IN THE SUPREME COURT OF OHIO

Michael Pevets

Plaintiff,

V.

Crain Communications, Inc.

Defendant.

Case No.: 2011-1220

Appeal from the Court of Appeals forOttawa Countv, Sixth Appellate District,Case No. OT-10-023

APPELLEE MICHAEL PEVETS'MEMORANDUM IN RESPONSE TO JURISDICTION

Dennis E. Murray, Jr. (0038509)(COUNSEL OF RECORD)dmj (a murrayandmurra .omDennis E. Murray, Sr. (0008783)drasAmurrayandmurrgy.comMichael J. Stewart (0082257)mi s @murrayandmurray. comMurray & Murray Co., L.P.A.111 East Shoreline DriveSandusky, OH 44870-2517Telephone: (419) 624-3126Facsimile: (419) 624-0707

John C. Klaehn (0068981)Attorney at Law318 Madison StreetPort Clinton, Ohio 43452Telephone: (419) 734-4704Facsimile: (419) 734-2123

COUNSEL FOR APPELLEE,MICHAEL PEVETS

Fritz Byersfbyers cisp.com824 Spitzer Building520 Madison AvenueToledo, OH 43604-1305Telephone: (419) 241-8013Facsimile: (419) 241-4215

COUNSEL FOR APPELLANT,CRAIN COMMUNICATIONS, INC.

CI.ERK OF COURT

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TABLE OF CONTENTS

STATEMENT REGARDING WHETHER THIS CASE PRESENTS A SUBSTANTIALCONSTUTIONAL QUESTION OR IS OF GREAT PUBLIC INTEREST .................................. 1

1. RESPONSE TO CRAIN' S PROPOSED PROPOSITIONS OF LAW ............................... 3

A. Response to Proposition of Law No. 1: The courts below properly applied Ohio's

"most significant relationship" test and determined that Michigan's substantive law appliedto Appellee's individual claim. Extending this analysis to all of the `magazine's subscribers

does not run afoul of anyone's constitutional right to due process of law . ............................ 3

1. The uniform application of the law of Crain's home state to this class action does notcome close to triggering constitutional due process concerns ............................................ 3

2. Crain's shifting representations regarding its own "location........................................ 5

3. The trial court's application of the Restatement § 188 factors for choosing thesubstantive body of law in a contract action was both correct and unworthy of review.... 6

B. Response to Proposition of Law No. 2: Well-established rules governing classcertification direct courts to the common course of conduct by the defendant. The factualcircumstances surrounding each individual class member need not be identical ...........:....... 9

1. The trial court's class certification order is entitled to considerable discretion andshould not be disturbed . .................................................................................................... 10

2. The trial court properly weighed the Civ.R. 23 requirements of commonality,typicality and predominance . ............................................................................................ 11

II. CONCLUSION ................................................................................................................. 14

i

TABLE OF AUTHORITIES

Cases

Almendares v. Palmer (N.D. Ohio 2004), 222 F.R.D. 324 .......................................................... 12

Allstate Ins. Co. v. Hague (1981), 449 U.S. 302 ............................................................................. 3

American Bronze Corp. v. Streamway Products (1982), 8 Ohio App.3d 223 ............................... 7

Beattie v. Centurytel, Inc. (C.A.6, 2007), 511 F.3d 554 ............................................................... 14

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217 ...................................................................... 10

Bowmer v. Dettlebach (1996), 109 Ohio App.3d 680 .................................................................... 8

Chavez v. Blue Sky Natural Beverage Co. (N.D. Cal. 2010), 2010 U.S. Dist. LEXIS 60554 at *40...................................................:................................................................................................. 5

Central Transpor;; Inc. v. Cleveland Metallurgical Supply Co., 8th Dist. No. 63055, 1993 WL266924 at *3 ................................................................................:.............................................. 7

Clothesrigger, Inc. v. GTE Corp. (1987), 191 Cal. App. 3d 605 ................ :................................... 5

Cope v. Metropolitan Life Ins. Co. (1998), 82 Ohio St.3d 426 ...................................................... 9

Daffin v. Ford Motor Co. (C.A.6, 2006), 458 F.3d 549 ............................................................... 14

Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130 (C.A.7, 1981), 657 F.2d 890

..................................................................................................................................................... 9

Franchise Tax Bd. v. Hyatt (2005), 538 U.S. 488 .......................................................................... 4

