Rothwell v. Chubb CV-96-83-B 03/31/98 P

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Donald E . Rothwell, et al.

v. Civil No. 96-83-B

Chubb Life Insurance Company of America

MEMORANDUM AND ORDER

Donald Rothwell, Joseph Buddemeyer, Florence Landau, and

Stanley Landau have moved to certify a plaintiffs' class in

their action against the Chubb Life Insuance Company of America

("Chubb"). Chubb objects, arguing that plaintiffs cannot meet

the reguirements of Federal Rule of Civil Procedure 23. For the

reasons discussed below, I deny the motion to certify.

I.

The named plaintiffs filed this action on behalf of

themselves and a putative class comprised of as many as 350,000

1 members,1 charging that Chubb implemented a scheme to induce

prospective policyholders to purchase interest-sensitive whole

life and universal life insurance policies through the use of

fraudulent and deceptive sales practices.

The policies at issue reguire the policyholder to pay a set

premium in exchange for Chubb's promise to pay a guaranteed death

benefit.2 For example, plaintiff Rothwell's policy guarantees

him a $50,000 death benefit for the first five years and a death

benefit of at least $21,869 for each year thereafter in exchange

for an annual premium of $832. Premium payments, after the cost

of insurance and various other charges are deducted, are credited

to a "Fund Account," the balance of which grows over time. The

Fund Account earns interest at a rate guaranteed for the first

year. Although Chubb thereafter may adjust the interest rate up

or down, the rate may not fall below a guaranteed minimum level.

The Fund Account serves several functions. A policyholder

may borrow against the Account or reclaim the balance in the

1 Rothwell, Buddemeyer, and the Landaus initially brought their actions separately. The three actions were consolidated on August 6, 1996.

2 Chubb evolved through a series of mergers and acguisitions during the class period. Conseguently, many of the policies at issue here were sold by predecessor companies.

2 Account, less a surrender charge, by canceling the policy. As

the Account balance grows over time, the additional amount

reguired to satisfy the specified death benefit correspondingly

diminishes, reducing the policyholder's cost of insurance.

Depending upon the value of the Account and the designated

interest rate, the Account may generate sufficient interest to

reduce or even eliminate the need for additional out-of-pocket

premium payments. Alternatively, after the initial period in

which the maximum death benefit is guaranteed, Chubb may reduce

the death benefit if the interest generated is not sufficient in

conjunction with the premium payments to fully cover the cost of

insurance.3

Plaintiffs' principal argument is that Chubb adopted a

practice of encouraging its agents to make misleading statements

to prospective policyholders concerning the point at which the

interest generated on the policy's Fund Account would be

sufficient to eliminate the need for future out-of-pocket premium

3 In the event that the interest earned on the Fund Account balance is insufficient to cover the cost of insurance, the policyholder also has the option of either retaining the initial death benefit by paying a higher premium or, if the value of the Fund Account is above a specified level, paying the initial premium amount, retaining the initial death benefit, and making up the difference from principal.

3 payments. According to the complaint, Chubb sold its policies

through the use of computer-generated illustrations demonstrating

this "vanishing premium" feature. These illustrations, tailored

to the individual financial situation of each prospective

policyholder, predict the performance of the policy based on an

assumed interest rate. The rate assumed in the illustrations

typically was the initial rate guaranteed for the first year, but

in no event was it greater than the rate at which Chubb had

credited policies in the previous year. The illustrations showed

that if the interest rate at which Chubb credited the Fund

Account remained at the assumed level, the policyholder's out-

of-pocket premium payments would cease after a given term of

years and the policyholder's death benefit would remain for the

life of the policy at the level guaranteed for the first five

years.

Plaintiffs contend that such illustrations were uniformly

misleading in that they failed to adeguately disclose, inter

alia, (1) that the assumed interest rates were unrealistically

high; (2) that incremental changes in the assumed interest rates

could extend the "vanish year"; (3) that a significant change in

the assumed rate could mean that the "vanish year" would never be

4 reached; and (4) that changes in other undisclosed assumptions

could require the policyholder to continue making premium

payments for many years after the "vanish year" depicted in the

5 illustrations. Additionally, plaintiffs claim that Chubb's

agents failed to make the disclosures necessary to render the

illustrations not misleading.

