it—to make reasonable inquiry and that inquiry would
reveal the existence of a colorable claim." Id.; Brooks v. City of
Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996).10
Our circuit’s accrual rule, which focuses on the contents of the
plaintiff’s mind, is not readily susceptible to class-wide determina-
tion. Examination of whether a particular plaintiff possessed suffi-
cient information such that he knew or should have known about his
cause of action will generally require individual examination of testi-
mony from each particular plaintiff to determine what he knew and
when he knew it. See Broussard v. Meineke Disc. Muffler Shops, Inc.,
155 F.3d 331, 342 (4th Cir. 1998) (noting, in holding that a state stat-
ute of limitations defense presented individual issues, that "[w]hether
and when each [plaintiff] received, read, and understood [the informa-
tion that could have alerted them to the existence of a cause of action]
is crucial to whether their . . . claim against [the defendant] is time-
barred by [the] statute of limitations"). Indeed, in cases where the
legal issue is similarly focused on the plaintiff’s knowledge, such as
the requirement that a plaintiff in a fraud claim reasonably rely on the
10
In 1990, Congress enacted a residual statute of limitations applicable
to all federal causes of action created after the date of its enactment. 28
U.S.C.A. § 1658 (West Supp. 2005). This statute provides a four-year
window in which a plaintiff can bring suit "after the cause of action
accrues." It does not, however, define the word "accrue[ ]." Id.While § 1981 was enacted well before 1990, Congress amended
§ 1981 in 1991 to provide additional protections in the right to "make
and enforce contracts." See 42 U.S.C.A. § 1981(b). The Supreme Court
has held that a cause of action that relies on these additional rights is sub-
ject to the four-year statute of limitations found in § 1658. Jones v. R.R.
Donnelly & Sons Co., 541 U.S. 369, 382 (2004).
For purposes of this appeal, we need not consider whether Appellants’
claims rely on the 1991 amendments to § 1981, thus triggering § 1658
instead of borrowed state law, because neither party disputes that accrual
occurs when the class members knew or should have known of
Jefferson-Pilot’s dual-rate practices, regardless of whether the limitations
period is determined by § 1658 or state law.
THORN v. JEFFERSON-PILOT LIFE INS. 13
defendant’s representations, we have consistently held that individual
hearings are required. See Gunnells, 348 F.3d at 435 (holding, in class
action based on fraud, that "the reliance element of fraud and negli-
gent misrepresentation claims [is] not readily susceptible to class-
wide proof; rather, proof of reasonable reliance . . . depends upon a
fact-intensive inquiry into what information each [plaintiff] actually
had" (internal quotation marks omitted)); Zimmerman v. Bell, 800
F.2d 386, 390 (4th Cir. 1986) (denying class certification on fraud
claims where "the extent of knowledge of the omitted factors or reli-
ance on misrepresented fact will vary from shareholder to share-
holder").
B.
1.
With this background in mind, we return to Appellants’ arguments.
Appellants first argue that Dr. McKiven’s expert report failed to sat-
isfy Jefferson-Pilot’s burden of proving that its statute of limitations
defense presents issues that must be decided on an individual basis.
This argument, of course, assumes that Jefferson-Pilot bears such a
burden. Our cases prove this assumption false; we have stressed in
case after case that it is not the defendant who bears the burden of
showing that the proposed class does not comply with Rule 23, but
that it is the plaintiff who bears the burden of showing that the class
does comply with Rule 23. Windham v. Am. Brands, Inc., 565 F.2d
59, 65 n.6 (4th Cir. 1977) (en banc) ("It is well-settled in this jurisdic-
tion that the proponent of class certification has the burden of estab-
lishing the right to such certification under Rule 23."); Lienhart, 255
F.3d at 146 ("The party seeking class certification bears the burden
of proof."); Gariety, 368 F.3d at 362 ("The plaintiffs who propose to
represent the class bear the burden of demonstrating that the require-
ments of Rule 23 are satisfied."). It is not enough, therefore, for
Appellants to argue that Jefferson-Pilot failed to show that its statute
of limitations defense presents individual issues. Instead, the record
must affirmatively reveal that resolution of the statute of limitations
defense on its merits may be accomplished on a class-wide basis.
Seeking to avoid this conclusion, Appellants argue that because
Jefferson-Pilot bears the burden of proving the merits of its statute of
14 THORN v. JEFFERSON-PILOT LIFE INS.
limitations defense, it should also bear the burden of demonstrating
that resolution of that defense cannot occur on a class-wide basis.
Even assuming that Jefferson-Pilot has the burden of proving its stat-
ute of limitations defense on the merits,11 we reject this argument. Our
cases permit no exception to the rule that the plaintiff bears the bur-
den of showing compliance with Rule 23. See Gunnells, 348 F.3d at
438 (failing to carve out exception to the rule that the plaintiff must
show compliance with Rule 23 even though one of the individual
issues that defeated certification was a statute of limitations defense);
Broussard, 155 F.3d at 342 (same). Moreover, the standard justifica-
tions for allocating the burden of proving an affirmative defense to
the defendant — efficiency and fairness — disappear when the thing
to be proved is no longer the merit of the defense but compliance with
Rule 23. See Campbell v. United States, 365 U.S. 85, 96 (1961)
("[T]he ordinary rule, based on considerations of fairness, does not
11
It is by no means settled that Jefferson-Pilot bears the burden of
proving its statute of limitations defense. Indeed, several of our sister cir-
cuits have held that when the plaintiff’s injury occurs outside of the limi-
tations period, the plaintiff bears the burden of showing that he first
knew or should have known about his cause of action within the limita-
tions period. See O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1150
(9th Cir. 2002) (interpreting the Comprehensive Environmental
Response, Compensation, and Liability Act); Cathedral of Joy Baptist
Church v. Vill. of Hazel Crest, 22 F.3d 713, 717 (7th Cir. 1994) (inter-
preting 42 U.S.C. § 1983); Adkins v. Int’l Union of Elec. Workers, 769
F.2d 330, 335 (6th Cir. 1985) (interpreting National Labor Relations
Act). This rule, however, is not unanimous. See Hughes v. United States,
263 F.3d 272, 278 (3d Cir. 2001) (holding that the statute of limitations
under the Federal Tort Claims Act [FTCA] "is an affirmative defense
which the defendant has the burden of establishing." (internal quotation
marks omitted)); Schmidt v. United States, 933 F.2d 639, 640 (8th Cir.
1991) (same). We have never decided the issue, although we have held
that an FTCA plaintiff bears the burden of showing at least one element
of constructive knowledge for accrual purposes. Gould v. U.S. Dep’t of
Heath & Human Servs., 905 F.2d 738, 745-46 (4th Cir. 1990) (en banc)
("The burden is on plaintiffs to show that due diligence was exercised
and that critical information, reasonable investigation notwithstanding,
was undiscoverable."). Because it is clear that Jefferson-Pilot does not
bear the burden of showing non-compliance with Rule 23 even if it bears
the burden of proving its statute of limitations defense on the merits, we
need not weigh in on this debate today.
THORN v. JEFFERSON-PILOT LIFE INS. 15
place the burden upon a litigant of establishing facts peculiarly within
the knowledge of his adversary."). There is no reason to believe that
the defendant is any better suited than the named plaintiffs to prove
whether an issue is common to the class simply because the defendant
bears the burden of proving the merits of that issue. We therefore con-
tinue, as we must, to allocate to the plaintiff the burden of proving
compliance with Rule 23.
Appellants next contend that even if they have the burden of prov-
ing that Jefferson-Pilot’s statute of limitations defense presents com-
mon questions that can be resolved on a class-wide basis, the
evidence in this case satisfies this showing. First, Appellants argue
that Dr. Norrell’s expert report demonstrates that the public was not
generally aware of insurance companies’ dual-rate practices. That
report concludes that "the public, or the average citizen of the United
States, including African-Americans, was not generally aware of
[these] practices." (J.A. at 70.) Whether the "average citizen" (who-
ever that is) or "the public" (whoever that is) was or was not "gener-
ally aware" of insurance companies’ dual-rate practices, is, however,
irrelevant to the question that the trier of fact will have to answer to
resolve Jefferson-Pilot’s statute of limitations defense on the merits:
Were any of the individual class members aware, actually or con-
structively, outside of the limitations period that Jefferson-Pilot was
treating him or her differently from white policyholders? Dr. Norrell’s
report, therefore, does not support a finding that the trier of fact could
resolve this question on a class-wide basis.12
Second, Appellants argue that because their depositions show that
none of them had actual or constructive knowledge of Jefferson-
Pilot’s dual-rate practices, it is reasonable to infer that none of the
12
Appellants argue that the district court abused its discretion by failing
to mention Dr. Norrell’s report in denying their motion for certification.
