William Gray, III v. Hearst Communications, Incorpo

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 8:08-cv-01833-GRA Copies to all parties and the district court/agency. [998663467].. [10-1302]

Appeal: 10-1302

Document: 40

Date Filed: 08/25/2011

Page: 1 of 17

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1302

WILLIAM
B.
GRAY,
III,
d/b/a
Greenwood
Clinic
of
Chiropractic, individually and for the benefit and on
behalf of all others similarly situated; B AND K SERVICES
INCORPORATED,
Plaintiffs – Appellees,
and
STEVE WALL AND ASSOCIATES LLC, f/k/a SC Insurance Services
LLC, d/b/a Morgan and Associates Incorporated; UNLIMITED
SERVICES OF GREENWOOD INCORPORATED, individually and for
the benefit and on behalf of all others similarly situated,
Plaintiffs,
v.
HEARST
COMMUNICATIONS,
INCORPORATED;
HOLDINGS CAROLINA INCORPORATED,

WHITE

DIRECTORY

Defendants – Appellants,
and
TALKING PHONE BOOK; SAIA HOLDINGS LLC; SAIA PUBLISHING
COMPANY;
MICHAEL
BROWN;
WHITE
DIRECTORY
HOLDINGS
PENNSYLVANIA INCORPORATED; WHITE DIRECTORY OF CAROLINA,
INCORPORATED,
Defendants.

Appeal from the United States District Court for the District of
South Carolina, at Anderson.
G. Ross Anderson, Jr., Senior
District Judge. (8:08-cv-01833-GRA)

Appeal: 10-1302

Argued:

Document: 40

Date Filed: 08/25/2011

December 7, 2010

Page: 2 of 17

Decided:

August 25, 2011

Before WILKINSON and SHEDD, Circuit Judges, and Norman K. MOON,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Senior Judge Moon joined.
Judge Wilkinson
wrote a dissenting opinion.

ARGUED: Alan Mansfield, GREENBERG TRAURIG, LLP, New York, New
York, for Appellants.
Daniel S. Haltiwanger, RICHARDSON,
PATRICK, WESTBROOK & BRICKMAN, LLC, Barnwell, South Carolina,
for Appellees.
ON BRIEF: Stephen L. Saxl, William A. Wargo,
GREENBERG TRAURIG, LLP, New York, New York; R. Bruce Shaw,
Stephen G. Morrison, NELSON MULLINS RILEY AND SCARBOROUGH, LLP,
Columbia, South Carolina, for Appellants.
Terry E. Richardson,
Jr., Christopher J. Moore, RICHARDSON, PATRICK, WESTBROOK &
BRICKMAN, LLC, Barnwell, South Carolina; Jon E. Newlon, MCCRAVY,
NEWLON & STURKIE LAW FIRM, P.A., Greenwood, South Carolina, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

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SHEDD, Circuit Judge:
Hearst

Communications,

Inc.

and

White

Directory

Holdings Carolina, LLC (collectively “White Directory”) appeal
the district court’s order conditionally certifying class action
claims

against

them

for

breach

of

contract,

breach

of

the

implied covenant of good faith and fair dealing, and unfair and
deceptive trade practices. For the following reasons, we affirm
the certification order.
These claims, brought by William B. Gray, III, d/b/a
Greenwood Clinic of Chiropractic, and B & K Services, Inc., on
behalf of themselves and other similarly situated advertisers
(collectively “Gray”), stem from Gray’s purchase of advertising
in

The

Talking

Phone

Book

telephone

directories

which

are

published and distributed by White Directory in various markets
throughout

South

Carolina.

Gray

alleges

White

Directory

solicited the class members to enter into advertising contracts
through

the

Directory’s
Directory

use

of

superior
knowingly

concerted

sales

distribution
misrepresented

efforts

coverage,
its

touting

but

actual

that

White
White

distribution,

never made a full distribution as promised, and intentionally
sought to conceal this deception.
Gray initially asserted seven causes of action, but
eventually sought class certification on only three theories of
relief: breach of contract, breach of the implied covenant of
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Appeal: 10-1302

good

Document: 40

faith

practices.

and

Date Filed: 08/25/2011

fair

After

dealing,

a

and

hearing

Page: 4 of 17

unfair

on

the

and

deceptive

motion

for

trade
class

certification, the district court entered an order conditionally
certifying all three class claims. White Directory timely filed
a

petition

for

review.