Plaintiffs also allege that Chubb orchestrated a "churning"

scheme by which it induced thousands of persons who already owned

life insurance to use the accumulated cash values in their

existing policies to purchase new policies with Chubb. Chubb

agents allegedly represented to policyholders that by using the

accumulated cash values in their existing policies, they could

obtain new policies offering greater coverage with no additional

premium outlays. In many cases, however, pre-existing policies

had insufficient cash value to cover the premiums for the new

policies. Instead, many policyholders had to make additional

premium payments, often in increased amounts, in order to

maintain coverage. Additionally, policy replacement often

entailed significant undisclosed administrative fees and sales

commissions.

Plaintiffs Rothwell and Buddemeyer both allege that they

purchased life insurance as a result of Chubb's "vanishing

premium" marketing scheme. The Landaus claim that, as a result

of Chubb's "churning" scheme, they were induced to cash in

6 existing policies in order purchase a new policy with Chubb.

Plaintiffs thus brought suit seeking compensatory and punitive

damages, reformation of their insurance contracts, and declara­

tory and injunctive relief. They base these reguests for relief

on claims for breach of contract, fraud, fraudulent inducement,

negligent misrepresentation, negligence, breach of fiduciary

duty, breach of the covenant of good faith and fair dealing,

unjust enrichment, and violations of New Hampshire's Consumer

Protection Act,

-A:2 (1995).4

Plaintiffs now seek to certify a class with two subclasses:

(1) the "vanishing premium subclass," comprised of all persons

who purchased an interest-sensitive whole life or universal life

insurance policy from Chubb, from January 1, 1980, through April

15, 1996, that was sold pursuant to the vanishing premium

marketing scheme; and (2) the "churning subclass," comprised of

all persons who purchased an interest-sensitive whole life or

universal life insurance policy from Chubb, from January 1, 1980,

through April 15, 1996, as a replacement for an in-force policy

4 Plaintiffs also asserted claims based on the Securities Act of 1933,

et seq. (1997). I disposed of these claims when ruling on Chubb's motion for partial summary judgment.

7 in a transaction in which the new policy was to be funded in

whole or part by values obtained from the in-force policy.

II.

A. CLASS CERTIFICATION STANDARDS

To certify a proposed class, plaintiffs first must satisfy

the four prerequisites of Rule 2 3 (a): numerosity, commonality,

typicality, and adequacy. Fed. R. Civ. P. 2 3 (a)(1)-(4). If

those requirements are satisfied, the class then must also meet

the characteristics of at least one of the three cateqories

provided in Rule 23(b), which allows class actions where: (1)

separate actions by or aqainst individual class members would

risk imposinq inconsistent obliqations on the party opposinq the

class; (2) "the party opposinq the class has acted or refused to

act on qrounds qenerally applicable to the class" and injunctive

relief is appropriate; or (3) common questions of law or fact

predominate and a class action would be the superior method of

proceedinq. Fed. R. Civ. P. 23(b)(l)-(3). Plaintiffs bear the

burden of establishinq all of the requirements for class

certification. Makuc v. American Honda Motor Co.,

(1st Cir. 1987).

8 9 Although the Supreme Court has stated that a court should

not decide the merits of a case at the certification stage, Eisen

v. Carlisle & Jacquelin,

(1974), a motion to

certify "generally involves considerations enmeshed in the

factual and legal issues comprising plaintiff's cause of action."

Coopers & Lvbrand v. Livesav,

(1978) (guoting

Mercantile Nat'l Bank v. Lanqdeau,

(1963)).

This is particularly true with respect to guestions of predomi­

nance and superiority which necessitate a "close look" at, inter

alia, "the difficulties likely to be encountered in the manage­

ment of a class action." Amchem Products, Inc. v. Windsor,

(1997) (internal citations omitted); Manual for

Complex Litigation § 30.11 (3d ed. 1995). Conseguently, I

examine both the nature of the plaintiffs' claims and the manner

in which they intend to prove those claims in determining whether

to grant their reguest for class certification.

B. ANALYSIS

_____Plaintiffs argue that their complaint satisfies the Rule

2 3 (a) prereguisites and is eligible for class action treatment

under either Rule 23(b)(2) or Rule 23(b)(3). As I conclude that

the complaint cannot satisfy either of Rule 23(b)'s reguirements.