We will not assume, however, that simply because the district court did
not mention the report in its written order it failed to consider the evi-
dence. In any event, because we conclude that Dr. Norrell’s report would
not support a finding that Jefferson-Pilot’s statute of limitations defense
presented a common issue that could be resolved on a class-wide basis,
we need not decide whether the district court (properly) discredited or
(improperly) ignored that report.
16 THORN v. JEFFERSON-PILOT LIFE INS.
class members had such knowledge. Even assuming Appellants’ argu-
ment accurately represents the record, this argument is without merit.
As the Supreme Court has consistently pointed out, the question at
this stage in the proceedings is not whether the district court will
arrive at the same conclusion in resolving each class member’s
accrual issue, but whether it can resolve those issues in a class-wide
manner. See, e.g., Eisen, 417 U.S. at 177-78. The very fact that
Appellants ask us to inspect their individual deposition testimony to
determine whether any of them acquired actual or constructive knowl-
edge reveals that resolution of the statute of limitations defense will
similarly require the trier of fact to examine the particular circum-
stances of each individual class member.13
Third, Appellants argue that because of the homogeneity of the
class, which they describe as being comprised of "blue-collar African-
Americans" (Appellants’ Br. at 14), any question of whether the
members of the class were exposed to sufficient information to cause
their claims to accrue can be determined on a class-wide basis. But
short of the fact that the class members are all African-American and
all purchased industrial life insurance policies from Jefferson-Pilot,
the record reveals no information that would allow us to conclude that
the class members — 1.4 million African-Americans of all ages and
both sexes, who are spread out geographically over four states and
13
Our good colleague in dissent argues that such an inspection of the
Appellants’ deposition testimony is actually required under Gariety v.
Grant Thornton, LLP, 368 F.3d 356 (4th Cir. 2004). We cannot agree.
As we have discussed, Gariety requires the district court to take a "close
look" at the issues made relevant by the certification motion; i.e.,
whether the case can be resolved on a class-wide basis. 368 F.3d at 366
(internal quotation marks omitted). Whether any individual plaintiff was
aware of sufficient information to have actual or constructive knowledge
is simply not relevant to this question. To hold otherwise, as the dissent
suggests, is to say that issues are common if, after individual evaluation,
the trier of fact arrives at the same result in each case. Such a holding
puts the cart before the horse — the class-action device is not proper
simply because the trier of fact may arrive at the same result in a large
number of cases. Instead, it is a procedural mechanism that allows a large
number of individual cases to be resolved in a common manner. Evaluat-
ing the merits of individual cases is not a common manner of resolving
them.
THORN v. JEFFERSON-PILOT LIFE INS. 17
temporally over 62 years — are so homogeneous that media reports
and other information about dual-rate practices would affect them all
in precisely the same manner. We refuse to make such broad general-
izations about the class members based on nothing more than the
color of their skin and inferences about their socio-economic status
arising from the fact that they purchased an industrial life insurance
policy from Jefferson-Pilot. To do so would be to engage in the very
brand of stereotyping about which Appellants complain.
Fourth, Appellants argue that because Jefferson-Pilot instructed its
agents to conceal the dual-rate practices, we should create a class-
wide presumption of unawareness of those practices that Jefferson-
Pilot failed to rebut by failing to offer any evidence that any class
member knew or should have known about the practices. According
to Appellants, this unrebutted class-wide presumption allows the dis-
trict court to resolve the statute of limitations issue (in their favor) on
a class-wide basis.
A presumption arises when proof of one fact gives rise to a "natural
inference" that another fact is true and proof of the second fact is dif-
ficult to obtain. See McCormick on Evidence § 344; see also Basic
Inc. v. Levinson, 485 U.S. 224, 245 (1988) ("Presumptions typically
serve to assist courts in managing circumstances in which direct
proof, for one reason or another, is rendered difficult."). We cannot
say that the class members’ unawareness of their cause of action is
the "natural inference" of the defendant’s concealment, and, at any
rate, evidence of unawareness of the cause of action is information
uniquely in the class’s possession, a fact that defeats the necessity of
a presumption in the class’s favor. See Gunnells, 348 F.3d at 435-36
(declining to create a presumption of reliance in insurance fraud claim
against individual insurance agents because "allegations of . . . mis-
representation offer no substitute for actual reliance"). Moreover, in
the analogous context of equitable tolling, we have held that a plain-
tiff who alleges the defendant concealed the cause of action from him
must prove actual concealment to toll the statute of limitations. Super-
mkt. of Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119,
122 (4th Cir. 1995) (holding that to prevail on an argument that fraud-
ulent concealment tolls the statute of limitations, "the plaintiff must
demonstrate[, inter alia, that he] failed to discover those facts within
the statutory period" (emphasis added)). We see no principled reason
18 THORN v. JEFFERSON-PILOT LIFE INS.
to depart from this holding when the plaintiff argues that concealment
prevents accrual.14
Our good colleague in dissent does not make any argument (short
of simple assertion) that the evidence in this case demonstrates that
Jefferson Pilot’s statute of limitations defense can be resolved on a
class-wide basis, post at 37 n.3, yet he repeatedly argues that the dis-
trict court abused its discretion in denying the certification motion
because Jefferson-Pilot failed to show that its statute of limitations
defense requires individualized adjudication. We believe, however,
that burdens of proof and standards of review matter. As we have
demonstrated, the relevant inquiry is not whether Jefferson-Pilot has
shown that the statute of limitations defense requires individualized
adjudication, but whether the district court clearly erred in finding
that Appellants failed to show that the statute of limitations defense
can be resolved on a class-wide basis. For the reasons set forth above,
we believe that it did not.
2.
We recognize that parts of our analysis of these issues are in some
tension with the Fifth Circuit’s decision in In re Monumental Life Ins.
Co., 365 F.3d 408 (5th Cir. 2004), cert. denied sub nom. Am. Nat’l
Ins. Co. v. Bratcher, 125 S.Ct. 277 (2004), a decision with facts simi-
14
Appellants also argue that we should create a presumption of con-
cealment that equitably tolls the statute of limitations, thereby making
resolution of the statute of limitations defense susceptible to class-wide
determination. This argument is different, although subtly so, from the
one we address in the text. In the text, we consider (and reject) Appel-
lants’ argument that Jefferson-Pilot’s concealment creates a class-wide
presumption of unawareness that prevents accrual. Here, we consider
Appellants’ argument that Jefferson-Pilot’s concealment creates a class-
wide presumption of unawareness that equitably tolls the statute of limi-
tations once it has accrued. Subtleties aside, we reject the equitable-
tolling argument as well. As discussed, under a borrowed statute of limi-
tations, we apply state rules of equitable tolling. See Wade v. Danek
Med., Inc., 182 F.3d 281, 289 (4th Cir. 1999). Appellants have cited no
state law in support of such a presumption. And to the extent § 1658
applies, as noted in the text, federal equitable tolling principles require
proof of unawareness.