Marks v. C.P. Chem. Co. (1987), 31 Ohio St.3d 200, syllabus .................................................... 10

Gergely v. Van Voorhis, 6`h Dist. No. E-90-36, 1992 Ohio App. LEXIS 384 .............................. 11

Hamilton v. Ohio Sav. Bank (1998), 82 Ohio St.3d 67 ..............................................::........... 10, 13

In re Mercedes-Benz Tele Aid Contract Litigation, 257 F.R.D at 69 ......................................... 5, 8

In re Mercedes-Benz Tele Aid Contract Litigation, 267 F.R.D at 113 ........................................... 5

In re Visa Check/MasterMoney Antitrust Litig. (C.A.2, 2001), 280 F.3d 124 ............................. 13

In re Welding Furne Products Liability Litigation (N.D. Ohio 2007), 245 F.R.D. 279 ............... 10

International Ins. Co. v. Stonewall Ins. Co. (S.D. Ohio 1994), 863 F.Supp. 599 .......................... 8

Lerch v. Citizens First Bank Corp., Inc. (D.N.J. 1990), 144 F.R.D. 247 ....................................... 5

Lowe v. Sun Refining & Marketing Co. (1992), 75 Ohio App.3d 563 .......................................... 12

Manigault v. Ford Motor Co., 96 Ohio St.3d 431, 2002-Ohio-5057 at ¶ 17 ............................... 11

Marks v. C.P. Chem. Co., (1987), 31 Ohio St.3d 200, syllabus ................................................... 10

Meek v. Gem Boat Serv., (1993), 86 Ohio App.3d 322 .................................................................. 1

Miller v. Volkswagen ofAm., Inc., 6^" Dist. No. E-07-047, 2008-Ohio-4736 .............................. 11

ii

Moorjani v. Mid Ohio Sec., 6th Dist. No. L-07-1249, 2008-Ohio-2727 ....................................... 11

Ms. X. v. Rogers, 6"` Dist. No. S-02-042, 2003-Ohio-5976 .......................................................... 11

Ohayon v. Safeco Ins. Co. oflllinois (2001), 91 Ohio St.3d 474 ................................................... 6

Pevets v. Crain Communications, Inc., 6th Dist. No. OT-10-023, 2011-Ohio-2700 at ¶ 36.... 7, 13

Philips Petroleum Co. v. Shutts (1985), 472 U.S. 797 ..........................:..................................... 3, 4

Powers v. Hamilton Co. Public Defender Commission (C.A.6, 2007), 501 F.3d 592 ................. 13

Putnam v. Davis (S.D. Ohio 1993), 169 F.R.D. 89 ...............................:...................................... 12

Ross v. Abercombie & Fitch Co. (S.D. Ohio 2009), 257 F.R.D. 435 ........................................... 12

Schmidt v. Avco. Corp. (1984), 15 Ohio App.3d 81, 85, aff'd 15 Ohio St.3d 310 ....................... 11

Shaver v. Standard Oil Co. (1993), 89 Ohio App.3d 52 ............................................................... 11

Stammco, L.L.C. v. United Tel. Co. of Ohio, 125 Ohio St.3d 91, 2010-Ohio-1042 at ¶ 12 ... 10, 11

Sun Oil Co. v. Wortman (1988), 486 U.S. 717 ............................................................................... 4

Sweet v. Gen. Tire and Rubber Co. (N.D. Ohio 1976), 74 F.R.D. 333 ........................................ 12

Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) ............................................................... 13

Warner v. Waste Mgt. Inc. (1988), 36 Ohio St.3d 91 ............................................................. 11, 12

Waste Mgmt. Holdings, Inc. v. Mowbray (C.A.1, 2000), 208 F.3d 288 ....................................... 13

Williams v. Countrywide Home Loans, Inc., 6h Dist. No. L-06-1120, 2007-Ohio-5353 ............. 11

Other Authorities

Federal Class Action: Past, Present and Future (2 Ed. 1977) at 24 .............................................. 12

Full Faith and Credit--The Lawyer's Clause of the Constitution, 45 Colum. L. Rev. 1, 16(1945) 4

Restatement (Second) of Conflict of Laws ..............................................................................2, 5-8

Rules

Civ.R. 23 ..........................................................................................................................2, 9, 11-13

ui

STATEMENT REGARDING WHETHER THIS CASE PRESENTS A SUBSTANTIALCONSTUTIONAL OUESTION OR IS OF GREAT PUBLIC INTEREST.