10 I need not examine plaintiffs' arguments under Rule 23 (a) .

1. RULE 23(b) (2 )

Rule 23(b)(2) allows certification of a class action where

"the party opposing the class has acted or refused to act on

grounds generally applicable to the class, thereby making

appropriate final injunctive relief or corresponding declaratory

relief with respect to the class as a whole." Fed. R. Civ. P.

23(b) (2) . Plaintiffs argue that Chubb consistently misled,

through misrepresentation or omission, each member of the

putative class as to the nature of the insurance products that

Chubb induced them to purchase. Additionally, plaintiffs argue

that they are entitled to injunctive and declaratory relief.

Rule 23(b)(2) "does not extend to cases in which the

appropriate final relief relates exclusively or predominantly to

money damages." Rules Advisory Comm. Note to Amended Rule 23,

, 102 (1966); see also Bouqhton v. Cotter Corp.,

(10th Cir. 1995); Nelson v. King County,

(9th Cir. 1990); In re School Asbestos Litiq.,

(3d Cir.), cert. denied,

(1986). This is true

even if the court finds injunctive relief appropriate at some

point in the litigation. Cf. In re School Asbestos Litiq., 789

11 F.2d at 1008. Rather, plaintiffs may avail themselves of the

12 rule only if injunctive or declaratory relief is the predominant

remedy they seek. 1 Herbert Newberg & Alba Conte, Newburq on

Class Actions § 4.12, at 4-43 (3d ed. 1992) ("Newberg");

Bouqhton,

(10th Cir. 1995); Heartland

Communications, Inc. v. Sprint Corp., 161 F.R.D. Ill, 117 (D.

Kan. 19 95).

Plaintiffs attempt to characterize this action as primarily

seeking injunctive relief. It is readily apparent, however, that

their primary objective is money damages. Plaintiffs assert an

array of state law claims seeking compensatory and punitive

damages, as well as costs and fees. Although plaintiffs also

seek eguitable relief in the form of an injunction barring Chubb

from canceling class members' policies for failure to pay

premiums and through the imposition of a constructive trust, any

such relief is secondary to their claims for money damages. See

Freedman v. Arista Records, Inc.,

(E.D. Pa.

1991) (declining to certify under Rule 23(b) (2) where injunctive

relief secondary to monetary relief). Conseguently, certifi­

cation under Rule 23(b)(2) is not appropriate.

2. RULE 23(b)(3)

Two hurdles must be overcome to certify a class under Rule

13 23(b)(3): (1) common questions of law or fact must predominate

over questions affectinq only individual members; and (2) a class

action must be "superior to other available methods" of adjudi-

catinq the case. Fed. R. Civ. P. 23(b)(3). These requirements

ensure that certification is qranted only where the adjudication

of common issues in a sinqle action will achieve judicial

economies and practical advantaqes without jeopardizinq proce­

dural fairness. Amchem,

; In re American Med.

Svs., Inc.,

(6th Cir. 1996); 1 Newberg § 4.24;

7A Wriqht, Miller, and Kane, Federal Practice and Procedure §

1777 (1986) .

Courts have not developed a precise test to determine

whether common issues predominate in a proposed class action but

often look for "an essential common link amonq class members"

that can be remedied throuqh litiqation. 1 Newberg § 4.25, at 4-

86. Thus, common issues are deemed to predominate when the class

shares issues of "overridinq siqnificance," such as a determina­

tion of defendant's liability, so that separate adjudication of

individual liability claims would be unnecessary. See 7A Federal

Practice and Procedure § 1778.

Plaintiffs claim that they were all defrauded by the same

14 common course of conduct. Although they purchased their policies

separately, they claim that Chubb induced them to do so through a

sales campaign that was standardized, coordinated, and deceptive.

According to plaintiffs, the trial will focus on Chubb's manage­

ment and whether it implemented the alleged deceptive sales

practices through common devices such as uniform policy illus­

trations, standardized sales pitches, uniform training programs,

and company-wide compensation policies that encouraged agents to

carry out the fraudulent practices. Such common issues,

plaintiffs argue, will predominate over any issues peculiar to

individual plaintiffs. I examine plaintiffs' showing with

respect to each subclass in turn.

(a) Vanishing Premium Subclass

Before any member of the class can recover on any of the

complaint's vanishing premium allegations, that class member will

have to prove that the agent or broker who sold the policy mis­

represented the way in which the policy's fluctuating interest

rate could potentially affect its vanishing premium feature.