THORN v. JEFFERSON-PILOT LIFE INS. 19
lar to those before us. In Monumental, the plaintiffs brought §§ 1981
and 1982 claims on behalf of a nationwide class of 5.6 million
African-Americans, alleging that the defendants, approximately 280
life insurance companies, had issued dual-rate industrial insurance
policies over the course of the preceding 50-60 years. 365 F.3d at
412. The defendants raised a statute of limitations defense and argued
that certification was improper because the issue of accrual presented
individual issues that were not susceptible to class-wide determina-
tion. Id. at 420. Reversing the district court’s denial of the plaintiffs’
motion to certify, the court in Monumental held that whether the poli-
cyholders had "constructive notice [of their cause of action is] an
issue that can be decided on a classwide basis." Id. at 421.15 The court
in Monumental did not order the district court to grant the certifica-
tion motion, however, but only remanded for further consideration of
the certification issue. Id.While this holding seems apposite to the issue presented here,
closer inspection reveals that the court in Monumental neither held
what Appellants ask us to hold nor even directly addressed the ques-
tion before us today. In Monumental, the insurance companies relied
on a theory of constructive notice in support of their statute of limita-
tions defense; i.e., that because of the widespread media coverage of
insurance companies’ dual-rate practices, the court could find that
reasonable persons, including class members, should have been aware
of sufficient information to provide actual or constructive knowledge
of the practices. Id. at 421 ("[D]efendants rely on a theory of con-
structive notice, arguing that widespread media reporting of the issue
over the last several decades should have excite[d] the inquiry of a
reasonable person. Where events receive widespread publicity, plain-
tiffs may be charged with knowledge of their occurrence." (alterations
in original and citations omitted)). The court held that because the
record contained no evidence that media coverage of the issue varied
15
The court in Monumental also held that the plaintiffs were entitled
to a class-wide presumption of unawareness because the defendants con-
cealed their dual-rate policies. Id. at 420 n.22 ("Here, accrual of the stat-
ute of limitations is premised on defendants’ common practice of
concealment, so a presumption of unawareness by the plaintiff class is
warranted."). For the reasons already discussed, we respectfully disagree
with this holding.
20 THORN v. JEFFERSON-PILOT LIFE INS.
from state to state, the question of whether a reasonable person could
be held to have been exposed to sufficient information to provide
actual or constructive knowledge presented a question that could be
resolved on a class-wide basis. Id.16
Here, by contrast, Jefferson-Pilot does not argue that the district
court should hold that widespread media treatment of the issue pro-
vided a reasonable person with sufficient information to give him
either actual or constructive knowledge. Instead, it argues that indi-
vidual class members were actually exposed to sufficient information
to give them either actual or constructive knowledge of Jefferson-
Pilot’s dual-rate practices outside the limitations period. Whereas in
Monumental resolution of the defendants’ theory of their statute of
limitations defense allowed the district court to create a hypothetical
"reasonable person," ask what information that person should be
charged with knowing, and then determine whether such information
would have given rise to actual or constructive knowledge of the
defendant’s practices, Jefferson-Pilot’s theory, which is focused on
the actual information possessed by individual class members, allows
no such hypothetical. Instead, the district court here must conduct an
individual inquiry into the information each class member actually
possessed to determine whether each class member had actual or con-
structive knowledge of Jefferson-Pilot’s dual-rate practices. Whatever
the merits of Monumental’s holding, and we need not further discuss
them here, it is clear that the holding was not based on the legal the-
ory of the statute of limitations defense that Jefferson-Pilot pursued.17
16
Although often used loosely, the terms "constructive notice" and
"constructive knowledge" are not synonymous. Constructive notice
refers to the factual information a reasonable person can be presumed to
know because of widespread publicity. Constructive knowledge, by con-
trast, refers to the legal question of whether knowledge of certain infor-
mation is sufficient to spur an inquiry into whether a claim exists. In
Monumental then, the defendant argued that information about its dual-
rate practices was so widespread that the plaintiffs should be charged
with either actual knowledge of the practices or charged with knowledge
of sufficient information to spur a reasonable inquiry.
17
The dissent suggests that our case is identical to Monumental because
"Jefferson-Pilot has nothing but widespread media treatment and public-
ity to rely on for its defense" of actual notice that gave rise either to
THORN v. JEFFERSON-PILOT LIFE INS. 21
Our interpretation of Monumental is buttressed by the proceedings
on remand in that case. Instead of relying on a theory of constructive
notice in support of their statute of limitations defense, as they had
before the Fifth Circuit, the insurance companies on remand relied on
a theory of actual notice, as Jefferson-Pilot does here. In re: Industrial
Life Ins. Litigation, MDL No. 1371 and consolidated MDLs, slip. op.
at 13 n. 18 (E.D. La. Jan. 11, 2006) (order denying class certification)
("The majority in Monumental seemed to assume that the defendants
relied solely on an issue of constructive notice, whereas it is clear on
remand that the defendants intend to pursue [a] theor[y] of actual
notice . . . ."). On this new legal theory, the district court denied the
certification motion, finding that "the plaintiffs . . . failed to show that
the predominance requirement of Rule 23(b)(3) has been satisfied"
because "individualized proof is patently required to litigate the
defendants’ statute of limitations defense." Id. at 15 (emphasis added).18
actual or constructive knowledge. Post at 39. There are two problems
with this suggestion. First, it assumes that simply because of the color of
the class members’ skin and their socio-economic status they were each
exposed to identical news reports (and the like) regarding insurance com-
panies’ race-based practices. For reasons already discussed, we will not
indulge this assumption. Second, the dissent again forgets that the burden
of proving the propriety of certification rests on the Appellants, not
Jefferson-Pilot. It is not Jefferson-Pilot’s task to show that its statute of
limitations defense presents individualized questions, but Appellants’
task to show that it presents common ones.
18
The dissent contends that the district court in Monumental denied the
certification motion on remand because the insurance companies
"proved" that their statute of limitations defense required individualized
adjudication. Post at 39 (internal quotation marks omitted). While the
dissent accurately represents the district court’s finding in that case, it
fails to recognize that such a finding was not necessary for its decision.
As we have been at pains to emphasize, and as the district court recog-
nized on remand in Monumental, the relevant question in considering a
certification motion is not whether the defendant has shown certification
is improper, but whether the plaintiff has shown certification is proper.
If the defendant shows by affirmative evidence that certification is
improper, that fact certainly means that the plaintiff has failed to show
the opposite, but it does not mean that the motion would have prevailed
had the defendant not made such a showing.
22 THORN v. JEFFERSON-PILOT LIFE INS.
3.
We therefore conclude that the district court did not clearly err in
finding that Jefferson-Pilot’s statute of limitations defense presented
issues that cannot be determined on a class-wide basis. As our discus-
sion reveals, this conclusion is not born of a view that individual
questions necessarily arise any time a defendant raises a statute of
limitations defense. Such a holding would be inconsistent with Gari-
ety’s requirement that the district court take a "close look" at the facts
relevant to the certification question. 368 F.3d at 365 (internal quota-
tions omitted). Indeed, we can easily foresee a situation where the
defendant’s statute of limitations defense is so dependant upon facts
applicable to the entire class, qua class, that individual hearings
would not be necessary.19 Appellants, however, have not shown that
such facts are present here. To hold otherwise would force Jefferson-
19
One such situation might have arisen here if, for example, Jefferson-
Pilot had sent mailings to all of its insureds on a particular date inform-
ing them of its dual-rate practices and relied on knowledge of the content
of those mailings in arguing its statute of limitations defense, and Appel-
lants argued only that the mailings were insufficient to cause accrual.
Another such situation would have arisen if Appellants had shown that
Jefferson-Pilot’s statute of limitations defense was so patently without
merit that the district court could find that the defense was not even a real
"issue" in the case. Cf. Gunnells, 348 F.3d at 438 (finding that statute of
limitations defense presented individual issues where the defense was
"not without merit and would require individual inquiry in at least some
cases").
Our dissenting colleague seems to think that this second situation was
satisfied here. He does not argue that the record fails to support the dis-
trict court’s finding that information from numerous sources was avail-
able during the relevant period to the class members that "could have
alerted" them of Jefferson-Pilot’s race-based practices. Rather, he con-
tends that the "could have alerted" standard is incorrect as a matter of
law, that the correct legal standard is whether class members had actual
or constructive knowledge of Jefferson-Pilot’s practices, and that the evi-
dence did not satisfy this standard. Post at 36-37. We disagree. The dis-
sent again confuses the merits of Jefferson-Pilot’s statute of limitations
defense with the certification issue before us today. In evaluating
whether Jefferson-Pilot’s limitations defense is even an "issue" in the
case, the question is not whether the record demonstrates that any partic-
ular class members had actual or constructive knowledge of Jefferson-
Pilot’s race-based practices — as it would be on the merits — but
whether the record demonstrates that an argument that any class mem-
bers had such knowledge is patently without merit. We believe that the
"could have alerted" standard appropriately captures this inquiry.
