558 F.

2d 977
1977-1 Trade Cases 61,519

Ralph E. WEST, Eduardo Ramirez and Marilyn L. Segrist, on

behalf of themselves as Individuals and on behalf
of all others similarly situated,
Plaintiffs- Appellants,
v.
CAPITOL FEDERAL SAVINGS AND LOAN
ASSOCIATION, Shawnee
Federal Savings and Loan Association, American Savings
Association of Kansas, Postal Savings and Loan Association,
and the Topeka Savings Association, together with Does 1
through 200, Defendants-Appellees.
No. 77-1058.

United States Court of Appeals,

Tenth Circuit.
Argued and Submitted May 20, 1977.
Decided July 7, 1977.

Arnold Levin, Philadelphia, Pa., Fred W. Phelps, Topeka, Kan. (Adler,

Barish, Daniels, Levin & Creskoff, Philadelphia, Pa., of counsel and on
the briefs), for plaintiffs-appellants.
Harold S. Youngentob and Wesley A. Weathers, Topeka, Kan. (Donald
Patterson of Fisher, Patterson, Sayler & Smith; William Hergenreter of
Shaw, Hergenreter, Quarnstrom & Wright; Arthur E. Palmer of Goodell,
Casey, Briman & Cogswell; Randall J. Forbes of Crane, Martin, Claussen,
Hamilton & Barry and J. H. Eschmann of Ascough, Bausch & Eschmann,
Topeka, Kan., on the briefs), for defendants-appellees.
Before SETH, BREITENSTEIN and McWILLIAMS, Circuit Judges.
BREITENSTEIN, Circuit Judge.

This class action suit charges violations of the Sherman and Clayton antitrust
acts. 15 U.S.C. 1, 15, 16, and 26. The district court denied class action
certification and dismissed the case except insofar as it was brought by named
plaintiffs. In its order of dismissal the court made the determination and
direction required by Rule 54(b) to permit appellate review.

The three named plaintiffs sue for themselves and "on behalf of all persons in
the State of Kansas who have borrowed money secured by a first lien on their
homes from any of the defendant lending institutions." The defendants are five
named Kansas savings and loan associations, "together with Does 1 through
200." The basic charge is that the plaintiffs, as borrowers, were required to pay
monthly, in addition to the mortgage payments, one-twelfth of the yearly taxes,
assessments and insurance premiums on the mortgaged property. These
payments went into a non-interest bearing escrow account which the lenders
commingled with other funds for profit-making purposes. The lender applies
the escrows to the payment of taxes, assessments, and insurance premiums
when due. The annual interest rate on the loan is not calculated with reference
to the fact that the lender holds the escrows without paying interest thereon.

The complaint charged violation of the Truth in Lending Act, 15 U.S.C. 1601
et seq., the Sherman and Clayton antitrust laws, and various pendent state
claims based on breach of fiduciary duty, unjust enrichment, fraud, and usury.
The plaintiffs have abandoned the claims under the Truth in Lending Act. The
antitrust claims are conspiracy, parallel behavior different from previously
divergent behavior, and use of illegal tie-ins. The complaint prays for
declaratory and injunctive relief, general damages of five hundred million
dollars, punitive damages of one billion five hundred million dollars, attorneys'
fees, and costs.

The defendants filed motions to dismiss for failure to state a claim and other
reasons. Plaintiffs requested, and defendants gave, answers to extensive
interrogatories. The deposition of each of the named plaintiffs was taken.
Plaintiffs moved for class certification under Rule 23(c), F.R.Civ.P. After
briefing, the court denied class certification, and dismissed the action. On
plaintiffs' motion for reconsideration, the court modified its previous order by
dismissing the action as to all but the named plaintiffs, ruling that there was no
just reason for delaying judgment against the others, and ordering the entry of
final judgment against them and in favor of the defendants.

The threshold question is the jurisdiction of the court of appeals. Plaintiffsappellants rely on Rule 54(b), F.R.Civ.P., and 28 U.S.C. 1291. On the record
presented, 28 U.S.C. 1292(b) relating to interlocutory appeals is not

applicable because the trial court did not make the statement which that section
requires.
6

We first consider Rule 54(b) which relates to actions in which there are
multiple claims or multiple parties. The court may direct the entry of a final
judgment as to one or more, but fewer than all, the claims or parties only upon
an express determination that there is not just reason for delay and an express
direction for the entry of judgment. The trial court made both the required
determination and direction.

The notice of appeal was filed by the attorney for the plaintiffs. The question of
whether the attorney did so on behalf of the plaintiffs in their individual or
representative capacity is not raised. In the circumstances we take it that he
acted in each capacity. Liberality of interpretation is desirable. See Knuth v.
Erie-Crawford Dairy Coop. Association, 3 Cir., 395 F.2d 420, 428, cert. denied
410 U.S. 913, 93 S.Ct. 966, 35 L.Ed.2d 278.