Despite Appellant Crain Communications' strong and sometimes apocalyptic language,

this case involves a simple dispute and an unremarkable class certification order. Crain long

published "AutoWeek." As its name implied, the magazine was a well-established weekly

publication targeted to automobile enthusiasts. In January 2009, Crain reduced AutoWeek's

publication schedule from weekly to bi-weekly. In order to escape the notion of a weekly

publication, Crain also re-titled the magazine as "AW." Plaintiff Michael Pevets, as well as all

members of the class certified by the trial court, prepaid for a weekly subscription and received a

bi-weekly publication instead. To be clear, Crain changed the publication schedule only after

pocketing the subscription fees of Pevets and class members.

The central dispute here is straightforward. Plaintiff claims that he did not received what

he paid for and should be compensated for Crain's unilateral decision to reduce the publication

schedule. Crain claims that it acted lawfully in the first instance and/or that Pevets failed to

object to the change in a sufficiently timely or forceful matter. Thus, Crain puts forth a number

of legal theories under which Pevets and class members waived their claims or are otherwise not

entitled to pursue them. Notably, the evidence before the trial court, in the form of an affidavit

supplied by Crain's own subscription manager, showed that Pevets acted in the same manner as

the overwhelming majority of class members: continuing to receive the publication and

ultimately renewing his subscription.

After considering the evidence before it, the trial court concluded the dispute can and

should be resolved on a simultaneous, class-wide basis for all of the magazine's subscribers. A

unanimous Sixth District Court of Appeals affirmed.

1

There is nothing particularly remarkable, let alone unconstitutional, about the class

certification order at issue here. In fact, both the trial and appellate courts properly recognized

that this case is perfectly suited for certification under Civ.R. 23 because it aggregates a large

number of relatively small claims, perhaps $20 each, and allows them to be pursued together.

By attacking the trial court's order based on relatively minor differences between

AutoWeek/AW subscribers' motivation for subscribing or their reaction to the change, Crain

attempts to distract from a well-established principle of law goveming class certification: courts

are to look to the common course of conduct by the defendant to determine whether the Civ.R.

23 requirements of commonality and predominance are satisfied. Here, all class members paid

for a subscription to a weekly publication and received a bi-weekly subscription in return. The

question to be resolved here is whether Crain acted lawfully.

Similarly, Crain attacks the courts below for applying the law of its home state,

Michigan, to Pevets' claim and the claims of all class members. Crain is incorrect on two

accounts. First, with respect to Pevets' individual claim, the trial court properly applied the

"most significant relationship" analysis adopted by the RESTATEMENT (SECOND) OF CONFLICT OF

LAWS ("the Restatement") and this Court. Second, the uniform application of Michigan law to

the claims of absent class members is well within the bounds of constitutional due process.

Simply put, Crain is wrong with respect its central choice of law argument. The federal

Constitution does not require a detailed choice of law analysis for each class member. Instead,

the Constitution prohibits the application of an arbitrary or fundamentally unfair body of

substantive law to their claims. That is, the trial court's choice of law analysis can

constitutionally reach more than one result. Because all AutoWeek/AW subscriptions involve a

publication produced in Michigan by a corporation with its principal place of business in that

2

state, the selection of Michigan law could hardly be characterized as arbitrary or unfair. Crain, a

Michigan citizen, is certainly not in a position to complain.

Because the class certification order from which Crain appeals is neither unusual nor

remotely unconstitutional, this Court should decline to accept jurisdiction. No substantial

constitutional question or matter of great public importance is presented here and, after careful

attention below, further review is not necessary.

1. RESPONSE TO CRAIN'S PROPOSED PROPOSITIONS OF LAW

A. Response to Proposition of Law No. 1: The courts below properly applied Ohio's"most significant relationship" test and determined that Michigan's substantive lawapplied to Appellee's individual claim. Extending this analysis to all of themagazine's subscribers does not run afoul of anyone's constitutional right to dueprocess of law.

1. The uniform application of the law of Crain's home state to this class action doesnot come close to triQgering constitutional due process concerns.

Relying mostly on law review commentary, Crain suggests that multi-state class

certification of state law claims is per se inappropriate. This approach is not the majority rule

nor is it required by due process concerns under the federal Constitution.

In fact, due process concerns are generally only triggered by the selection of a body of

law with little connection to the majority of the claims asserted and a substantive conflict of law.