THORN v. JEFFERSON-PILOT LIFE INS. 23
Pilot "to defend against a fictional composite without the benefit of
deposing or cross-examining the disparate individuals behind the
composite." Broussard, 155 F.3d at 345. Moreover, assuming the trier
of fact found that the hypostatized "blue-collar African-American"
knew or should have known of his cause of action, a holding allowing
the case to proceed as a class would risk cutting off the rights of those
Jefferson-Pilot policyholders who lacked such knowledge to receive
an individual adjudication of the merits of their claims.
4.
As noted, the district court did not base its Rule 23(b)(3) denial of
Appellants’ certification motion solely on its finding that the individ-
ual issues presented by Jefferson-Pilot’s statute of limitations defense
predominated over the common issues present in the case, such as
whether Jefferson-Pilot’s acts violated §§ 1981 and 1982. Rather, the
district court also found that because each class member suffered
unique damages, the class’s claim for equitable restitution was like-
wise not susceptible to class-wide determination. Moreover, the dis-
trict court found that allowing the case to proceed as a class action
would present substantial manageability problems at trial. In particu-
lar, it focused on the facts that (1) at the individual hearings required
for resolution of the statute of limitations defense, the fact-finder
would have to apply one of four different states’ laws (and, to some
of the claims, possibly even federal law, see footnote 10) to supply
the limitations period and the rules of equitable tolling, and (2) that
the fact finder would be unable to evaluate the class’s damages on a
common basis. Finally, the district court found that the class-action
device was not necessarily superior to individual trials. Significantly,
the district court noted that the small amount of each class member’s
claim would not dissuade an attorney from taking class member’s
individual cases because 42 U.S.C.A. § 1988 (West 2003) allows pre-
vailing plaintiffs in §§ 1981 and 1982 actions to recover attorney’s
fees.20
(Text continued on page 25)
20
The dissent’s pronouncement that our decision "means that
Jefferson-Pilot Life Insurance Company will never be held to account"
for any unlawful discrimination it committed is therefore puzzling. Post
at 31. The dissent does not attempt to discredit the district court’s factual
24 THORN v. JEFFERSON-PILOT LIFE INS.
finding that, based in part because of the lure of attorney’s fees, denial
of the certification motion is no impediment to resolution of the Appel-
lants’ complaint or the complaint of anyone similarly situated. Instead,
the dissent argues that this factual finding was "fueled in large measure
by the district court’s erroneous finding that the statute of limitations
defense could not be resolved on a classwide basis." Post at 41. This
argument, however, is incorrect. Even assuming the district court erred
in finding that Jefferson-Pilot’s statute of limitations defense presented
issues that cannot be resolved on a classwide basis, this (assumed) error
had no bearing whatsoever on the district court’s finding that individual
plaintiffs will be able to pursue individual actions in the absence of a
class action.
Moreover, the district court’s factual finding on this point is correct.
Every potential class member who believes that his §§ 1981 and 1982
rights were violated may file an action in state or federal court. See Sulli-
van v. Little Hunting Park, Inc., 396 U.S. 229, 235-40 (1969) (holding
that state and federal courts have concurrent jurisdiction under §§ 1981
and 1982). If such a party prevails, he may be entitled to punitive dam-
ages, see Johnson v. Railway Exp. Agency, Inc., 421 U.S. 454, 460-61
(1975), and attorney’s fees, see U.S.C.A. § 1988 (West 2003); Hensley
v. Eckerhart, 461 U.S. 424, 429 (1983). Although the amount of dam-
ages recovered is relevant to the amount of the punitive damage and
attorney’s fee award, the small amount of damages involved in each indi-
vidual plaintiff’s claims against Jefferson-Pilot would not necessarily
provide an obstacle to a sizeable attorney’s fee award because the
Supreme Court has rejected "the proposition that fee awards under
§ 1988 should necessarily be proportionate to the amount of damages a
civil rights plaintiff actually recovers." City of Riverside v. Rivera, 477
U.S. 561, 574 (1986). Awards of attorney’s fees substantially exceeding
damages are not unusual in civil rights litigation. See, e.g., Mercer v.
Duke Univ., 401 F.3d 199, 211-12 (4th Cir. 2005) (affirming $349,244
in attorney’s fees awarded in Title IX suit yielding only nominal damage
award); Wadsworth v. Clindon, 846 F.2d 265, 266-67 (4th Cir. 1988)
(affirming $13,317 in attorney’s fees awarded in Fair Housing Act suit
yielding $1,000 in compensatory damages); Northington v. Marin, 102
F.3d 1564, 1570-71 (10th Cir. 1996) (affirming $93,649 in attorney’s
fees awarded in § 1983 suit yielding $5,000 judgment); Estate of Borst
v. O’Brien, 979 F.2d 511, 517 (7th Cir. 1992) (affirming $47,254 in
attorney’s fees in § 1983 suit yielding $500 in compensatory damages
THORN v. JEFFERSON-PILOT LIFE INS. 25
Appellants neither challenge these additional findings nor do they
argue that, even assuming Jefferson-Pilot’s statute of limitations
defense is an individual issue, common issues still predominate over
individual ones. Instead, in contesting the district court’s Rule
23(b)(3) ruling, they rely exclusively on their argument that Jefferson-
Pilot’s statute of limitations defense presents common questions that
can be resolved on a class-wide basis.21 Because, as we have shown,
the district court’s finding otherwise was not clearly erroneous, we
agree with the district court that certification was improper under
Rule 23(b)(3).22
and $500 in punitive damages). Indeed, the attentive reader of this opin-
ion will observe that our disposition is to affirm the district court’s denial
of the certification motion and remand to allow the Appellants to pursue
their individual claims.
While we are empathetic to Appellants’ plight, even assuming that the
class-action device is more favorable to Appellants than individual
actions would be, it is not the task of the federal court to create class-
action rules that favor those with whom we empathize.
21
Appellants do argue in their reply brief that the district court erred
in concluding that the individual issues presented by the statute of limita-
tions defense prevented common issues from predominating, but those
arguments come too late. See Edwards v. City of Goldsboro, 178 F.3d
231, 241 n.6 (4th Cir. 1999) (noting that issues omitted from opening
brief are considered waived).
22
In Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331(4th Cir. 1998), we held that "when the defendant’s affirmative defenses
(such as the statute of limitations) may depend on facts peculiar to each
plaintiff’s case, class certification is erroneous [under Rule 23(a)]." Id.
at 342. Similarly, in Gunnells v. Healthplan Servs., Inc., 348 F.3d 417(4th Cir. 2003) we cited Broussard for the proposition that when a statute
of limitations defense "would require individualized inquiry in at least
some cases . . . ‘class certification is erroneous’ [under Rule 23(b)(3)]."
Id. at 438. The parties devoted substantial portions of their respective
briefs arguing whether these cases set forth a per se rule that certification
is improper under Rule 23(a) (Broussard) and Rule 23(b)(3) (Gunnells)
whenever the defendant raises a statute of limitations defense that
requires individual hearings. Because Appellants challenged only the dis-
trict court’s finding that Jefferson-Pilot’s statute of limitations defense
was not a common issue, we need not decide whether Broussard and
Gunnells set forth such a per se rule.
26 THORN v. JEFFERSON-PILOT LIFE INS.
IV.
Appellants also argue that certification was proper under Rule
23(b)(2) because the class seeks an injunction and equitable restitu-
tion. Jefferson-Pilot argues that Rule 23(b)(2) certification is
improper because Appellants’ injunction request is illusory and
because Appellants’ equitable demand is essentially a request for
monetary relief.