The notice of appeal is from both the denial of class certification and the
dismissal of the action against the putative members of the class. At the time of
dismissal the putative members were not parties to the suit. Class certification
had been denied and no notice had been given to the non-appearing class
members as required by Rule 23(c)(2) if the suit is to proceed as a class action.
Until class certification is followed by notice the members of the potential class
are "mere passive beneficiaries" who do not " have any duty to take note of the
suit." American Pipe & Construction Co. v. Utah, 414 U.S. 538, 552, 94 S.Ct.
756, 765, 38 L.Ed.2d 713. Notice is "an unambiguous requirement of Rule 23."
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176, 94 S.Ct. 2140, 2152, 40
L.Ed.2d 732. A personal judgment entered without jurisdiction over the person
violates due process and is void. Hanson v. Denckla, 357 U.S. 235, 250, 78
S.Ct. 1228, 2 L.Ed.2d 1283. Accordingly, the judgment dismissing the action
on behalf of the class is void and set aside.

The appeal of the named plaintiffs relates only to the denial of class
certification. They are not affected by the dismissal of the action on behalf of
the putative class. The question is whether the denial is a final, appealable
order. Rule 54(b) "does not relax the finality required of each decision, as an
individual claim, to render it appealable." Sears, Roebuck & Co. v. Mackey,
351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.Ed. 1297.

10

To sustain Rule 54(b) review, plaintiffs cite Katz v. Carte Blanche Corporation,
3 Cir., 496 F.2d 747, 752, cert. denied 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d

125, where it is said that the dismissal of a complaint against absent class
members was reviewable under Rule 54(b). The statement is dicta because Katz
was a review under 28 U.S.C. 1292(b). Katz cites Hayes v. Sealtest Foods
Division of National Dairy Products Corp., 3 Cir., 396 F.2d 448. The
consideration of Rule 54(b) in that case is not pertinent because the court found
no compliance with the rule. In Windham v. American Brands, Inc., 4 Cir., 539
F.2d 1016, 1020, a Rule 54(b) certificate was accepted as permitting review of
rejection of a class. The Fourth Circuit relied on the Third Circuit decisions in
Katz and Hayes and did not discuss the problem.
11

In Monarch Asphalt Sales Co. v. Wilshire Oil Co. of Tex., 10 Cir., 511 F.2d
1073, we permitted a Rule 54(b) review of denial of class certification. In that
case nine members of a subclass which was denied certification sought, and
were denied, intervention. We held that the judgment denying intervention was
appealable and that the interlocutory order denying class certification was
merged into the final judgment and, hence, reviewable. Ibid. at 1077; see also
Hellerstein v. Mr. Steak, Inc., 10 Cir., 531 F.2d 470, 474, cert. denied, 429 U.S.
823, 97 S.Ct. 75, 50 L.Ed.2d 85.

12

Monarch v. Wilshire did not involve an appeal by the named plaintiffs from an
order denying class certification. It was an appeal by rejected class members
who sought to intervene and appealed from the order denying intervention. In
Monarch v. Wilshire we said, 511 F.2d at 1076-1077, that "(b)arring the death
knell exception * * * an order denying class status is interlocutory and not
appealable." See also Seiffer v. Topsy's International, Inc., 10 Cir., 520 F.2d
795, cert. denied 423 U.S. 1051, 96 S.Ct. 779, 46 L.Ed.2d 640.

13

The death knell concept originated in Eisen v. Carlisle & Jacquelin, 2 Cir., 370
F.2d 119, cert. denied 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598; 391 F.2d
555, 2 Cir.; and 479 F.2d 1005, 2 Cir., vacated and remanded, 417 U.S. 156, 94
S.Ct. 2140, 40 L.Ed.2d 732, and is predicated on the collateral order doctrine of
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93
L.Ed. 1528. The reason for the relaxation of the finality requirement is the
improbability of further prosecution of the action without class certification.

14

As we read the Supreme Court Eisen decision, it neither accepted nor rejected
the death knell doctrine. See 417 U.S. at 169-172, 94 S.Ct. 2140; see also,
United Air Lines, Inc. v. McDonald, --- U.S. ----, 97 S.Ct. 2464, 53 L.Ed.2d
423, n.4. It held that in the circumstances of the case the order granting class
status was appealable to the court of appeals under the Cohen v. Beneficial
collateral order doctrine.