Plaintiffs do not base their claim on any standard form policy

language. Nor do they point to any allegedly deceptive adver­

tising that was aimed at a mass market. Instead, their claims

15 depend on statements that allegedly were made and documents that

allegedly were shown to individual class members by Chubb's

general agents at the point of sale.

Plaintiffs assert that they will prove that the sales

practices at issue were the product of a carefully coordinated

scheme by Chubb's management. In particular, they rely on the

policy illustrations that Chubb's agents allegedly were taught to

use when selling interest-sensitive policies. Plaintiffs allege

that the vanishing premium marketing illustrations, while not

necessarily identical, uniformly failed to contain the disclo­

sures necessary to make them not misleading. Thus, they argue

that the guestion of whether misleading representations were made

to any members of the class is a common guestion that can fairly

and effectively be resolved on a class-wide basis. I disagree.

Class certification may not be appropriate when a putative

class action is based on non-uniform written representations.

Darms v. McCulloch Oil Corp.,

(8th Cir. 1983);

Simon v. Merrill Lynch, Pierce, Fenner and Smith, Inc.,

(5th Cir. 1973). Similarly, most courts hold that

certification is not appropriate when the plaintiffs' claims are

based on oral representations, which, by their nature, tend to be

16 particularized. Jackson v. Motel 6 Multipurpose, Inc.,

(11th Cir. 1997); Peoples v. American Fidelity Life

Ins. Co., No. 3:97CV101/MD,

(N.D. Fla. Jan.

6, 1998); Click v. E.F. Hutton & Co.,

(E.D. Pa. 1985). Only when the variations in the representations

are immaterial and, thus, the representations are essentially

uniform, do courts generally consider certifying such classes.

See In re American Continental Corp./Lincoln Sav. & Loan Sec.

Litiq.,

(D. Ariz. 1992) (holding oral

representations no bar to certification where bond salespersons

testified to a common sales approach); In re Baldwin-United Corp.

Litiq.,

(S.D.N.Y. 1986) (holding minor

variations in written securities prospectuses no bar to

certification).

The evidence plaintiffs offer to support their claims of a

centrally conceived scheme to mislead is hotly disputed and less

than compelling. Nevertheless, even if plaintiffs were able to

prove at trial that Chubb trained its agents to use the policy

illustrations in a misleading manner, it still would not elimi­

nate the need for a "mini-trial" on each class member's claim to

determine the nature of the representations that were made in

17 that case.5

Plaintiffs concede that the policy illustrations at issue

were not uniform. Instead, each illustration was created by any

one of five different computer systems and was individually

tailored to the financial status of the individual policyholder.

Further, the policy illustration was not a stand-alone document,

but rather was only one piece of the entire mix of information

made available to each prospective policyholder. Each agent made

individualized oral representations to the policyholder based on

the illustration, other written materials, and the potential

policyholder's financial situation and goals. Moreover, Chubb

sold its policies through a large network of mostly independent

contractors. Although some of these agents received training

from Chubb, the record contains no evidence suggesting that they

were reguired to use standardized sales scripts. In the absence

5 The contentions of the class representatives in this case illustrate how fact-intensive and individualized this process would be. Both Rothwell and Buddemeyer stated in deposition testimony that they either did not see a sales illustration or only vaguely recall having done so. Each further testified that he relied on the oral representations made to him by Chubb's agent. The agent, on the other hand, stated by affidavit that he showed sales illustrations to both plaintiffs, answered many guestions that were based on the illustrations, and made all disclosures necessary to render the illustrations not misleading.

18 of such evidence, plaintiffs cannot satisfy their burden of

showing that this issue presents a common question that predomi­

nates in importance over individual issues. Compare Peoples,

(refusing to certify where plaintiffs'

recollections of oral representations varied materially from

alleged model sales presentation) and Stephenson v. Bell Atlantic

Corp., No. Civ. A. 96-1217(JBS),

(D.N.J.

Dec. 11, 1997) (refusing to certify in absence of verbatim oral

sales presentation scripts) with In re American Continental,

(certifying where salespersons testified to having

merely repeated misrepresentations made by employer).

Litigating plaintiffs' claims as a class action also is

problematic because several of their fraud-based claims (i.e.,

fraud, fraudulent inducement, and negligent misrepresentation)

add a further layer of individual questions that predominate over

any common issues. Resolution of these claims requires proof

both that Chubb's agents made misrepresentations and that the

individual class members reasonably relied on those represen­

tations in purchasing their insurance policies. See Andrews v.