We

review

the

class

certification

decision for abuse of discretion. Brown v. Nucor Corp., 576 F.3d
149, 152 (4th Cir. 2009).
Although

White

Directory

raises

several

issues

on

appeal, the primary issue is whether the district court erred in
finding that Gray’s proposed class action claims satisfy the
commonality
Civil

and

predominance

Procedure

23.

In

requirements

granting

of

Federal

certification,

the

Rule

of

district

court determined that each of Gray’s claims ultimately hinges on
whether he can establish a distribution obligation, which is a
question that the district court found is capable of classwide
proof and predominates over any individual issues.
Federal

Rule

of

Civil

Procedure

23

We agree.

establishes

the

standard for class certification, and a proposed class must meet
the requirements of both Rule 23(a) and Rule 23(b). First, a
class

action

“must

comply

established

in

Rule

23(a):

commonality

of

factual

and

with

the

four

(1)

numerosity

legal

issues;

of
(3)

prerequisites
parties;

(2)

typicality

of

claims and defenses of class representatives; and (4) adequacy
of representation.” Gunnells v. Healthplan Services, Inc., 348
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F.3d 417, 423 (4th Cir. 2003) (quoting Fed. R. Civ. P. 23(a)).
Second, the class action must also fall within one of the three
categories

established

in

Rule

23(b).

Id.

Here,

Gray

seeks

certification of his claims under Rule 23(b)(3), which requires
proof that “the questions of law or fact common to class members
predominate

over

any

questions

affecting

only

individual

members, and that a class action is superior to other available
methods

for

controversy.”

fairly
Fed.

R.

and
Civ.

efficiently
P.

23(b)(3).

adjudicating
A

plaintiff

the

seeking

class certification bears the burden of proving the proposed
class complies with the requirements of Rule 23. Windham v. Am.
Brands, Inc., 565 F.2d 59, 65 n.6 (4th Cir. 1977) (en banc).
Commonality

is

generally

established

when

a

plaintiff’s claims have “questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). As the Supreme Court recently
clarified, in order to satisfy the commonality requirement, the
plaintiff

must

“demonstrate

that

the

class

members

‘have

suffered the same injury,’” Wal-Mart Stores, Inc., v. Dukes, 131
S. Ct. 2541, 2551 (2011) (quoting Gen. Tel. Co. of Southwest v.
Falcon, 457 U.S. 147, 156 (1982)), and that the claim “depend[s]
upon

a

common

resolution

–

contention”

which

means

that

that

“is

capable

determination

of

of

classwide

its

truth

or

falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke,” id.
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“In a class action brought under Rule 23(b)(3), the
commonality requirement of Rule 23(a)(2) is subsumed under, or
superseded by, the more stringent Rule 23(b)(3) requirement that
questions common to the class predominate over other questions.”
Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 n.4 (4th Cir.
2001) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 609
(1997)) (internal quotation marks omitted). The Rule 23(b)(3)
predominance
23(a)(2)’s

requirement
commonality

is

“far

more

requirement,

demanding”

and

the

than

Rule

"predominance

inquiry tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation.” Amchem Prods., 521
U.S. at 623. In other words, to satisfy Rule 23(b)(3), “[c]ommon
questions

must

individual
achieve

predominate

members;

.

economies

promote . . .

.

of

uniformity

over

.

any

[such

time,
of

questions

that]

a

effort,

decision

as

affecting

class
and

to

action

only
would

expense,

persons

and

similarly

situated.” Id. at 615 (internal quotation marks omitted).
White

Directory

initially

argued

the

contracts

at

issue did not include an express distribution term and therefore
contained
However,
contracts

no

contractual

during
do

oral

contain

obligation

argument,
a

White

distribution

regarding

distribution.

Directory

conceded

obligation,

and

the

further

conceded the distribution plan or scheme is the same for all

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advertisers

in

Date Filed: 08/25/2011

any

given

coverage

Page: 7 of 17

area.