"[F]or a State's substantive law to be selected in a constitutionally permissible manner, that State

must have a significant contact or significant aggregation of contacts, creating state interests,

such that choice of its law is neither arbitrary nor fundamentally unfair." Philips Petroleum Co.

v. Shutts (1985), 472 U.S. 797, 818, citing Allstate Ins. Co. v. Hague (1981), 449 U.S. 302, 312-

313. However, "it is frequently the case under the Full Faith and Credit Clause that a court can

lawfully apply either the law of one State or the contrary law of another." Franchise Tax Bd. v.

3

Hyatt (2005), 538 U.S. 488, 496-497, quoting Sun Oil Co. v. Wortman (1988), 486 U.S. 717,

727.

As Justice Jackson observed over six decades ago, "it [is] difficult to point to any field in

which the [U.S. Supreme] Court has more completely demonstrated or more candidly confessed

the lack of guiding standards of a legal character than in trying to determine what choice of law

is required by the Constitution." Hyatt, 486 U.S. at 496, quoting Robert H. Jackson, Full Faith

and Credit--The Lawyer's Clause of the Constitution, 45 Colum. L. Rev. 1, 16 (1945). As a

result well-established constitutional precedent provides states and lower courts with a great deal

of latitude in the choice of law field.

In the class certification context, the total absence of any connection between the chosen

substantive body of law and the majority of class members is the threshold actually sufficient

trigger a constitutional concern as in Shutts. In that case, Plaintiffs filed a class action in Kansas

on behalf of oil leaseholders in I 1 states. Over 99 percent of the gas leases and 97 percent of the

members of the plaintiff-class had "no apparent connection to the State of Kansas except for this

lawsuit." Shutts, 472 U.S. at 816. Further, several other states with a far greater number

resident-leaseholders than Kansas, such as Texas and Oklahoma, would apply different interest

rates to the delayed payments than would Kansas. Id. at 800-801. "Given Kansas' lack of

`interest' in claims unrelated to that State, and the substantive conflict with jurisdictions such as

Texas, we conclude that application of Kansas law to every claim in this case is sufficiently

arbitrary and unfair as to exceed constitutional limits." Id. at 821-822.

Here, the AutoWeek/AW subscription of every class member has a significant contact

with the state of Michigan, the publisher's home state. As a result, that state has significant

contacts with all of the disputed subscription contracts and all of the class members. Nor, in

4

stark contrast to the picture painted by Crain, is this approach unique. Federal courts have

recently and routinely certified consumer class actions using the substantive law of the

defendant's home state. See Lerch v. Citizens First Bank Corp., Inc. (D.N.J. 1990), 144 F.R.D.

247, 257; Chavez v. Blue Sky Natural Beverage Co. (N.D. Cal. 2010), 2010 U.S. Dist. LEXIS

60554 at *40, citing Clothesrigger, Inc. v. GTE Corp. (1987), 191 Cal. App. 3d 605, 613

("Defendants are headquartered in California and their misconduct allegedly originated in

California. With significant contacts between California and the claims asserted by the class,

application of California consumer protection laws would not be arbitrary or unfair to

defendants"); In re Mercedes-Benz Tele Aid Contract Litigation (D.N.J. 2009), 257 F.R.D. 46,

67-69, motion to decertify denied by In re Mercedes-Benz Tele Aid Contract Litigation (D.N.J.

2010), 267 F.R.D. 113 (applying the Restatement § 6 general choice of law factors in the context

of a multi-state class action).

Out of necessity, the Constitution gives a wide berth in the choice of law field. The

application of Michigan law to a class action against a Michigan defendant does not even

approach the limits of due process.

2. Crain's shifting representations regarding its own "location."

Before turning to Ohio's specific choice of law rules, mention must be made of Crain's

evolving representations regarding its own location. In two trial court filings, Crain represented

to the trial court that its "location" was in Michigan and posed a choice of law analysis focused

on Ohio and Michigan.' The publisher made no mention of other states. Although the trial court

ultimately rejected Crain's legal analysis, it reasonably accepted the publisher's factual

representations about its own "location" at face value.

1 See Crain's Brief in Support of Summary Judgment, Filed April 1, 2010 at pp. 2-5; Crain'sBrief in Opposition to Plaintiff s Motion for Class Certification filed April 1, 2010 at pp. 18-20.

