Tuesday, June 19, 2007, 11:52 AM

COA Affirms Denial of Class Cert.

In Peverall v. County of Alamance, filed today, the COA affirmed the denial of class certification. The COA held that the named plaintiff needed but failed to show numerosity, commonality, and adequacy of representation.

Peverall, a county employee, retired due to disability in 1999. Shortly after Peverall's retirement, the county, which was self-insured, passed an ordinance retroactively changing the length of service required for county employees to receive disability insurance benefits from 5 years to 20 years. Peverall, who had served for more than 5 but less than 20 years, brought a putative class action against the county, but the trial court denied class certification.

The COA held that the trial court did not err in finding no numerosity making joining all parties impracticable. The number of potential plantiffs actually effected by the ordinance was only 7. And the COA held the trial court did not abuse its discretion in refusing to certify a class consisting of people beyond those 7 who might or might not be effected by the county's change from 5 to 20 years.

The COA also held that the trial court did not abuse its discretion in determining that common issues did not predominate. Central to that determination was the fact that Peverall retired before the county ordinance changed the requisite service time, while the other potential plaintiffs retired only after the change had gone into effect.

The COA then looked to the trial court's determination that Peverall would not have been an adequate representative. The COA held that because Peverall and the other potential 6 plaintiffs retired under different disability benefit regimes, they have different claims and damages. The COA, in its adequacy analysis, looked to Harrison v. Wal-Mart, 170 N.C. App. 545, 613 S.E.2d 322 (2005). The COA indicated that the Harrison court upheld denial of class cert. "based upon, inter alia, the trial court's finding that a conflict of interest existed between class members who each had different oral contacts with their employer for lunch and rest breaks." The COA thereby characterized Harrison much more broadly than that case reads. Harrison, in its adequacy/conflicts of interest analysis, supported denying class cert. not simply due to differing contracts or damages amongst putative class members but due to conflicts between class members who acted as supervisors and the class members they supervised, who alleged that supervisory class members contributed to wrongs.

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