15

The death knell exception to 1291 finality has been criticized as a mechanical
test which focuses narrowly on the plaintiff. See Hackett v. General Host
Corporation, 3 Cir., 455 F.2d 618, 621-623, cert. denied 407 U.S. 925, 92 S.Ct.
2460, 32 L.Ed.2d 812, and concurring opinion of Judge Friendly in Parkinson
v. April Industries, Inc., 2 Cir., 520 F.2d 650, 658-660. Some circuits have
rejected, or refused to apply, the death knell concept. See King v. Kansas City
Southern Industries, Inc., 7 Cir., 479 F.2d 1259-1260; and Falk v. DempseyTegeler & Co., Inc., 9 Cir., 472 F.2d 142, 143-144. See also Williams v.
Mumford, 167 U.S.App.D.C. 125, 511 F.2d 363, 366-369, cert. denied 423 U.S.
828, 96 S.Ct. 47, 46 L.Ed.2d 46, where the court found an appeal not to fit
under the death knell exception.

16

We can add nothing to the analysis of the problem in Hackett,455 F.2d at 621623, and Parkinson, 520 F.2d at 658-660. The death knell theory is that the
case will not proceed without the presence of the class. We recognize the
importance of class actions for the assertion of small claims against well
financed corporate defendants. We agree that the finality requirement of 1291
should be given a practical rather than technical effect. Ringsby Truck Lines,
Inc. v. United States, 10 Cir., 490 F.2d 620, 624, cert. denied 419 U.S. 833, 95
S.Ct. 59, 42 L.Ed.2d 59. The primary field for operation of death knell is those
"cases in which attorneys are willing to undertake on a contingent fee basis
class actions for the recovery of money damages for claimed violations of
federal regulatory statutes." Hackett, 455 F.2d at 623. The instant case is in
such a field, alleged violations of the federal antitrust laws which allow
recovery of attorneys' fees and costs. 15 U.S.C. 15. In antitrust cases the
attorney's fee is not limited to a portion of the recovery but is computed on the
basis of the worth of the services. See Courtesy Chevrolet, Inc. v. Tennessee
Walking Horse B. & E.A., 9 Cir., 393 F.2d 75, 77, cert. denied 393 U.S. 938,
89 S.Ct. 301, 21 L.Ed.2d 274.

17

In Hellerstein v. Mr. Steak, Inc., 10 Cir., 531 F.2d 470, 471, cert. denied 429
U.S. 823, 97 S.Ct. 75, 50 L.Ed.2d 85, we held that an order granting class
action status is not appealable under 1291. The difference between that case
and the one now under consideration is that here we have a denial of class
certification. The rule should apply both ways. Although the individual
amounts here involved are small, the plaintiffs may recover their costs and the
attorneys are entitled to a fee based on the legal work, not the amount of
recovery. See Judicial Conference-Eighth Circuit, Class Action Litigation, 70
F.R.D. 251, and particularly decisions noted at 310.

18

The plaintiffs have made no showing, either in the trial court or here, that the
case will not proceed in the absence of class certification. We are aware of no

reason why it may not. Appealability does not depend on the possible amount
of an attorney's fee. On the record before us we decline to use the death knell
doctrine to establish appealability under 1291. This holding precludes the use
by plaintiffs of Rule 54(b) because there is no final judgment against the named
plaintiffs.
19

In Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, we noted the
Rule 23(c)(1) provision that class determination should be made "as soon as
practicable" after the commencement of a class action, and disapproved a class
determination made after trial on the merits. Class determination is a
preliminary, interlocutory action subject to change before final disposition of
the case. Compare Seiffer v. Topsy's International, Inc., 10 Cir., 520 F.2d 795,
with Horn v. Associated Wholesale Grocers, Inc., supra. A troublesome
problem is how the class determination may be reviewed at the appellate level
before trial on the merits.

20

If the dismissal of a putative class is wrong because the members of the class
are not parties to the suit until made so by a Rule 23(c) determination and
notification, the right to appeal lies in the named plaintiffs and defendants. If
1291 does not apply because of the lack of finality, recourse may not be had to
Rule 54(b) because it applies only to a " final judgment." The remaining
avenues for appellate review are an interlocutory appeal as permitted by
1292(b) and an application for mandamus. See Hackett v. General Host
Corporation, 3 Cir., 455 F.2d 618, 622-624, and concurring opinion of Judge
Friendly in Parkinson v. April Industries, Inc., 2 Cir., 520 F.2d 650, 658-660.
The need for review of class action orders depends on the facts of each
particular case. We agree with Judge Friendly, Ibid. at 660, that the 1292(b)
procedure is preferable to the judicial formulation of vague standards which
will probably result in undesirable jurisdictional litigation. Protection against
excessive zeal in the grant or denial of class certification may be secured by an
application to the court of appeals for an extraordinary writ such as mandamus.

21

The judgment dismissing the claims of those other than the named plaintiffs is
vacated. The order denying class certification is interlocutory and not
reviewable under either Rule 54(b) or 1291. The case is remanded for further
proceedings in the light of this opinion. Each party shall bear his own costs.