A putative class satisfies Rule 23(b)(2) if "[1] the party opposing
the class has acted on grounds generally applicable to the class, [2]
thereby making appropriate final injunctive relief or corresponding
declaratory relief with respect to the class as a whole."23 The 1966
Advisory Committee Notes to this rule provide that it was
intended to reach situations where a party has taken action
or refused to take action with respect to a class, and final
relief of an injunctive nature or of a corresponding declara-
tory nature, settling the legality of the behavior with respect
to the class as a whole, is appropriate. . . . The [Rule] does
not extend to cases in which the appropriate final relief
relates exclusively or predominately to money damages.
Rule 23(b)(2) advisory committee’s note. Accordingly, we have held
that Rule 23(b)(2) does not "cover cases where the primary claim is
for damages, but is only applicable where the relief sought is . . . pre-
dominantly injunctive or declaratory." Lukenas, 538 F.2d at 595(internal quotation marks and ellipsis omitted); see also Zimmerman
v. Bell, 800 F.2d 386, 389-90 (4th Cir. 1986)(holding that Rule
23(b)(2) does not apply where the proposed class seeks "essentially
monetary relief," but is "limited to claims where the relief sought was
primarily injunctive or declaratory").
The twin requirements of Rule 23(b)(2) — that the defendant acted
on grounds applicable to the class and that the plaintiff seeks predom-
inantly injunctive or declaratory relief — make that Rule particularly
23
For a class to be certified under Rule 23(b)(2), it must also satisfy
Rule 23(a). As we did in the Rule 23(b)(3) context, we also assume here
that Appellants satisfied Rule 23(a).
THORN v. JEFFERSON-PILOT LIFE INS. 27
suited for class actions alleging racial discrimination and seeking a
court order putting an end to that discrimination. See Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 614 (1997) ("Civil rights cases against
parties charged with unlawful, class-based discrimination are prime
examples [in which class certification is proper under Rule
23(b)(2)].").24 There is no legal presumption, however, in favor of cer-
tifying cases alleging discrimination. Like any other, such a case must
comply with the strictures of Rule 23. See Shelton v. Pargo, Inc., 582
F.2d 1298, 1312 (4th Cir. 1978) (noting that the Supreme Court has
dispelled "any notion that cases [alleging racial discrimination] do not
require the same inquiry [under Rule] 23 as other types of cases").
The requirement that declaratory or injunctive relief predominate,
of course, echoes the predominance requirement of Rule 23(b)(3),
and, albeit indirectly, "serves essentially the same function[ ]." See
Allison v. Citgo Petroleum Corp., 151 F.3d 402, 414-15 (5th Cir.
1998). A class-action claim for monetary relief may present common
questions of liability, but, because the goal of the damage phase is to
compensate the plaintiffs for their individual injuries, the claim will
generally require the court to conduct individual hearings to deter-
mine the particular amount of damages to which each plaintiff is enti-
tled. See id. at 413 ("Monetary remedies are more often related
directly to the disparate merits of individual claims. As a result, a
class seeking substantial monetary remedies will more likely consist
of members with divergent interests." (citations omitted)). Where the
requested relief is declaratory or injunctive, by contrast, the goal of
the remedy phase is either to make a declaration about or enjoin the
defendant’s actions affecting the class as a whole, and individual
hearings will not be necessary. See id. ("[T]he underlying premise of
the [Rule 23(b)(2)] class [is] that its members suffer from a common
injury properly addressed by class-wide relief. . . ."). Rule 23(b)(2)’s
categorical exclusion of class actions seeking primarily monetary
relief, like Rule 23(b)(3)’s predominance requirement, therefore
24
Indeed, Rule 23(b)(2) was created to facilitate civil rights class
actions. See 7AA Charles Allen Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 1775 (3d ed. 2005).
28 THORN v. JEFFERSON-PILOT LIFE INS.
ensures that the class is sufficiently cohesive that the class-action
device is properly employed.25
Appellants argue that certification was proper under Rule 23(b)(2)
because their request for injunctive relief from Jefferson-Pilot’s col-
lection of discriminatory premiums predominates over any monetary
relief they seek. The district court found, however, and Appellants do
not contest, that Jefferson-Pilot declared all of its outstanding indus-
trial life insurance policies "paid up" and that it is, therefore, no lon-
ger collecting any premiums on those policies. Appellants’ requested
injunctive relief is therefore moot and cannot serve as a predicate for
Rule 23(b)(2) certification. See Monumental, 365 F.3d at 416 ("Of
course, certification under Rule 23(b)(2) is appropriate only if mem-
bers of the proposed class would benefit from the injunctive relief
they request.").
This conclusion brings us to the class’s request for restitution.
Appellants argue that Rule 23(b)(2) authorizes certification when the
predominant relief the class seeks is equitable in nature. They also
argue that their request is an equitable one. We disagree with both of
these arguments.
The text of Rule 23(b)(2) says nothing whatsoever about equitable
relief, but authorizes class treatment only when the plaintiff seeks pre-
dominantly "injunctive" or "declaratory" relief. "[W]hen the terms of
a statute are clear and unambiguous, [as they are here,] our inquiry
25
Unlike Rule 23(b)(3), Rule 23(b)(2) neither requires that absent class
members be given notice of class certification nor allows class members
the opportunity to opt-out of the class action. See Fed. R. Civ. P.
23(c)(2)(A). By requiring that injunctive or declaratory relief predomi-
nate, therefore, Rule 23(b)(2) ensures that the benefits of the class action
inure to the class as a whole without running the risk of cutting off the
rights of absent class members to recover money damages and class
members who want individualized evaluation of their claim for money
damages. Whereas Rule 23(b)(3) protects these rights by requiring notice
and the opportunity to opt-out, Rule 23(b)(2) protects these interests indi-
rectly by allowing certification only when the relief sought is predomi-
nantly injunctive or declaratory. See Allison v. Citgo Petroleum Corp.,
151 F.3d 402, 412-15 (5th Cir. 1998).
THORN v. JEFFERSON-PILOT LIFE INS. 29
ends and we should stick to our duty of enforcing the terms of the
statute as Congress has drafted it." Sigmon Coal Co. v. Apfel, 226
F.3d 291, 305 (4th Cir. 2000) (citations and internal quotation marks
omitted)); Business Guides, Inc. v. Chromatic Communications
Enters, Inc., 498 U.S. 533, 540 (1991) (applying the plain meaning
rule to the Federal Rules of Civil Procedure). To be sure, injunctive
and declaratory relief are equitable remedies. But if the Rule’s
drafters had intended the Rule to extend to all forms of equitable
relief, the text of the Rule would say so. See Leatherman v. Tarrant
County Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
168 (1993) (applying the maxim expressio unius est exclusio alterius
to the Federal Rules of Civil Procedure). We therefore hold that certi-
fication under Rule 23(b)(2) is improper when the predominant relief
sought is not injunctive or declaratory, even if the relief is equitable
in nature. Because Appellants’ injunction request is illusory, their
prayer for injunctive relief cannot predominate over their prayer for
non-injunctive, non-declaratory equitable relief under any reasonable
interpretation of Rule 23(b)(2).
Appellants seek to counter this conclusion by arguing that such a
holding is incompatible with Title VII case law where courts, includ-
ing our own, have found certification proper under Rule 23(b)(2)
despite the fact the prevailing plaintiffs are entitled to monetary relief
in the form of backpay, which the courts have characterized as a form
of equitable relief. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S.
405, 416 (1975); Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.
1971). But this argument misconstrues our holding: we do not hold,
nor have we ever held, that monetary relief is fundamentally incom-
patible with Rule 23(b)(2). Instead, we hold only that relief that is
neither injunctive nor declaratory may not predominate over the
injunctive and declaratory relief in a proper Rule 23(b)(2) action. This
holding necessarily contemplates that some non-injunctive or non-
declaratory relief, be it equitable or, possibly, legal, may be proper
under Rule 23(b)(2), so long as it does not predominate. And in the
Title VII context, awards of backpay do not predominate over the
injunctive remedies available because the "calculation of back pay
generally involves [relatively un]complicated factual determinations
and few[ ] individualized issues." Coleman v. Gen. Motors Accep-
tance Corp., 296 F.3d 443, 449 (6th Cir. 2002). In other words, our
prior cases have held that Rule 23(b)(2) class certification is proper
30 THORN v. JEFFERSON-PILOT LIFE INS.
in the Title VII context not because backpay is an equitable form of
relief, but because injunctive or declaratory relief predominates
despite the presence of a request for back pay.26
Even assuming that Rule 23(b)(2) authorizes certification when the
class seeks a predominantly equitable remedy, we conclude that
Appellants do not seek equitable relief. Restitution can be a legal or
an equitable remedy. See Great-West Life & Annuity Ins. Co. v. Knud-
son, 534 U.S. 204, 212-18 (2002). It is a legal remedy where the
plaintiff cannot "assert title or right to possession of particular prop-
erty, but [he] might be able to show just grounds for recovering
money to pay for some benefit the defendant had received from him."