Thus,

there

is

no

dispute that a uniform distribution obligation exists.
Having

conceded

the

existence

of

a

uniform

distribution obligation, White Directory’s remaining objections
to class certification carry little weight. White Directory’s
insistence

that

there

can

be

no

proof

of

a

distribution

obligation absent a distribution number, which the contracts do
not contain, is simply a variation of its now-rejected argument
that the contracts contain no distribution obligation at all.
Likewise, because White Directory concedes it has a distribution
obligation under the contract, the contracts’ integration clause
and North Carolina’s parol evidence rule 1 do not bar the use of
extrinsic evidence to determine what that obligation is. See,
e.g., Edwards v. Hill, 703 S.E.2d 452, 456 (N.C. Ct. App. 2010)
(noting extrinsic evidence may be used to explain the terms and
the parties’ expressed intentions in an integrated agreement).
In

fact,

during

distribution
course

of

oral

argument

requirement
distributing

White

under

the

books.”

Directory

contracts

Evidence

of

described

as
such

its

its

“normal

course

of

dealings and course of performance is permissible to explain or
supplement contractual terms. See Phelps v. Spivey, 486 S.E.2d
1

The parties agree that North Carolina law applies to
Gray’s breach of contract claim pursuant to the choice of law
provision in the contracts.

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Date Filed: 08/25/2011

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226, 228-29 (N.C. Ct. App. 1997) (citing N.C. Gen. Stat. § 25-2202).
Finally, White Directory misses the mark by focusing
on the individualized nature of the different representations
that may (or may not) have been made in the negotiations between
each advertiser and White Directory. As we already discussed:
White Directory concedes (and common sense dictates) that the
normal

course

advertisers

of

in

a

distribution
given

is

the

market.

same

for

Accordingly,

all
the

directory
level

of

distribution does not vary based on what advertisers pay.
It

is

this

uniform

distribution

practice

which

distinguishes Wal-Mart. In Wal-Mart, the putative class sought
to prove Wal-Mart had a general policy of discrimination that
guided

millions

of

allegedly

discriminatory

employment

decisions. However, in Wal-Mart there was a question of whether
a general policy concerning such decisions existed and whether
that

general

policy

applied

to

all

hiring

decisions.

Here,

unlike Wal-Mart, there is no dispute that a uniform policy (or
obligation) exists or that such a uniform policy applies to all
plaintiffs;
extent

White

White

Directory

representations
distribution

Directory

argues

regarding

obligation

concedes
its

sales

distribution
in

the

both.

to

representatives

that

contract,

Moreover,

differed
evidence

made

from
of

the

the

those

representations – unlike evidence of White Directory’s course of
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dealings

Date Filed: 08/25/2011

concerning

distribution

Page: 9 of 17

-

would

be

barred

by

the

contract’s integration clause.
Thus, although White Directory’s sales representatives
may have had broad discretion to make different sales pitches to
different

advertisers,

they

could

regarding

distribution

not

obligations

make

which

binding

differed

promises

from

that

reflected in the contract. And, even if the parties may have had
different

expectations

regarding

other

variables

(e.g.

size,

color, location, price, etc.), the common predominating question
focuses on whether White Directory fulfilled that distribution
obligation.
To summarize, we think the district court was correct:
the

common

question

regarding

White

Directory’s

distribution

obligation predominates over any individual issues because the
putative class members all assert injury from the same action
(i.e.

failure

distribution
Directory

by

White

practice),

breached

its

Directory
and

to

follow

determination

standard

of

distribution

its

standard

whether

White

obligation

will

resolve in one stroke an issue that is central to the validity
of the class members’ breach of contract claims. In addition,
the

district

extrinsic

court

evidence

distribution

is.

correctly
to

found

establish

Because

the

what
same

that
that

Gray

may

normal

distribution

rely

on

course

of

obligation

applies to every advertiser within the same geographic market
9

Appeal: 10-1302

area,

Document: 40

Date Filed: 08/25/2011

evidence

White

of

Directory’s

Page: 10 of 17

distribution

obligation

would apply to all such advertisers. Whether White Directory
reasonably met that obligation becomes a common question of fact
for the jury to decide. 2
Accordingly,

we

affirm

the

district

court’s

certification of the class. 3
AFFIRMED

2

We have reviewed Gray’s breach of a good faith and fair
dealing and unfair trade practices claim and believe he
satisfied his burden of establishing commonality as to those two
claims. Like the breach of contract claim, both of the remaining
claims center on the distribution obligation.
3

