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August 27, 1997

SONDRA W. HYMAN, et al., Plaintiffs,
FIRST UNION CORP., et al., Defendants.

The opinion of the court was delivered by: LAMBERTH

 I. Standard of Review

 Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Inferences drawn from the facts must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). If summary judgment is to be denied, there must be evidence on which the jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment may be granted. Celotex, 477 U.S. at 322.

 II. Plaintiffs' Proposed Class Action and Defendants' Motion for Partial Summary Judgment on Plaintiffs' Breach of Contract Claims

 A. Background

 Plaintiffs have moved the court to certify a class of all employees of First American and Meritor Savings who were terminated by First Union (not for cause) and, between May 17, 1993 and June 30, 1994, posted for or expressed interest in internal priority placement at First Union, or who were deterred from doing so, and who are black or were 40 or older at the time. In addition to opposing certification of the class, defendants have filed a motion for summary judgment on the contract claims.

 In the Seventh Amended Complaint, *fn1" plaintiffs allege that First Union repeatedly promised employees that, if they were displaced, they would be given priority over other candidates for open positions at First Union for which they met the minimum requirements. Plaintiffs further allege that these promises were made to induce First American to sell Metro to First Union and to induce First American and Meritor employees not to seek outside employment despite the uncertainties created during the transition period. Plaintiffs aver that they interpreted the promise of priority consideration to mean that they would be considered for open positions before non-displaced and outside applicants and, if they met the minimum qualifications, would be hired without regard to the relative qualifications of any non-displaced or outside applicants. Finally, plaintiffs allege that First Union did not give them any priority consideration for open positions, but that First Union repeatedly sought to fill vacancies with external hires in disregard of the availability of qualified plaintiffs.

 In their papers opposing class certification and in favor of summary judgment, defendants concede that they did state that plaintiffs would receive priority consideration, but strongly disagree with plaintiffs' interpretation of these words. Furthermore, defendants argue that plaintiffs have failed to demonstrate that a contract existed between the parties, and thus defendants were under no legal obligations to plaintiffs.

 B. Procedural Analysis

 For several reasons, the court concludes that it is appropriate in this case to address the motion for summary judgment before considering the class certification issues. As a general rule, courts decide class certification motions before addressing dispositive motions. The language of Federal Rule 23 of Civil Procedure, which states that the court should determine if an action is to be maintained as a class as soon as practicable after its commencement, supports this general rule. F.R.C.P. 23 (c)(1). However, this same language is also read to give district court judges great discretion in determining the appropriate timing for such a ruling. Wright v. Schock, 742 F.2d 541, 543 (9th Cir. 1984). Weighing most heavily in favor of addressing the summary judgment motion first in this case is the reliance on merits arguments by both of the parties in the class action papers, despite the fact that courts are not to look at the merits of plaintiffs' claims when addressing the propriety of a class action. Wagner v. Taylor, 266 U.S. App. D.C. 414, 836 F.2d 578, 587 (D.C. Cir. 1987). In their opposition to class certification, defendants state that "if the breach of contract claim is patently and obviously without merit, this court must deny certification . . . ." Defs' Opp. at 50. In fact, defendants' discussion of Rule 23's requirements in their opposition is very limited. In their reply, plaintiffs state that "only if no reasonable jury could find that a contractual obligation was created should this Court deny class certification." Pls' Reply at 30. However, this proposed standard of review is not appropriate for use in an analysis of class actions, but of summary judgment motions.

 One of the recognized problems that arises when dispositive motions are addressed before class certification motions is that of one-way intervention. By allowing putative class members to wait while the merits of a claim are decided, these members are given the ability to watch the proceedings without any risk to their individual claims which would be precluded by an adverse ruling on the merits. Newton v. Southern Wood Piedmont Co., 163 F.R.D. 625, 629-30 (S.D.Ga 1995). For this reason, courts often look to see if defendants, the risk-bearers in this situation, have waived any right to have the certification motions decided first. Wright, 742 F.2d at 544, Newton, 163 F.R.D. at 630. The court concludes that defendants have implicitly waived this right. In fact, both parties cooperated with this court, without raising any objections or concerns, so that the summary judgment papers would be ripe at the same time the court would be considering the class certification issues. See Caraluzzi v. Prudential Securities, Inc., 824 F. Supp. 1206, 1210 (N.D.Ill. 1993)("It is relevant that neither party has objected to nor raised concerns about this court's consideration of defendant's motion to dismiss before deciding the issue of class certification."). Because neither party will suffer significant prejudice, and it is more practicable to do so, the court will address the merits of the summary judgment motion first. Wright, 742 F.2d at 543-44.

 Additionally, this court must determine the law to be applied to each plaintiff's breach of contract claim. To determine the applicable law, this court must follow the choice of law rules of the forum state. Rafferty v. NYNEX Corp., 314 U.S. App. D.C. 1, 60 F.3d 844, 849-50 (D.C. Cir. 1995). Applying the District of Columbia's choice of law rules, it is the job of this court to "evaluate the governmental policies underlying the applicable conflicting laws and . . . determine which jurisdiction's policy would be most advanced by having its law applied to the facts of the case under review." Id. quoting Williams v. Williams, 390 A.2d 4, 5-6 (D.C. 1978). Because the state in which the alleged contract was performed has the most interests in protecting the rights of the employees in its state, courts applying D.C. conflicts law have determined that the law of the state in which the alleged contract was breached will be applied. Choate v. TRW, Inc., 304 U.S. App. D.C. 312, 14 F.3d 74, 76 (D.C. Cir. 1994). Based upon this precedent, the law of the state in which the plaintiffs were employed by First Union should control. As a result, there are three ...

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