Id. at 213. It is an equitable remedy, by contrast, "where money or
property identified as belonging in good conscience to the plaintiff
could clearly be traced to particular funds or property in the defen-
dant’s possession. . . . But where the property sought to be recovered
or its proceeds have been dissipated so that no product remains, the
plaintiff’s claim is only that of a general creditor" and the restitution
claim is a legal one. Id. (internal quotation marks and alterations
omitted). Appellants, who, it bears repeating, shoulder the burden of
proving certification, have not submitted any evidence — nor have
they even argued — that Jefferson-Pilot’s race-based premium over-
charges are traceable. On the record before us, therefore, we cannot
conclude that the class’s restitution request is an equitable remedy.
26
Even Monumental, on which Appellants so heavily rely in support of
their Rule 23(b)(3) arguments, did not hold that Rule 23(b)(2) authorizes
class-action suits that only seek equitable relief. Rather, in Monumental,
the court found that injunctive relief predominated because the plaintiffs
sought to compel the defendants to stop collecting premiums, and the
record showed that 1 million to 4.5 million of the 5.6 million policies
issued were still in effect. 365 F.3d at 418-19.
On remand, the insurance companies in Monumental submitted evi-
dence showing that only 2%, or approximately 112,000 of the policies
at issue in that case, were still in force and less than 1/10th of 1%, or
fewer than 5,600, of those policies were still collecting premiums. In re:
Industrial Life Ins. Litigation, MDL No. 1371 and consolidated MDLs,
slip. op. at 4-5. The district court credited this evidence, and denied certi-
fication under Rule 23(b)(2) in part because of its finding that the injunc-
tive relief sought by a "statistically insignificant" number of plaintiffs did
not predominate over non-injunctive and non-declaratory relief. Id. at 9.
THORN v. JEFFERSON-PILOT LIFE INS. 31
V.
For the foregoing reasons, we affirm the district court’s denial of
Appellants’ motion for class certification and remand for further pro-
ceedings on Appellants’ individual claims.
AFFIRMED AND REMANDED
MICHAEL, Circuit Judge, dissenting:
The majority’s decision to affirm the denial of class certification
means that Jefferson-Pilot Life Insurance Company will never be held
to account if it discriminated against 1.4 million African-Americans
by charging them higher premiums for industrial life insurance than
it charged whites. This case makes sense only as a class action
because the liability issues are complex and the maximum loss suf-
fered by any class member "is at most, hundreds of dollars." J.A. 280.
My point is hardly "puzzling." See ante at 23-24 n.20. As the
Supreme Court has said, "The policy at the very core of the class
action mechanism is to overcome the problem that small recoveries
do not provide the incentive for any individual to bring a solo action
prosecuting his or her rights." Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 617 (1997).
The majority errs by accepting at face value Jefferson-Pilot’s argu-
ment that class certification is precluded because the Company’s stat-
ute of limitations defense raises questions that must be decided
individually for every class member. The facts tendered at the class
certification stage reveal that the Company has at most a defense that
the policyholders had constructive knowledge of their injury within
the limitations period. The constructive knowledge theory is based
solely on the assertion of the Company’s expert that there was wide-
spread publicity, both nationally and in the Southeast, about the dual-
rate practices of white-owned insurance companies. The record, how-
ever, does not contain any facts to suggest that there are individual
differences in what class members "could have known" about the
dual-rate practices. Thus, the limitations defense can be determined
on a classwide basis, and the Rule 23(b)(3) requirement that common
issues predominate over any individual ones is met. For this reason,
I respectfully dissent.
32 THORN v. JEFFERSON-PILOT LIFE INS.
I.
The facts alleged, if proven true, portray a grievous wrong against
well over a million African-Americans. From the early 1900s until the
mid-1970s, Jefferson-Pilot (or its predecessors) charged African-
Americans higher premiums than similarly situated whites for indus-
trial life insurance. These policies have a low face value (often less
than $500), with premiums collected by company agents at the home
of the policyholder on a weekly or monthly basis. The Company sold
these policies to 1.4 million African-Americans in Georgia, North
Carolina, South Carolina, and Virginia. (Ninety percent of the policies
were sold in North Carolina.) In 2000 Jefferson-Pilot declared all
active industrial life policies to be paid up, and no further premiums
were collected. About 45,000 of the policies were still in effect as of
2004. The plaintiffs allege the Company targeted occupations and
geographic areas known to have a high concentration of African-
Americans. More specifically, the plaintiffs allege that the Company
"targeted low income, impoverished, and disadvantaged African-
Americans who typically were unsophisticated with respect to life
insurance." J.A. 29 ¶ 17. Finally, it is alleged that African-Americans
did not know and could not have reasonably known they were
charged higher premiums than whites because the Company engaged
in a pervasive scheme to conceal this practice. These discriminatory
practices, the plaintiffs allege, violate the Civil Rights Act, 42 U.S.C.
§§ 1981-1982. The complaint requests injunctive relief, equitable res-
titution, and punitive damages. In its defense, Jefferson-Pilot main-
tains that the higher rates charged to African-Americans were based
on mortality tables. The Company also asserts the statute of limita-
tions as a defense.
The named plaintiffs seek to represent a class of 1.4 million
African-Americans who bought industrial life insurance from
Jefferson-Pilot. When the plaintiffs moved for class certification, a
key issue was whether the Company’s statute of limitations defense
required individualized determinations. At the certification stage, the
parties offered the following evidence concerning the nature and mer-
its of the Company’s limitations defense. Four potential class mem-
bers were deposed, and none had actual knowledge of his or her
injury outside the limitations period. In addition, both sides submitted
expert reports from historians about the availability of public informa-
THORN v. JEFFERSON-PILOT LIFE INS. 33
tion concerning discriminatory life insurance rates. The plaintiffs’
expert, Robert J. Norrell, Ph.D., opined that past practices of race dis-
crimination in life insurance underwriting did not become common
knowledge among any subset of the American public prior to the year
2000, when this action was filed. Dr. Norrell bases his conclusion on
(1) the failure of Jefferson-Pilot and similar companies to inform poli-
cyholders of their discriminatory practices and (2) the absence of dis-
cussion of the issue in widely read historical literature on American
race relations. Although there were some government reports, law
review articles, and limited media coverage concerning discrimina-
tory pricing, Norrell found no evidence to show widespread public
awareness of the issue. On the other hand, Jefferson-Pilot’s expert,
Henry M. McKiven, Ph.D., offered the opinion that publicity about
discriminatory pricing was widespread nationally and in the South-
east. Dr. McKiven says that this information was available in books,
scholarly journals, newspapers, and magazines. He also says that
black-owned insurance companies, civil rights organizations, and
unions spread the word about discrimination by white-owned insur-
ance companies. McKiven opined that an African-American living in
the Southeast could have become aware of the discriminatory pricing.
Relying on McKiven’s report, the district court found that Jefferson-
Pilot’s limitations defense would require individualized inquiry for
each class member. It therefore held that our cases of Broussard v.
Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998),
and Gunnells v. Healthplan Services, Inc., 348 F.3d 417 (4th Cir.
2003), preclude class certification. The plaintiffs appeal this ruling.1
1
Contrary to the district court’s view, Broussard and Gunnells are of
little relevance here because those cases presented significant individual
issues while this case does not, as I explain in part II. The two cases are
worth discussing, however, because the district court’s restrictive reading
of them led it to the erroneous conclusion that the Fourth Circuit is quick
to deny class certification whenever individual issues are present. Both
Broussard and Gunnells, however, are faithful to the text of Rule 23 and
allow class certification when questions "common to members of the
class predominate over any questions affecting only individual mem-
bers." Fed. R. Civ. P. 23(b)(3).