White Directory also argues that the district court abused
its discretion by (a) certifying Gray’s class on a conditional
basis, (b) failing to conduct a rigorous analysis of the record,
and (c) finding the class satisfied the superiority, typicality,
and adequacy requirements of Rule 23(b)(3). We have reviewed the
record and find no abuse of discretion by the district court on
these matters.

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WILKINSON, Circuit Judge, dissenting:
This

case

concerns

whether

advertisers

pursuing

a

breach of contract class action met the commonality requirement
of Rule 23(b)(3) for class certification, that “questions of law
or fact common to class members predominate over any questions
affecting only individual members.”
(emphasis added).
satisfied,

but

Plaintiffs contend that this standard was

an

their position.

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

irresolvable

paradox

lies

at

the

heart

of

On the one hand, plaintiffs insist that there

is commonality due to a uniform distribution obligation in the
See ante, at 8.

contracts.
concede

that

extrinsic

Yet on the other, they nonetheless

evidence,

which

inevitably

will

be

individualized, is permissible and necessary to establish what
the normal course of distribution even was.
Because

the

integrated

contracts

in

fact

See ante, at 9.
lack

any

uniform

distribution term to supply the necessary commonality of law or
fact, I respectfully dissent.

I.
There

is

no

uniform

distribution

policy

in

contracts for the defendants to have allegedly breached.
contracts

would

be

the

logical

place

to

look

for

such

the
The
an

obligation and if it were there, the certification could readily
be affirmed.

I have looked high and low for such a distribution

11

Appeal: 10-1302

term,

Document: 40

but

cannot

Date Filed: 08/25/2011

find

one

for

Page: 12 of 17

the

simple

reason

that

contracts in this breach of contract action do not have one.

the
It

is the contracts that would have supplied a ready commonality
for something that now is anybody’s guess.
The
that

majority’s

“during

oral

conclusion

argument,

depends

White

on

its

Directory

contracts do contain a distribution obligation.”

assertion

conceded

the

Ante, at 6.

But concessions at oral argument, if made, are always to be
taken cautiously and there remains no provision in the contract
in which any distribution obligation is embodied.
So when and how was what to be distributed to whom?
Plaintiffs

fail

to

cite

any

language

from

the

contracts

to

demonstrate that any such distribution obligation exists within
them.

They don’t do so because they can’t -- such language is

nowhere to be found in the contracts themselves.

II.
To

establish

demonstrate

its

individualized

a

breach

extrinsic

distribution
therefore

evidence

of

requirement

requires
exactly

the

and

resort
kind

to

deemed

insufficient to support class certification by the Supreme Court
in Wal-Mart under the even lower threshold of Rule 23(a)(2).
See Fed. R. Civ. P. 23(a)(2) (requiring commonality of questions
of

law

or

fact,

but

not

requiring
12

predominance

of

those

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Date Filed: 08/25/2011

Page: 13 of 17

questions as in Rule 23(b)(3)); Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 2541 (2011).

In Wal-Mart, the Court was troubled by

the lack of proof of a uniform discrimination policy.
in

there

Hearst,

is

no

distribution

term

in

the

Likewise,
integrated

contracts speaking to what appellees contend is the common issue
demonstrating

breach

of

contract.

Without

a

contract

term

directly addressing the mechanics of distribution or the exact
number of phone books to be distributed, plaintiffs must turn to
individualized

extrinsic

evidence

to

establish

an

implied

distribution term.

A.
To

compensate

for

the

contract’s

silence

on

distribution and construct what might pass for a distribution
policy,

plaintiffs

extrinsic

evidence

practices.

invite

the

regarding

See ante, at 9.

district
White

court

to

Directory’s

resort

to

distribution

But by focusing on distribution

practices, and not on the representations made to clients with
respect to their individual contracts, plaintiffs are the ones
that

“miss[]

distribution

the

still

mark.”
begs

Ante,

the

at

critical

8.

