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Judd v. First Federal Savings and Loan Association of Indianapolis

decided: June 11, 1979.

FORREST STANLEY JUDD AND IVA JEAN JUDD, PLAINTIFFS-APPELLANTS,
v.
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF INDIANAPOLIS, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 76-C-410 -- Cale J. Holder, Judge.

Before Tone and Bauer, Circuit Judges, and Solomon, Senior District Judge.*fn*

Author: Per Curiam

Forrest and Iva Judd, appellants, filed an action against Meridian Mortgage Company (Meridian) and five Indianapolis banks for conspiracy to require mortgagors to deposit advance tax and insurance payments in escrow accounts on which the mortgagors receive no interest, all in violation of antitrust laws.

Appellants sought class action certification, the class to consist of all persons who obtained mortgage loans from the defendant mortgage company and banks.

In October 1976, the district court certified the class as all persons who obtained mortgage loans from Meridian between January 1, 1960 and July 22, 1976. Appellants moved to enlarge the certified class. The district court denied the motion.

In July 1977, the district court ordered appellants' counsel to compile a list of the names and addresses of class members by making a search of Meridian's business records (1977 order).

In November 1977, appellants learned that Meridian had a computer generated list of all of Meridian's 11,000 mortgagors, which list included between 1,650 and 4,000 names of mortgagors who are not within the certified class because they obtained their mortgages either before or after the specified period or from other companies.

Appellants filed a motion for permission to use the computer list for class notification purposes because it would cost between $16,000 and $24,000 less to use the computer list than to compile a class list from Meridian's files. Appellants agreed to include in the notice an explanation to help mortgagors determine whether they belong to the plaintiff class.

Meridian objected to the motion on the grounds that the computer list would confuse a great number of its customers, would require it to spend much time and money to answer inquiries generated by the notices and would damage Meridian's good will.

In July 1978, the district court denied appellants' motion and ordered them to comply with the 1977 order.

Appellants appeal from the July 1978 order. They assert that the district court failed to comply with Rule 23(c) Fed.R.Civ.P. which requires the court to "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."

We affirm on the ground that the order is not appealable.

We have "jurisdiction of appeals from all final decisions of the district courts . . . " 28 U.S.C. ยง 1291.

Appellants concede that the 1978 order is not a "final decision," but they assert that the order is appealable under the doctrine announced in Cohen v. Beneficial Industrial Loan, 337 ...


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