5

Having lost at the trial court, Crain dropped cryptic hints for the first time in its appellate

briefing suggesting that it may not, in fact, be "located" in Michigan. Before this Court, Crain

now almost completely disavows all connection with its home state, and suggests that perhaps

AutoWeek/AW is really published or produced elsewhere. See Crain's Amended Memorandum

in Support of Jurisdiction at p. 10. Crain's shifting position implicates the doctrine of judicial

estoppel, which "prevent[s] a party from abusing the judicial process through cynical

gamesmanship, achieving success on one position, then arguing the opposing to suit an exigency

of the moment." Greer-Burger v. Temesi, 116 Ohio St. 3d 324, 2007-Ohio-6442 at ¶ 25.

Moreover, Crain's mid-stream change of position illustrates the rationale for investing the

trial court with discretion in the class certification arena. If this case is accepted for discretionary

review, Crain evidently intends to revamp its representations to the trial court regarding its own

"location" in hopes of achieving a different result. This approach is clearly outside of spirit of

the discretionary review that Crain seeks. Crain is simply seeking to re-litigate the trial court's

factual finding regarding its own legal whereabouts. Since these findings are based on the

publisher's own representations, it should be denied the opportunity.

3. The trial court's ap lication of the Restatement § 188 factors for choosing thesubstantive body of law in a contract action was both correct and unworthy ofreview.

Both parties agree that Ohio resolves choice of law issues in contract cases by reference

to the factors set for in Restatement § 188 and attempting to idenfify the state with the "most

significant relationship" to the contract at issue. Ohayon v. Safeco Ins. Co. oflllinois (2001), 91

Ohio St.3d 474. The section provides:

In the absence of an effective choice of law by the parties (see § 187), the contactsto be taken into account in applying the principles of Section 6 to determine thelaw applicable to an issue include: a) the place of contracting; b) the place ofnegotiation; c) the place of performance; d) the location of the subject matter; and

6

e) the domicile, residence, nationality, place of incorporation, and place of

business of the parties.

Merely reciting these factors in the context of the present dispute identifies the difficulty here.

At its core, this case involves the production and shipment of a magazine in one state to a

subscriber residing in another. With respect to Crain, most of the factors point toward its

"location" in Michigan (performance, principal place of business). With respect to Pevets, these

same factors point toward his residence in Ohio. On their face, other factors appear inapplicable

or inconclusive (location of the subject matter, place of negotiation). Between these parties, the

contract-specific factors in Restatement §188 do not provide particularly strong guidance.

The trial court determined that one factor, the place of contacting, firmly points toward

Michigan because it "is generally understood to be the place where the last act necessary to give

the contract binding effect occurred." Curl v. Greenlee Textron, Inc. (S.D. Ohio 2005), 404

F.Supp.2d 1001, 1012. In this case, the contract between Crain and its subscribers was formed

when Crain accepted offers to subscribe and began performance in Michigan. See Central

Transport, Inc. v. Cleveland Metallurgical Supply Co., 8th Dist. No. 63055, 1993 WL 266924 at

*3, citing American Bronze Corp. v. Streamway Products (1982), 8 Ohio App.3d 223, 227

(generally the submission of a purchase order is viewed as being an offer which may be accepted

or rejected by the seller). In addition, the trial court found that Crain's production of

AutoWeek/AW in Michigan constituted a more substantial performance than Pevets'

consumption of the magazine in Ohio. Thus the "place of performance" prong of Restatement §

188 favored the application of Michigan law. This conclusion could hardly be characterized as

unreasonable.

On review, the Sixth District simply acknowledged what is manifestly true: the

Restatement § 188 factors do not particularly favor either state. Pevets v. Crain

7

Communications, Inc., 6th Dist. No. OT-10-023, 2011-Ohio-2700 at ¶ 36. To varying degrees,

both courts also considered the general choice of law factors set forth Restatement § 6, including

the "needs of interstate judicial system," "relevant policies of other interested states and the

relative interests of those states in the determination of the particular issue" and "the protection

of justified expectations." Both courts below recognized that these factors point toward the

uniform application of Michigan law, both because that state has a unique interest in regulating a

resident corporation and because doing otherwise would effectively defeat class certification

under circumstances in which no other state had a particularly strong interest in the outcome. Id.

at ¶¶ 41. Neither conclusion is unprecedented.

