Arthurmiller_2
This Arthur Miller never knew Marilyn Monroe.  We think.

Blawgletter recalls our first law school class.  Arthur Miller — then the reporter for the advisory committee on the Federal Rules of Civil Procedure — boasted (probably in a gangster pinstripe suit) that we could have our stinkin’ substantive law if we liked it so freakin’ much but that he could whip us at least most of the time if he had procedure on his side.  Truer words we’ve seldom heard.

The Sixth Circuit proved the professor’s bragadocia today by affirming a class certification order.  The complaint charged CenturyTel with misleading customers by calling in-home wire maintenance a mere "non-regulated service" on their bills.  The deceptive designation violated the federal Communications Act, the plaintiffs alleged.  (Leave to one side their real gripe:  that in-home wire maintenance amounts to buying insurance for something that’ll never in a billion jillion years happen — a rat chews through a wire and severs your landline connection to the outside world.)

The propriety of certifying the class turned on the effect of the fact that some class members — perhaps all of them — actually ordered the (near-useless) in-home wire maintenance.  (Much like the Best Buy and Circuit City customers who pay outrageous premiums to guard against the infinitesimal chance that their spanking new computer will self-destruct upon first booting.)  The court resolved the problem of individual proof by classifying the issue of consent as going to damages instead of liability, thus staving off certain death for the case.  Beattie v. CenturyTel, Inc., No. 06-1565 (6th Cir. Dec. 18, 2007).

Contrast that ruling with the Supreme Court of Texas’s 14-and-one run of killing class actions on procedural grounds.  The court just interprets the Texas rule on class certification as almost impossible-to-satisfy, in spite of its near identity to the federal rule from which it sprang.

Procedure trumps substance.  At least in the Lone Star state.  Whose name means friendship.  Except for class actions.

Barry Barnett

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