In Broussard a class of former and current Meineke muffler shop fran-
chisees was awarded judgment against the franchisor on various claims,
including breach of contract, fraud, and negligence. We reversed certifi-
34 THORN v. JEFFERSON-PILOT LIFE INS.
II.
A.
The district court found that Jefferson-Pilot’s statute of limitations
defense requires individualized proof as to each class member. This
cation of the class because none of Rule 23(a)’s four prerequisites was
satisfied. The lack of adequate representation was our main reason for
reversal, but we also found that the central issues, including whether the
statute of limitations was tolled, presented individual questions. We said
in Broussard that "tolling the statute of limitations on each of [the] plain-
tiffs’ claims depends on individualized showings" because the "represen-
tations made to each franchisee varied considerably." 155 F.3d at 342.
After concluding that the limitations question was not common to the
class, we added the following statement: "As the Ninth Circuit has recog-
nized, when the defendant’s ‘affirmative defenses (such as . . . the statute
of limitations) may depend on facts peculiar to each plaintiff’s case,’
class certification is erroneous." Id. (quoting In re Northern Dist. of Cal.
Dalkon Shield IUD Prods. Liab. Litig., 693 F.2d 847, 853 (9th Cir.
1982)). At least two courts of appeals have suggested that in making this
statement we were flirting with a per se rule against class certification
when individual affirmative defense issues are presented. See Waste
Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 n.4 (1st Cir. 2000);
In re Linerboard Antitrust Litig., 305 F.3d 145, 161 (3d Cir. 2002). In
the same vein, the district court here read the Broussard statement to
mean "[t]he Fourth Circuit has specifically found that individual issues
preclude class treatment." J.A. 292. Although the statement has under-
standably grabbed attention, it was not our holding. Indeed, if it had
been, it would have conflicted with Rule 23(b)(3), which allows class
action status for cases presenting individual questions so long as com-
mon questions predominate. Our holding in Broussard was simply that
the class did not meet Rule 23(a)’s requirements.
In Gunnells purchasers and beneficiaries of a defunct multi-employer
health plan sued the claims administrator for breach of duty and the
insurance agents who marketed the plan for negligence, fraud, and
breach of contract. We reversed certification of a class action against the
insurance agents because the claims of the plaintiffs and the affirmative
defenses of the agents, taken together, presented too many issues requir-
ing individualized inquiry. Gunnells, 348 F.3d at 434-38. Common ques-
tions did not predominate.
In sum, neither Broussard nor Gunnells stands for the proposition that
the existence of individual issues precludes class certification when com-
mon issues predominate.
THORN v. JEFFERSON-PILOT LIFE INS. 35
finding is erroneous as a matter of law, and it misled the court to con-
clude that Rule 23(b)(3)’s predominance requirement cannot be met
here. The record shows that the limitations defense presents not indi-
vidualized questions, but common ones that can be answered on a
classwide basis. If the district court had undertaken the rigorous anal-
ysis of the record required by Gariety v. Grant Thornton, LLP, 368
F.3d 356 (4th Cir. 2004), it could not have concluded that the statute
of limitations defense presents individualized questions.
In Gariety we noted that "Rule 23(b)(3) on its face requires [a dis-
trict] court to ‘find[ ] that the questions of law or fact common to
members of the class predominate over questions affecting only indi-
vidual members.’" Id. at 365 (emphasis and second alteration in origi-
nal). In making the necessary findings, a district court is not required
"simply to accept the [parties’] allegations at face value," for "some-
times it may be necessary . . . to probe behind the pleadings." Id. at
365-66 (citation omitted). Otherwise, there would be nothing to pre-
vent parties from making unsupported allegations in order "to bolster
or undermine a finding of predominance." Id. at 365 (citation omit-
ted). In all events, a district court has the responsibility "for taking a
‘close look’ at relevant matters" and "for conducting a ‘rigorous anal-
ysis’ of such matters" before making the findings required by Rule
23(b)(3). Id. (citation omitted). We recognized in Gariety that find-
ings made under Rule 23 may "overlap [with] findings that will have
to be made on the merits." Id. at 366. This is permissible, we said,
because findings made to resolve class certification questions do not
bind the ultimate decisionmaker’s finding on the merits. Although the
district court in this case went beyond the pleadings and examined the
report of the defense expert, the court accepted too readily the
expert’s unsupported conclusion that it was necessary to make an
individual inquiry about each class member’s access to the available
information. The "rigorous analysis" required by Gariety demon-
strates that the limitations defense can be determined on a classwide
basis.
Jefferson-Pilot raises both actual and constructive knowledge as the
basis for its limitations defense, and it argues that neither theory is
capable of classwide adjudication. I disagree. With respect to the
Company’s actual knowledge theory, there is no evidence of actual
knowledge to support the district court’s finding that individualized
36 THORN v. JEFFERSON-PILOT LIFE INS.
inquiry is necessary to adjudicate the limitations defense. The Com-
pany deposed four class representatives, and their testimony reveals
that not a single one knew Jefferson-Pilot charged African-Americans
higher premiums because of their race.2 The Company did not seek
to establish actual knowledge by deposing additional African-
American policyholders in the four states where it sold industrial life
policies. In addition, the expert’s report cites no evidence to show that
any class member actually knew of discriminatory pricing. Thus, the
Company has utterly failed to demonstrate that individualized inquiry
into actual knowledge is necessary because, as the record stands, no
one had actual knowledge. By accepting Jefferson-Pilot’s actual
knowledge theory at face value, the district court allowed the Com-
pany to use an unsupported allegation "to [forestall] a finding of pre-
dominance." See Gariety, 368 F.3d at 365.
Jefferson-Pilot’s more plausible argument is that the class members
had constructive knowledge of the challenged conduct outside the
limitations period. A federal claim accrues under the constructive
knowledge theory when the plaintiff "possessed sufficient facts to . . .
have reason to know of the alleged injury." Brooks v. City of Winston-
Salem, N.C., 85 F.3d 178, 181 (4th Cir. 1991). The claim accrues, in
other words, when the plaintiff "should have known (or been put on
inquiry notice of) [his] injury." Thompson v. Metro. Life Ins. Co., 149
F. Supp. 2d 38, 52 n.12 (S.D.N.Y. 2001). The district court found that
the Company’s expert "presented a strong prediction that there were
numerous sources of evidence available during the relevant period
which could have alerted class members to the fact that the practices
now complained of were common in the industry." J.A. 296 (empha-
2
The majority contends that "[t]he very fact that [the plaintiffs] ask us
to inspect their individual deposition testimony . . . reveals that resolution
of the statute of limitations defense will . . . require the trier of fact to
examine the particular circumstances of each individual class member."
Ante at 16. The majority is mistaken. Inspection of the deposition testi-
mony is necessary under Gariety, which requires a district court to take
a close look at the evidence proffered at the certification stage "to iden-
tify the nature of the issues that actually will be presented at trial." Gari-
ety, 368 F.3d at 365 (quoting Fed. R. Civ. P. 23 advisory committee
notes). This inquiry assists the court in deciding whether a claim or
defense actually presents common questions.
THORN v. JEFFERSON-PILOT LIFE INS. 37
sis added). To begin with, this finding does not incorporate the correct
legal standard, which is whether plaintiffs "ha[d] reason to know,"
Brooks, 85 F.3d at 181, or "should have known," Thompson, 149 F.
Supp. 2d at 52 n.12, of their injury. More importantly, the finding,
which is based entirely on the report of the Company’s expert, does
not establish that adjudication of the constructive notice limitations
defense requires individualized proof.3
Dr. McKiven, Jefferson-Pilot’s expert, asserts there was "wide-
spread publicity," both nationally and regionally, about the race-based
"pricing differential." J.A. 82, 101. This assertion suggests that the
same kind of information was available classwide. In his report
McKiven identifies about forty newspaper and magazine articles and
about twenty books, scholarly articles, and reports published over a
ninety-five-year period (1906-2001) that discussed dual rates or race
discrimination in the sale of insurance. Three of the magazines, Time
(one article in 1964), Ebony (articles in 1946, 1954, 1969, and the
early 1970s), and Black Enterprise (articles in 1973, 1975, and 1977),
have national circulation. A few of the cited newspaper articles
appeared in the national press, and a dozen or so articles appeared in
southeastern newspapers.
