Richard Kline v. Coldwell, Banker & Co., Realtors

508 F.2d 226 1974-2 Trade Cases 75,436 Richard KLINE et al., Plaintiffs-Appellees, v. COLDWELL, BANKER & CO., Realtors, et al., Defendants-Appellants. No. 73-2169. United States Court of Appeals, Ninth Circuit. Dec. 20, 1974. Carl Schuck (argued), Overton, Lyman & Prince, Los Angeles, Cal., for petitioners L. A. Realty Board and others. Bridges & Bridges, Los Angeles, for petitioner Lindgren. Seth M. Hufstedler, Beardsley, Hufstedler & Kemble, Los Angeles, Cal. (argued), for petitioners Coldwell, Banker & Co. Daniel Fogel, Bodle, Fogel, Julber & Reinhardt, Los Angeles, Cal. (argued), for respondents-appellees. Before DUNIWAY and TRASK, Circuit Judges, and POWELL, * District judge. OPINION TRASK, Circuit Judge: 1 In this proceeding under the Interlocutory Appeals Act of 1958, 28 U.S.C. 1292(b), we are called upon to decide by means of an interlocutory appeal whether this suit may be maintained as a class action under Rule 23, Federal Rules of Civil Procedure. The action was brought by plaintiffs Richard and Margo Kline, husband and wife, on behalf of themselves and all sellers of residential real estate in Los Angeles County against the Los Angeles Realty…

*228 OPINION

In this proceeding under the Interlocutory Appeals Act of 1958, 28 U.S.C. § 1292 (b), we are called upon to decide by means of an ■ interlocutory appeal whether this suit may be maintained as a class action under Rule 23, Federal Rules of Civil Procedure. The action was brought by plaintiffs Richard and Margo Kline, husband and wife, on behalf of themselves and all sellers of residential real estate in Los Angeles County against the Los Angeles Realty Board and its several divisions and 32 named real estate brokers representing a class consisting of all real estate brokers who were members of the Board during the 4-year period prior to the filing of the action.

Plaintiffs allege that the Board and its members conspired in violation of section 1 of the Sherman Act, 15 U.S.C. § .1, to fix brokerage commissions through distribution of a recommended fee schedule to its members. Plaintiffs claim that the fee schedule fixed commissions at a higher rate than it would have been absent the schedule, causing damage to plaintiffs which they are entitled to have trebled under section 4 of the Clayton Act, 15 U.S.C. § 15 . During the 4-year period involved, approximately 800,000…

(concurring):

I concur in the judgment, but for somewhat different reasons.

First, I think that this case is controlled by the rationale of our decision in In re Hotel Telephone Charges, 9 Cir., 1974, 500 F.2d 86 . That case, like this one, was an antitrust case, involving large classes of potential plaintiffs and defendants. We there held that the case was not a proper one for class action treatment for two reasons: (1) that common questions did not predominate over individual questions (see Rule 23(b)(3), F.R.Civ.P.), 500 F.2d at 88-90 ; and (2) that the proposed class action was not a superior method of adjudication (see Rule 23(b)(3)), 500 F.2d at 90-92 . The facts here are not identical to those in Hotel Telephone Charges, but the differences are minor and, in my opinion, not significant enough to make the rationale of that case inapplicable to this one.

Second, I cannot believe that Rule 23, as amended, was intended or should be construed to authorize the kind of judicial juggernaut that plaintiffs and their counsel seek to create here. The plaintiffs Kline have been designated as the representatives of an estimated 400,000 sellers of real property in Los Angeles County,…