A class action was brought by landowners in Louisiana, Mississippi and Texas against Entergy, alleging that the company engaged in unauthorized transmission of voice, data and video communications across their land. The plaintiffs argued that certification was appropriate under all three subsections of 23(b), or that, in the alternative, a “composite” (or “hybrid”) should be certified under (b)(2) for liability with opt-out provisions for damages under (b)(3). Affirming the district court’s denial of certification under 23(b)(1), the court explained that “the landowners have failed to put forward any scenario under which this litigation might establish incompatible standards of conduct. At worst, Entergy might be found liable to some landowners and not liable to others, forcing it to negotiate with victorious plaintiffs for the right to continue transmitting telecommunications over their property, or to reroute its transmissions. Were this to happen, Entergy’s obligations to various landowners would vary, but they would not be inconsistent. That is, it would not be the case that Entergy could not satisfy one judgment without contradicting the terms of another.” Following Allison, the court again blended the test for “coherence” under (b)(2) and the test for “predominance” under (b)(3) into effectively one test to determine whether damages were susceptible to mathematical formula or would require individualized mini-trials. Finally, the court reiterated that, in order to certify a “hybrid” or “composite” class, the action, taken as a whole, must satisfy the requirements of (b)(3). See Corley v. Orangefield Independent School District,152 Fed. Appx. 350, 2005 U.S. App. LEXIS 22139 (5th Cir. Oct. 17, 2005).
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