Dr. McKiven also refers to other information on the issue. Black-
owned insurance companies encouraged their agents to speak out in
churches and in their sales calls about the race-based pricing of white-
owned companies. The Congress of Industrial Organizations issued
results of a survey indicating that African-Americans did not receive
3
The majority suggests my analysis ignores that the plaintiffs have the
burden of establishing that the requirements of Rule 23 are satisfied. See
ante at 18. To the contrary, my analysis places the burden of producing
class certification facts, or pointing out the lack of such facts, in proper
context. Here, once the plaintiffs offered facts sufficient to show that
there are common questions that predominate, the burden shifted to
Jefferson-Pilot to rebut those facts. See 3 Alba Conte & Herbert New-
berg, Newberg on Class Actions § 7:23, at 74-75 (4th ed. 2002). The
Company’s evidence not only failed to show that its statute of limitations
defense presented individual questions, its evidence indicated just the
opposite — that the defense presents common questions. The Company’s
evidence thus affirmatively assists the plaintiffs in their burden to show
that the action is proper for class certification.
38 THORN v. JEFFERSON-PILOT LIFE INS.
equal treatment from white-owned insurance companies. The NAACP
and the Urban League published a few articles in their national maga-
zines addressing the dual-rate practices. Finally, at three congressio-
nal hearings testimony was presented on the issue. All of these efforts
had a broad regional or national focus.
Dr. McKiven thus concludes that "widespread publicity about
[higher life insurance rates for African-Americans] existed in the
Southeast" and nationally. J.A. 82. Tellingly, he offers no facts in his
twenty-page report to suggest that there are individualized differences
in what the class members "could have" known about the dual-rate
practices. In other words, McKiven does not say that there was any
variation among individual class members as to what they could have
known. This lack of variation makes classwide treatment appropriate.
This case, then, is like the case presented on appeal in In re Monu-
mental Life Insurance Co., 365 F.3d 408 (5th Cir.), cert. denied, 125
S. Ct. 277 (2004), where the court held that the insurance companies’
statute of limitations defense — whether African-American plaintiffs
had constructive knowledge that they were discriminated against in
the purchase of industrial life insurance — could be decided on a
classwide basis. Like Jefferson-Pilot, the insurance companies in the
Monumental appeal relied on "widespread media reporting" that con-
veyed the same information about the issue in both national and local
markets. Id. at 421. The majority’s efforts to distinguish the Fifth Cir-
cuit’s opinion in Monumental fail. The majority says:
Jefferson Pilot does not argue [as did the defendants in Mon-
umental] that the district court should hold that widespread
media treatment of the issue provided a reasonable person
with sufficient information to give him either actual or con-
structive knowledge. Instead, it argues that individual class
members were actually exposed to sufficient information to
give them either actual or constructive knowledge of Jeffer-
son Pilot’s dual-rate practices outside the limitations period.
Ante at 20. Thus, the majority concludes that "the district court here
must conduct individual inquiry into the information each class mem-
ber actually possessed to determine whether each class member had
actual or constructive knowledge of Jefferson Pilot’s dual-rate prac-
THORN v. JEFFERSON-PILOT LIFE INS. 39
tices." Ante at 20. The problem with this argument is that Jefferson-
Pilot has nothing but widespread media treatment and publicity to rely
on for its defense that, in the majority’s words, class members were
"exposed to sufficient information to give them either actual or con-
structive knowledge." Ante at 20. Jefferson-Pilot’s expert said the
information about the discrimination was "widespread," J.A. 82, and
he offers nothing to suggest that the information available varied
among class members. The Company has thus offered nothing to
show that the limitations defense turns on facts that are specific or
individual to each class member. The Company has no choice but to
proceed like the insurance companies in the Monumental appeal,
which relied on "the national media market" and local publications
(including newspapers), with both arenas giving the discrimination
issue consistent treatment. Because there was no attempt to "geo-
graphically splic[e] constructive notice," the Fifth Circuit had "no dif-
ficulty concluding that whether plaintiffs were provided constructive
notice is an issue that can be decided on a classwide basis." Monu-
mental, 365 F.3d at 421. The same reasoning should control here.
The Fifth Circuit remanded the Monumental case to the Eastern
District of Louisiana for further proceedings on class certification.
The plaintiffs then renewed their motion to certify a class against two
insurance companies that administrated industrial life insurance poli-
cies issued by more than 280 companies. In response the insurance
companies offered evidence showing "regional differences in media
treatment" of discriminatory pricing and an expert who, according to
the Louisiana district court, "proved that whether and when any indi-
vidual would have learned about industrial life insurance pricing prac-
tices depends on where they lived, the time period, what newspapers
and articles they read, and what oral conversations they had in local
churches or through other social networks." In re Indus. Life Ins.
Litig., MDL No. 1371 and consolidated MDLs, slip op. at 14 (E.D.
La. Jan. 11, 2006) (order denying class certification) (internal quota-
tion marks omitted and emphasis added). As a result, the district court
in the Monumental remand concluded that individualized proof on the
limitations issue was required and that Rule 23(b)(3)’s predominance
requirement had not been satisfied. Id. at 14-15.
What the defense expert "proved" on remand in Monumental
underscores what is lacking in this case. Here, the evidence concern-
40 THORN v. JEFFERSON-PILOT LIFE INS.
ing the information about the dual-rate practices focuses on its wide-
spread dissemination rather than on whether the information available
varied from place to place or from time period to time period.
Accordingly, the district court’s finding here — that "numerous
sources available . . . could have alerted class members" to the dis-
criminatory pricing, J.A. 296 — does not establish that individualized
inquiry is necessary. I would not, however, foreclose the possibility
of the district court’s later reconsideration of the issue of whether the
limitations defense presents individual questions. If discovery on the
merits was to show that information about the dual-rate practices var-
ied materially from place to place or from time period to time period
in the four relevant states, then the issue of any class certification
could be revisited by the district court.
In sum, as the record now stands, the statute of limitations defense
presents issues that are common to the class. In addition, the plain-
tiffs’ direct case involves a collective or common claim that the Com-
pany engaged in a single, sustained course of intentional
discrimination against African-American policyholders by charging
them higher rates for industrial life insurance than similarly situated
whites. Rule 23(b)(3)’s requirement that common issues predominate
is therefore satisfied.
B.
Rule 23(a)’s prerequisites for a class action, numerosity, common-
ality, typicality, and adequacy of representation are also satisfied in
this case. See Fed. R. Civ. P. 23(a). First, there is no dispute that the
proposed class meets the numerosity requirement. Second, as I have
just demonstrated, the plaintiffs’ affirmative case of discrimination
and Jefferson-Pilot’s statute of limitations defense both present ques-
tions that are common to the class. Third, because the claims of the
representative parties are the same as the claims of the class, the typi-
cality requirement is satisfied. Fourth, the district court concluded that
any potential representational conflicts could be avoided by limiting
the class to "insureds," and "if necessary, by subclassing." J.A. 294.
Thus, "the representative parties will fairly and adequately protect the
interests of the class." Fed. R. Civ. P. 23(a)(4).
THORN v. JEFFERSON-PILOT LIFE INS. 41
***
The prerequisites of Rule 23(a) and the predominance requirement
of Rule 23(b)(3) have been met. I would therefore vacate the district
court’s order denying class certification. In its order denying class
certification, the district court briefly mentioned "[a]dditional Rule
23(b)(3) [c]oncerns," J.A. 303, relating to whether the class action
method would be superior in this case. Because these concerns were
fueled in large measure by the district court’s erroneous finding that
the statute of limitations defense could not be resolved on a classwide
basis, I would remand to allow the district court to reconsider the
Rule 23(b)(3) superiority issues.