The opinion of the court was delivered by: TEITELBAUM
This class action which challenges the defendant national banks' computation of the interest service charge on goods and services purchased using credit cards issued by the banks is once again before the Court, this time on cross-motions for summary judgment. (See Haas et al. v. PNB et al., 60 F.R.D. 604 (W.D.Pa.1973), the previous Opinion, wherein the facts of the case are set out in some detail.) Before the merits of the case may be considered, however, the propriety of passing upon a motion for summary judgment prior to sending out class notice must first be discussed. Since at various times in this litigation the parties have taken diametrically opposite stands on this recurrent and important question, a definitive decision on this point seems indicated.
We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements for it. He is thereby allowed to obtain a determination on the merits of the claims advanced on behalf of the class without any assurance that a class action may be maintained. This procedure is directly contrary to the command of subdivision (c)(1) that the court determine whether a suit denominated a class action may be maintained as such "as soon as practicable after the commencement of [the] action. . . ." 94 S. Ct. at 2152.
It is not disputed that the language quoted above is the precise holding of the Eisen court on the matter of preliminary mini-hearings in Rule 23 class actions. The question here is whether, in so holding, Eisen ruled sub silentio that any consideration of the merits of a case was impermissible prior to a class determination and/or the sending out of notice to the class. I rule here, as I have ruled previously,
that a district court may consider the merits of a plaintiff's case in an action denominated as a class action by ruling upon a motion for summary judgment (or a motion to dismiss)
prior to ruling upon a motion for class determination or requiring that notice be sent to the class, once a class has been determined. Nothing in either the Eisen decision nor Rule 23 itself precludes such a result.
In the previous Opinion in the case sub judice, it was determined that a plaintiff class existed under subdivision (b)(3) of Rule 23; that is, it was determined that questions of law or fact common to members of the class predominated over questions affecting only individual members and that a class action was superior to other available methods for adjudication of the controversy.
Thus, as per the express language of subdivision (c)(2) of Rule 23 ("In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort."), one of the options now available to the court would be to order that individual notice be sent to identifiable class members at cost to the representative plaintiff. Because in this case the class has been certified but notice has not been sent, we are in a slightly different procedural context than existed in those cases wherein a court was faced simultaneously with a motion or motions for summary judgment along with a motion for class determination. Needless to say, those cases where, faced with the latter situation, the court granted the motion for class determination without considering a motion for summary judgment or granted a class determination motion without a motion for summary judgment having been filed,
cannot be said to demonstrate the proposition that a court must determine class and direct that notice be sent before a motion to consider the merits of the case may be passed upon. The simple fact of the matter is that those cases did not consider the question with which we are faced in this case. By the same token, those cases wherein a court, having simultaneously before it motions for summary judgment and class determination, granted the former for the defendant and obviated the necessity for passing upon the latter, are persuasive only by implication, for they too fail to consider every aspect of the question before this court.
In considering this question, the line of decision represented by Huff v. N. D. Cass Company of Alabama, 485 F.2d 710 (5th Cir. 1973), and Miller v. Mackey International Inc., 452 F.2d 424 (5th Cir. 1971) must be considered. In Huff, the Fifth Circuit Court of Appeals held that a representative plaintiff in an employment discrimination class action should not be disqualified by reason of an advance determination that his claim is predictably not a winning claim and that, therefore, he cannot adequately represent the class as mandated by Rule 23(a)(4). The Huff case cites and relies upon the following quotation from Miller v. Mackey Int'l, Inc.: "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Id., 452 F.2d at 427. Presumably because both the Huff and Miller cases reverse district court decisions in which class actions were dismissed without class certification or notice to the class, they are cited inaccurately for the proposition that under no circumstances may a district court consider the merits of a case without first having set the class action mechanism in motion.
My reading of the Huff and Miller cases is that they do no more than set out the seemingly self-evident proposition that a class action motion is not a motion for summary judgment and may not be treated by the court as such. This point would seem to have been made in a decision which cites both the Miller case and the Eisen case at the Circuit level in support of its holding, Dorfman v. First Boston Corp., 62 F.R.D. 466 (E.D.Pa.1973) where it is stated:
The proposition for which the Huff, Miller and Dorfman cases stand -- that a class action motion may not be treated as a motion for summary judgment -- involves a separate and distinct issue from that under consideration here. The question here is whether or not a district court may pass upon a properly filed motion for summary judgment without first having activated the procedural safeguard of notice to all class members. I hold that in order to avoid a potentially needless expenditure of court time and plaintiff's money, it may. It need hardly be pointed out that if the decision on summary judgment is for plaintiff, that is either a judgment that questions of fact remain which necessitates a trial of the issues involved or a judgment for plaintiff on the merits, the opportunity always remains for the court to undertake class certification and/or notice to the class at that later stage without undue prejudice to either side.
The Eisen case itself presents no bar to such a holding because it does not address itself directly to the question here at hand. The precise question upon which the Eisen court ruled was whether a district court could conduct a preliminary mini-hearing on the merits of a class action in order to apportion the costs of notice. The preliminary minihearing, as explained in Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y.1968) and the district court opinion in Eisen, 54 F.R.D. 565 (S.D.N.Y.1972), was designed to effect a formal inquiry into the question of which side was more likely to prevail on the merits of the case so that the costs of notice could be apportioned according to the likely eventual outcome of the suit. It is readily apparent that because, as the Supreme Court pointed out, such a hearing would not be "accompanied by the traditional rules and procedures applicable to civil trials . . ." ( Id., 94 S. Ct. at 2153), serious problems of due process and what might be called civil double jeopardy are presented for class action defendants.
Summary judgment presents none of the difficulties which caused the Supreme Court to strike down the preliminary mini-hearing concept since, under the standard of Rule 56, it can constitute a final, appealable decision of the case. Because no court may resort to summary judgment determination until it has determined that no genuine issue of material fact remains in the case and only questions of law are left for resolution, the preliminary mini-hearing's spectre of placing the defendant in double peril is not presented. Moreover, Rule 56 and the case law interpreting it have clearly delineated the procedural protections entailed in handling a motion for summary judgment.
The strongest argument in favor of the proposition that the Supreme Court in Eisen meant to rule that no consideration of the merits of a nominal class action could take place until both class certification and notice to the class had been accomplished springs from the following language in the case: "Rule  was intended to insure that the judgment, whether favorable or not, would bind all class members who did not request exclusion from the suit." Eisen, 94 S. Ct. at 2152. The reasoning is that only where a decision on the merits has been preceded by both class certification and notice to the class can it be absolutely certain that the defendant will no longer be ...