The use of the Restatement § 6 factors to resolve a close choice of law issue in the

context of a contract claim is hardly unique. See Curl v. Greenlee Textron, Inc. (S.D. Ohio

2005), 404 F.Supp.2d 1001, 1011-12; Bowmer v. Dettlebach (1996), 109 Ohio App.3d 680, 685-

86; International Ins. Co. v. Stonewall Ins. Co. (S.D. Ohio 1994), 863 F.Supp. 599, 602,2 aff'd

86 F.3d 601. Nor was the trial court unique in considering whether, at the margin, class

certification would be facilitated by the uniform application the law of the defendant's home

state. See In re Mercedes-Benz Tele Aid Contract Litigation, 257 F.R.D at 69 (noting that the

relatively paltry sums available in individual actions is a legitimate factor to consider under

Restatement § 6).

Crain aggressively attacks reasoning of Ohio's courts as decisions of convenience: "if

you have to choose one, why not Michigan?" See Crain's Amended Memorandum in Support of

Jurisdiction at p. 10. Of course, the converse is also true. If one is looking for a reason to avoid

class certification, and thus meaningful liability, why not choose to apply the law of all fifty

2 "As noted, these Section 188 factors for determining the choice of laws for contractinterpretation are to be considered in light of the rules articulated in [Section 6]."

8

states? "It is often the defendant, preferring not to be successfully sued by anyone, who

supposedly undertakes to assist the court in determining whether a putative class should be

certified. ***[I]t is a bit like permitting a fox, although with a pious countenance, to take charge

of the chicken house." Cope v. Metropolitan Life Ins. Co. (1998), 82 Ohio St.3d 426, 437,

quoting Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130 (C.A.7, 1981), 657

F.2d 890, 895.

In truth, both courts below conducted an extensive review of the choice of law issue and

reached a reasoned conclusion using both the general and contract-specific provisions in the

Restatement. Crain is dissatisfied with the result. The defendant's unhappiness with the result

is not sufficient to invoke this Court's discretionary review.

B. Response to Proposition of Law No. 2: Well-established rules governing classcertification direct courts to the common course of conduct by the defendant. Thefactual circumstances surrounding each individual class member need not beidentical.

Crain's second proposition of law is particularly unworthy of review.

Although Crain works mightily to distract attention from this fact, Civ.R. 23 simply does

not require the factual circumstances surrounding each class member to be identical. Instead, the

rule requires that all class members be affected by the same general policy or practice of the

defendant in substantially the same manner. Here, all class members were affected by the

reduced publication schedule in essentially the same manner: 1) all class members prepaid for a

subscription to the same weekly publication; 2) class members received identical notice of the

change in publication frequency in the form of a column by Editor Dutch Mandel published in

9

the January 12, 2009 edition of the magazine3; and 3) class members received precisely the same

bi-weekly publication after the change.

In light of the law governing class certification and the considerable discretion invested

in the trial court, the trial's court's order should not be disturbed.

1. The trial court's class certification order is entitled to considerable discretion andshould not be disturbed.

Crain's challenge to the trial court's class certification is reviewable only for abuse of

discretion. Hamilton v. Ohio Sav. Bank (1998), 82 Ohio St.3d 67, 70; Marks v. C.P. Chem. Co.

(1987), 31 Ohio St.3d 200, syllabus. "The term `abuse of discretion' connotes more than an

error of law or judgment; it implies an attitude that is unreasonable, arbitrary or unconscionable."

Id., quoting Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

The broad discretion enjoyed by the trial court in determining whether to certify a class

goes principally to the question of whether it reasonably concludes it could manage the

complexities that class certification carries. In re Welding Fume Products Liability Litigation

(N.D. Ohio 2007), 245 F.R.D. 279, 294. Decisions regarding the scope of the questions to be

treated on a class-wide and individualized basis are traditionally left to the trial court. Stammco,

L.L.C. v. United 7e1. Co. of Ohio, 125 Ohio St.3d 91, 2010-Ohio-1042 at ¶ 12, accord Hamilton,

82 Ohio St.3d at 70 ("[T]he appropriateness of applying the abuse-of-discretion standard in

reviewing class action determinations is grounded not in credibility assessment, but in the trial

court's special expertise and familiarity with case-management problems and its inherent power

to manage its own docket").

3 Throughout its memorandum in support of jurisdiction, Crain offers speculation regardingpotential variations between class members. However, none of the publisher's assertions touchon the notice given to class members. The change in publication was uniformly announced to all

subscribers in the Mandel column.

