The opinion of the court was delivered by: LORD
CLASS ACTION ORDER NO. 71-11 (CALIFORNIA)
ORDER DETERMINING CERTAIN CLASSES AND DIRECTING RULE 23(c)(2) NOTICE TO CLASS MEMBERS
MILES W. LORD, District Judge (By Assignment).
On February 10, 1971, this court issued Class Action Order No. 71-5, 333 F. Supp. 278 which determined, under Fed. R. Civ. P. 23(c)(1), that this action may be conditionally maintained as a class action under Fed. R. Civ. P. 23(b)(3) by the plaintiff state as a representative party for a class of individual consumers which was defined in that Order. The court in issuing said Order deferred resolution of the questions of manageability of a consumer class and of the manner and form of notice under Fed. R. Civ. P. 23(b)(3)(D) and 23(c)(2). In order to develop a more adequate record upon which the court might determine those questions, Class Action Order 71-5 directed plaintiffs to respond to fourteen enumerated questions and requested replies thereto by defendants.
It now appearing that the definition of the class set forth in Class Action Order No. 71-5 fails to make clear the status of purchasers of broad spectrum antibiotic drug products from public and private hospitals and it further appearing that this group of purchasers should, at this time, be included in the class to whom notice is sent.
It is therefore ordered that the definition of the class set forth in Class Action Order No. 71-5 be, and is, amended to read as follows:
Purchasers within the state who, during the period 1954 through 1966, purchased or paid for broad spectrum antibiotic products for human consumption from public or private hospitals or from pharmacies, drugstores or other retail outlets, including the state, on account of payments made therefor for the benefit of recipients of welfare programs;
And the court having heard further argument on the matters comprehended by said order and in particular on the subjects of the manageability of the class and of the giving of notice to the class members and having read and considered briefs and memoranda of fact and law submitted by the parties in response to the direction of said Class Action Order No. 71-5 and being now fully advised in the premises finds after due consideration as follows:
1. The members of the class defined above are so numerous that joinder of all members of any such class in the same action is impracticable.
2. There are questions of law and fact common to such class.
3. The claim of the state as representative party is typical of the claims of the class represented.
4. The state party plaintiff to this action is determined to be a proper representative of its class here established and will fairly and adequately represent its class.
5. With respect to the class designated above, the questions of law and fact common to the members of the class predominate over any questions of law or fact affecting only individual members.
6. Notice may be directed to the class in a manner consistent with Fed. R. Civ. P. 23(c)(2).
7. The action on behalf of the class can be adequately managed so that a class action is superior to other methods for the fair and efficient adjudication of the controversy between members of the class and defendants.
It is therefore ordered that this action be maintained as a class action under F.R. Civ. P. 23(b)(3) by the state plaintiff for itself and as representative party for the class as amended. And the court having now considered the matter of giving appropriate Rule 23(c)(2) notice to the members of the class and having ...