American Tel. & Tel. Co.,

(11th Cir. 1996);

Castano v. American Tobacco Co.,

(5th Cir.

19 1996); Martin v. Dahlberq, Inc.,

(N.D. Cal

1994) .

Some courts have held that class certification is appro­

priate notwithstanding individual questions of reliance. See

e.g., Eisenberg v. Gagnon,

, 786 (3d Cir.), cert.

20 denied,

(1985); In re Prudential Ins. Co. of Am.

Sales Practices Litiq.,

(D.N.J. 1997);

Holton v. L.F. Rothschild, Unterberf, Towbin,

(D. Mass. 1987). I agree, however, with the majority view that

certification generally is inappropriate when individual reliance

is an issue. See, e.g., Andrews,

; Castano,

; Simon,

; In re One Bancorp Sec.

Litiq.,

(D. Me. 1991). As the Supreme Court

stated in Basic Inc. v. Levinson, " [ r ] e g u i r i n g proof of indivi­

dualized reliance from each member of the proposed plaintiff

class effectively would . . . prevent[] . . . proceeding with

the class action, since individual guestions then would . . .

overwhelm[] the common ones."

(1988)

(upholding district court's certification of securities fraud

class where reliance could be presumed based on "fraud-on-the-

market" theory); see Rules Advisory Comm. Note to Amended Rule

23, 39 F.R.D. at 103 ("[A]ithough having some common core, a

fraud case may be unsuited for treatment as a class action if

there was material variation in the representations made or in

the kinds or degrees of reliance by the persons to whom they were

addressed."). Accordingly, I decline to certify the vanishing

21 premium subclass because individual issues predominate over any

common questions.

(2) Churning Subclass

Plaintiffs argue that common issues will predominate as to

the churning subclass because trial will focus on establishing

that Chubb had a practice of encouraging agents to churn policies

without regard to whether replacement was beneficial to the

particular policyholder. A quick look at this subclass's causes

of action, however, reveals that, here too, questions particular

to each plaintiff in this subclass predominate over any common

issues.

Plaintiffs claim that Chubb and its agents owed them a

fiduciary duty. By encouraging plaintiffs to replace their pre­

existing policies when it was not beneficial to their interests,

plaintiffs charge that Chubb breached this fiduciary duty. In

order to succeed with this claim, each plaintiff would need to

prove: (1) the existence of a fiduciary relationship; and (2)

that policy replacement was not beneficial to his or her

interests. See Kaser v. Swann,

(M.D. Fla.

1991); Moscarelli v. Stamm,

(S.D.N.Y.

1968). Both showings, however, necessitate individualized

22 inquiries that render certification inappropriate.

Determining whether Chubb owed a fiduciary duty to each

plaintiff would require a fact-intensive inquiry into the nature

of the relationship between policyholder and agent. See e.g.,

Kaser,

("To show the existence of a fiduciary

relationship the members of the class would have to prove that an

exchange of trust and confidence occurred between each plaintiff

and [the defendant]. This would require testimony from each

[plaintiff] and, as such makes this case unsuited for class

certification."); Moscarelli v. Stamm,

.

Moreover, even if a given plaintiff could establish that Chubb

owed him or her a fiduciary duty, that plaintiff would also have

to prove that replacing the pre-existing policy was not bene­

ficial to his or her interests. Cf. Romano v. Merrill Lynch,

Pierce, Fenner & Smith,

(5th Cir. 1987)

(affirming district court's refusal to certify securities

churning class because, inter alia, "adjudication would require

. . . an examination of the individual investment objectives of

the client"), cert. denied,

(1988). This showing

necessarily would involve a fact-intensive actuarial comparison

of each individual plaintiff's pre-existing policy with the terms

23 of the Chubb policy and likely would require proprietary

information from each plaintiff's previous insurer.6 Cf. Daniel

R. Fishchel & Robert S. Stillman, The Law and Economics of

Vanishing Premium Life Insurance,

, 22, 30-

31 (1997) .

Plaintiffs also claim that Chubb had a duty to act with

reasonable care in its dealings with the policyholders. Chubb

and its agents violated this duty, plaintiffs contend, by

intentionally misrepresenting important facts concerning the

replacement transaction and failing to disclose that: plaintiffs

would incur surrender charges in canceling their old policies;

Chubb stood to earn administrative fees at their expense; the

agent stood to earn substantial commissions at their expense; and

the accumulated value of their pre-existing policies was probably

not sufficient to cover the expense of the new policies.