10

Moreover, the unanimous decision by the Sixth District is entitled to a measure of

deference, particularly an opinion authored by a distinguished jurist who has written extensively

on the subject of class certification.4 This Court will grant discretionary review "only if there is a

substantial constitutional question or if the case is ofpublic or great general interest. * * * Novel

questions of law or procedure appeal not only to the legal profession but also to this court's

collective interest in jurisprudence." Manigault v. Ford Motor Co., 96 Ohio St.3d 431, 2002-

Ohio-5057 at ¶ 17 (Lundberg Stratton, J., dissenting). Out of both necessity and constitutional

design, this Court does not accept cases for review simply to second-guess the appellate court.

2. The trial court properly weighed the Civ.R. 23 requirements of commonality,typicality and predominance.

Crain attacks the courts below for supposedly failing to recognize that the facts

surrounding Pevets' individual claims varied somewhat from those of the absent class members.

In fact, both the trial court and the Sixth District noted that some individualized factual issues

may exist, but correctly determined that class-wide liability questions predominate. The trial

court simply cannot be said to have abused its discretion in this respect.

Courts generally take a permissive view of the "commonality" requirement contained in

Civ.R. 23(A)(2). Warner v. Waste Mgt. Inc. (1988), 36 Ohio St.3d 91, 97. The provision "does

not demand that all the questions of law or fact raised by the dispute be common." Schmidt v.

Avco. Corp. (1984), 15 Ohio App.3d 81, 85, aff'd 15 Ohio St.3d 310. "Commonality" can be

satisfied by a showing of either a common nucleus of operative facts or the existence of legal

^ Miller v. Volkswagen of Am., Inc., 6th Dist. No. E-07-047, 2008-Ohio-4736; Stammco, LLC v.United Tel. Co., 6th Dist. No. F-07-024, 2008-Ohio-3845; Moorjani v. Mid Ohio Sec., 6th Dist.No. L-07-1249, 2008-Ohio-2727; Williams v. Countrywide Home Loans, Inc., 6th Dist. No. L-06-1120, 2007-Ohio-5353; Ms. X. v. Rogers, 6th Dist. No. S-02-042, 2003-Ohio-5976; Shaver v.Standard Oil Co. (1993), 89 Ohio App.3d 52; Meek v. Gem Boat Serv. ( 1993), 86 Ohio App.3d322; Gergely v. Van Voorhis, 6th Dist. No. E-90-36, 1992 Ohio App. LEXIS 384.

11

questions common to the class. Lowe v. Sun Refining & Marketing Co. (1992), 75 Ohio App.3d

563, 570.

If there is a common liability issue, [Fed. R. Civ. P.] 23(a)(2) is satisfied.Similarly, if there is a common fact question relating to negligence, or theexistence of a contract or its breach, or a practice of discrimination, ormisrepresentation, or conspiracy, or pollution, or the existence of a particularcourse of conduct, the Rule is satisfied. Typically, the subdivision (a)(2)requirement is met without difficulty for the parties and very little time needbe expended on it by the *** judge.

Warner, 36 Ohio St.3d at 97, quoting Miller, An Overview of Federal Class Action: Past, Present

and Future (2 Ed. 1977) at 24 (emphasis added).

Importantly, the commonality requirement focuses on the conduct of the defendant. "The

commonality requirement will be satisfied as long as the members of the class have allegedly

been affected by a general policy of the Defendant and the general policy is the focus of the

litigation." Ross v. Abercombie & Fitch Co. (S.D. Ohio 2009), 257 F.R.D. 435, 442 citing

Putnam v. Davis (S.D. Ohio 1993), 169 F.R.D. 89, 93. See also: Almendares v. Palmer (N.D.

Ohio 2004), 222 F.R.D. 324, 331 quoting Sweet v. Gen. Tire and Rubber Co. (N.D. Ohio 1976),

74 F.R.D. 333, 335.

Although widely viewed as limiting the availability of class certification under Federal

Rule 23, the U.S. Supreme Court's recent decision in the Wal-Mart gender discrimination case

re-emphasized the need to focus on the common course of conduct by the defendant. The

Supreme Court held that class certification was inappropriate in that case precisely because those

Plaintiffs were unable to point to a single, overarching discriminatory practice linking together

employment decisions at all of the chain's stores. "Without some glue holding the alleged

reasons for all those decisions together, it would be impossible to say that examination of all

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class members' claims will produce a common answer." Wal-Mart Stores, Inc. v. Dukes, 131

S.Ct. 2541, 2552 (2011).