Any

question

practice
of

what

of

that

distribution number was or whether the clients had any uniform
expectation
distribution

of

what

term

in

it
the

would

be.

contracts,
13

Absent
uniformity

an

explicit
in

actual

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distribution tells us nothing about the reliance interests of
individual clients that could form the basis of a contractual
breach.

This is especially true if the expectations and intent

of each client varied as a product of the individualized sales
representations that client received.
With respect, the majority is mistaken in its attempt
to

distinguish

“uniform

Wal-Mart

distribution

policy

is

not

rather

its

the

basis

of

White

at

8.

practice.”

Ante,

Directory’s

White

sales

on

distribution

policy,

which

sheds

light

Directory’s
The

relevant

practices,
on

the

reliance

interests of the parties and whether they were uniform.
this respect, Wal-Mart is squarely on point.

but

And in

Wal-Mart’s policy

that granted broad discretion to local supervisors over pay and
promotion

(in

conjunction

nondiscrimination)
commonality.
one

of

fatal

to

its

the

written

plaintiffs’

policy

of

assertion

of

As in Wal-Mart, White Directory’s sales policy was

broad

discretion

was

with

discretion.

to

craft

their

Specifically,
sales

pitch

to

salesmen
the

had

needs

broad
of

the

specific client.
As

a

result,

there

was

written and oral sales pitches.

substantial

variation

in

Not all members of the class

saw the same sales aids or the same salespersons nor were they
subject

to

distribution.

the

same

representations

with

respect

to

Evidence of the parties’ intent and expectations
14

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with

Document: 40

respect

to

individualized

Date Filed: 08/25/2011

distribution

will

anecdotal,

just

and

insufficient in Wal-Mart.
of

phone

books

representations

was
to

Page: 15 of 17

like

the

necessarily
evidence

be

deemed

Thus, even if the actual distribution

uniform,
class

therefore

the

members

lack

of

indicates

uniformity
that

there

in
is

the
no

“common answer” to the critical question of the intent of the
parties to each contract.

See Wal-Mart, 131 S. Ct. at 2552.

B.
The extrinsic evidence and the individualized nature
of the claims deriving from it forecast all sorts of difficult
problems

down

the

road.

Plaintiffs

would

need

to

introduce

individualized evidence, of the kind rejected in Wal-Mart, to
prove

a

specific

numerical

distribution

term

--

specifically

evidence of what sales aids were used or what sales pitches were
given

at

individual

meetings. *

Individualized

evidentiary

hearings will be necessary to prove both injury and any damages
that may flow from a breach of contract.

In contrast, the class

action device as applied to this variety of circumstances may

*

It is worth emphasizing that even appellees have never
identified a uniform distribution policy within the contracts as
the basis for the breach. Rather, their theory of the case has
always rested on extrinsic evidence of the representations about
distribution
made
to
clients
in
sales
aids
and
sales
conversations.

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force appellants into a one-size-fits-all defense, compromising
what is and should have been their legitimate right to make a
defense tailored to individual circumstances.

In this case,

therefore, the class action method hardly seems “superior to
other available methods for fairly and efficiently adjudicating
the controversy.”

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

III.
In

the

end,

we

are

still

left

with

the

question,

unanswered by the contract, of what the uniform distribution
policy was.

Plaintiffs want to have their cake and eat it too.

They allege commonality for class certification on the basis of
an alleged uniform distribution obligation, and yet expect use
of extrinsic evidence to demonstrate that such an obligation
existed and was breached.

But just as the absence of a uniform

discrimination policy was fatal to certification in Wal-Mart, so
too is the absence of uniform representations with respect to
distribution fatal to the certification effort here.

Again, it

is the representations that matter, because it is the violation
of

those

breach

of

representations
contract

that

claim.

alone

could

Accordingly,

lead

there

to
is

a
no

viable
way

to

“resolve an issue that is central to the validity of each one of
the claims in one stroke.”

Wal-Mart, 131 S. Ct. at 2545.

16

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would therefore reverse the class certification order in this
case.

17