6 As an indication of how fact-intensive and individualized such a process would be, Chubb has submitted evidence that it had to depose the Landaus' former insurer just to establish the actual terms of their former policies. In addition, the chief actuary for the Landaus' former insurer testified that determining whether the their decision to purchase a policy from Chubb was economically beneficial would be, as a practical matter, difficult. Further, he testified that completing the calculations necessary to make this determination would require proprietary information.

24 Plaintiffs claim that in misrepresenting aspects of the

25 transaction and failing to disclose relevant facts, Chubb was

negligent, fraudulently induced them to purchase new policies,

and violated New Hampshire's Consumer Protection Act,

-A:2.

Certification of these claims is inappropriate for the same

reason that certification of the vanishing premium subclass is

inappropriate -- because proof of the claims would reguire

inguiries into each individual transaction to determine whether

the individual agents made the necessary disclosures. See

Jackson,

; Peoples,

. Again,

this showing would break down into a series of individualized

mini-trials on issues that would substantially predominate over

any issues common to the class. See Moscarelli,

62; see also Willoughby v. John Hancock Mut. Life Ins. Co., No.

96/00307, slip op. at 7 (N.Y. Sup. Ct. Feb. 3, 1997) (denying

certification to "churning" class because deciding case would

reguire inguiry into each individual transaction). Because

guestions particular to each class member would likely

predominate over issues common to this subclass, certification

of the churning subclass is inappropriate. See Andrews,

; Romano,

.

26 27 (3) Summary

The claims at issue in this case present a difficult

challenge. It may well be true, as plaintiffs contend, that

many of the individual plaintiffs lack sufficient incentives or

resources to pursue their claims in separate actions if class

certification is denied. I am convinced, however, that I could

not make significant progress in resolving this dispute on a

class-wide basis because the core guestions on which plaintiffs'

claims depend can only be resolved through individual trials.

Under these circumstances, it would stretch the limitations of

Rule 23 beyond recognition to grant plaintiffs the relief they

reguest.7

7 Although I have based my ruling on the predominance of individual factual issues, certification also would be problematic because of the potential for variations in the law governing plaintiffs' claims. See e.g., Castano,

("In a multi-state class action, variations in state law may swamp any common issues and defeat predominance."). New Hampshire's Choice of Law rules dictate, at least with respect to plaintiffs' contract claims, that the law of the policy­ holder' s domicile will govern guestions concerning the validity and construction of the insurance contract. Glowski v. Allstate Ins. Co.,

(1991) ("[T]he state which is the 'principal location of the insured risk' bears the most signifi­ cant relation to the contract in the absence of an express choice of law by the parties.") (guoting Ellis v. Royal Ins. Co.,

(1987)). As the Tenth Circuit recently noted, a split exists among the states as to whether promotional materials used in the sale of insurance policies can bind the insurer.

28 III.

For the reasons stated herein, I deny plaintiffs' motion for

class certification (document no. 48).

SO ORDERED.

Paul Barbadoro Chief Judge

March 31, 1998

cc: Paul Maggiotto, Esg. Peter Lagorio, Esg. Mark Weaver, Esg. Jeffrey Barist, Esg. Charles J. Piven, Esg. Richard S. Schiffrin, Esg.

Brown v. Royal Maccabees Life Ins. Co., No. 96-8119,

(10th Cir. Mar. 3, 1998). Other potential differences in state law also could affect the disposition of other claims. See, e.g., Castano,

n.15 (noting variations in state law of fraud and duty to disclose); In re American Med. Svs.,

(noting variations in state law of negligence) (citing In re Rhone-Poulenc Rorer Inc.,

(7th Cir. 1995)); In re Northern Dist. of Cal., Daikon Shield IUD Prod. Liab. Litiq.,

(9th Cir. 1982) (noting variations in state law punitive damages standards). Accordingly, plaintiffs' class certification motion also is deficient because they have failed to demonstrate that these variances in state law will not prove to be an insur­ mountable impediment to class certification. See, e.g., Castano,

; Walsh v. Ford Motor Co.,

(D.C. Cir. 1986).

29 Michael D. Craig, Esq.

30