Here, the dispute centers on a single, discrete decision by Crain to reduce the publication

schedule from weekly to bi-weekly. This is the "glue" holding the class together. Either Crain

acted lawfully when it summarily halved the number of issues in a prepaid subscription or it did

not. The common questions of law and fact identified by the trial court and affirmed by the

Sixth District collectively resolve this issue: whether Crain entered into a contract with

subscribers; whether the contract required Crain to deliver a weekly news service; and, whether

Crain breached the contract by changing the publication frequency. Pevets, 2011-Ohio-2700 at ¶

18. These quese.ions are not merely peripheral to the litigation, but will very effectively

determine liability on a class wide basis.

Similarly, the predominance test embodied by Civ.R. 23(B)(3) does not require each

class member's claims to be identical. "The predominance requirement is met if the common

question identified is "at the heart of the litigation." Powers v. Hamilton Co. Public Defender

Commission (C.A.6, 2007), 501 F.3d 592, 619. Accordingly, "[c]ases alleging a single course of

wrongful conduct are particularly well-suited to class certification." Id. "[T]he fact that a

defense `may arise and may affect different class members differently does not compel a finding

that individual issues predominate over common ones."' In re Visa Check/MasterMoney

Antitrust Litig. (C.A.2, 2001), 280 F.3d 124, 136, quoting Waste Mgmt. Holdings, Inc. v.

Mowbray (C.A,1, 2000), 208 F.3d 288, 296.

As unanimously recognized by the courts below, issues identified by Crain as

"individualized" are simply not sufficient to predominate over the class-wide contractual liability

determination. The fact that some AutoWeek/AW subscribers were more interested in racing

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coverage than reviews of new models does not affect the dispute here: each class member

subscribed to a weekly magazine and received something else in retum. Similarly, the reaction

of subscribers to the change is not subject to infinite variation. Either a subscriber expressed an

object to the reduction or she did not, and she did so on a particular date. This information

should be readily obtainable from Crain's business records.

Consumers in every single product liability and consumer action have individual and

subjective reasons for their purchases, yet courts regularly certify class actions in these areas.

See: Daffin v. Ford Motor Co. (C.A.6, 2006), 458 F.3d 549 (upholding a class alleging an

automaker breached express warranty by providing vehicles with defectively designed throttle

body assemblies without resort to why individual consumers purchased a particular vehicle);

Beattie v. Centurytel, Inc. (C.A.6, 2007), 511 F.3d 554, 562 (whether a customer authorized

enrollment in a particular cell-phone service, benefitted from the plan or subjectively would have

terminated enrollment had the disputed billing statement been clearer did not prevent

certification of a consumer class action challenging provider's billing practice).

II. CONCLUSION

The class certification order at issue here is neither unusual nor worthy of this Court's

discretionary review.

is E. Murray, Jr. (0038509)(COUNSEL OF RECORD)dmj ^,murrayandmurra .}comDennis E. Murray, Sr. (0008783)dmsgmurrayandmurra .mMichael J. Stewart (0082257)mj spmurrayandmurraV.comMurray & Murray Co., L.P.A.

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111 East Shoreline DriveSandusky, OH 44870-2517Telephone: (419) 624-3126Facsimile: (419) 624-0707

COUNSEL FOR APPELLEE, MICHAEL PEVETS

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Certificate of Service

I hereby certify that a copy of the foregoing has been sent by ordinary U.S. mail on this

29th day of August, 2011 to the following:

Fritz Byersfbyers kcisp.com824 Spitzer Building520 Madison AvenueToledo, OH 43604-1305Telephone: (419) 241-8013Facsimile: (419) 241-4215

William PietrykowskiManahan, Pietrykowski, Delaney & Wasielewski125 Jefferson Street, Suite BPort Clinton, OH 43452Telephone: (419) 734-5516Facsimile: (419) 732-8246wpietrykowskiknpdwlaw.com

Robert JacksonHonigman Miller Schwartz and Cohn LLP

2290 First National Building660 Woodward AyenueDetroit, MI 48226-3 506Telephone: (313) 465-7000Facsimile: (313) 465-58000rjackson n,honigman..com

COUNSEL FOR APPELLANT, CRAIN COMMUNICATIONS, INC.

is E. Murray; Jr.Counsel of Record

COUNSEL FOR APPELLEE, MICHAEL PEVETS

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