San Leandro Unified School District (District) filed a request for expedited due process hearing (complaint) with the Office of Administrative Hearings (OAH), State of California, on October 1, 2013, naming Student. On joint motion of the parties the matter was continued for good cause from November 26, 2013, until December 2, 2013, to allow time to file written closing arguments. Closing arguments were timely filed and the record was closed on December 2, 2013.
Administrative Law Judge (ALJ) Marian H. Tully heard this expedited matter in Oakland, California on November 21, 25, and 26, 2013.
Attorney Matthew J. Tamel represented District. Attorney Amy Levine attended the first day of the hearing and David Poeschl, District’s Director of Special Services, attended each day on behalf of District. Student was represented by his mother (Mother). Student and his father (Father) attended each day, and Student’s brother attended the last two days.
1. Is maintaining the current educational placement of Student at Monroe Elementary School substantially likely to result in injury to Student or to others?
2. If so, is the District’s proposed placement of Student at Roosevelt Elementary School, as offered in the September 27, 2013 individualized education program (IEP), an appropriate interim alternative educational setting (IAES), for not more than 45 days?
1. At the time of hearing, Student was eight-years-old and resided with Mother within District boundaries. Student was eligible for special education under the category of emotional disturbance due to difficulty with behavioral regulation and inability to maintain appropriate interpersonal relationships. Student’s current placement was a mild/moderate special day class (SDC) at Monroe Elementary School (Monroe).
2. Student transferred to District in February 2013 from Oakland Unified School District (Oakland). Jeanette McNeil was the principal of Monroe when Student transferred to her school from Oakland. Ms. McNeil reviewed Student’s records, and learned Student had behavior challenges while attending Oakland. Student came to Monroe with a history of aggressive behavior including assault, spitting, throwing objects towards peers and adults, causing physical harm to school staff, destruction of property, and profanity. Ms. McNeil felt that Student would require a one-to-one aide to assist him in class during his transition to Monroe.
3. District held the first IEP team meeting at Monroe on February 4, 2013, to discuss Student’s transition. The team reviewed Student’s initial, December 13, 2012, IEP from Oakland, other records from Oakland, and notes supplied by Mother describing Student’s school history, personality, and likes. The team discussed Student’s behaviors. District behaviorist Eva Maria Caraher explained the need for a Functional Analysis Assessment (FAA) and the process for completing that assessment. The team, with Mother and Father’s consent, agreed to conduct the FAA and to an interim placement in a regular classroom with at least one hour of behavior support daily, a shortened school day, and a one-to-one aide to help Student transition.
1 CPI is a method of physical restraint in which a qualified adult holds the child’s arms crossed in front of the child’s body by standing behind the child and crossing the adult’s arms over the child.
5. District held a thirty-day IEP team meeting on March 1, 2013. Safety concerns at that time included an incident where Student poked himself with a straightened paper clip, picked up chairs above his head in a threatening manner, attempted to stab a child in the back with a pencil, kicked and hit staff, and threw chairs. The episodes were violent and unpredictable. The IEP team, with Mother and Father’s consent, changed Student’s placement to a mild/moderate SDC in order to provide a small group setting, additional aide support, and to support positive behavior.
6. Trina McFarland was Student’s teacher. Ms. McFarland had worked with special education children for approximately 20 years. She held a mild/moderate special education K-12 clear credential, a clear K-12 art credential, a Master of Arts in special education, and she was certified in autism, diversity training, and CPI. She was familiar with Student’s school records and assessments, and was part of his IEP team. Student attended her class from March 2013 until the end of May of 2013, and then again in the fall semester. During that time, Student’s behaviors caused her to evacuate the classroom on multiple occasions. Ms. McFarland was concerned about the safety of her other students because small things triggered Student’s unpredictable violent behavior.
7. Ms. Caraher performed Student’s FAA. She produced a report on March 19, 2013. Ms. Caraher held a Master of Science in counseling, a pupil personnel services credential, and was a board certified behavior analyst. She was employed by District as a behavior specialist since August 2006. Before her employment with District she worked for four years as a behavior specialist and two years as a behavior intervention specialist with two other districts and as a behavior consultant for approximately six years. Ms. Caraher determined that the function of Student’s behaviors was to avoid situations he found stressful such as staying seated, doing school work, or playing games during recess when he felt he was not skilled or successful at the game. She recommended a positive behavior intervention plan.
8. On March 20, 2013, the IEP team met to discuss Student’s progress in the SDC, the results of the FAA, services, and placement. Ms. Caraher presented her report. The IEP was amended, with the consent of Mother and Father, to include two additional behavior goals and a behavior intervention plan based on the FAA results.
9. On May 14, 2013, Student attacked a classmate with a plastic knife-type tool used to sculpt clay. Student appeared angry and enraged. He was trembling and did not respond to verbal redirection. When he attempted to lunge at the child again, Ms. McFarland blocked Student and placed him in a CPI restraint. He stomped on her foot and attempted to kick her while he was restrained. The classroom was evacuated. On May 21, 2013, Student pushed a classmate and hit a girl in the face with a metal lunch pail. Student then ran off campus. The girl was crying and taken to the office to apply ice. On May 22, 2013, when asked to let others have a turn at the classroom computer, Student picked up the computer and attempted to throw it. When his aide held that computer so he could not throw it, he attempted to throw another computer. He attempted to throw chairs. He moved as if to punch a classmate. When the aide tried to block the punch, he hit her, twisted her fingers, and kicked her. The classroom was evacuated. The aide received medical attention for a sprained finger.
10. Alameda County Mental Health Services evaluated Student and produced a report dated May 17, 2013. According to the report, Student qualified for educationally related mental health services (ERMHS). The report concluded Student would benefit from a small, structured classroom setting, dedicated mental health support in the class, and individual, family, and group therapy to address the emotional issues underlying in his behavior.
11. On May 29, 2013, due to safety concerns for Student, staff, and children, the IEP team, with Mother’s consent, amended the March 1, 2013 IEP to place Student in a separate classroom with a teacher, an aide, and additional support by Ms. McFarland as needed until the end of the school year.
12. On June 7, 2013, Student was on a break with his aide when he got in an altercation with other children playing basketball. He kicked a ball into the street, causing three children and the aide to run to the street. Staff directed children in the school yard to return to their classrooms. Student threw a basketball at a child’s face and knocked the child down. He was suspended for two days.
13. Student began the 2013-14 school year on August 21, 2013, in Ms. McFarland’s SDC. Ms. McFarland’s class had 14 children in addition to Student. The class included children with autism, speech and language disabilities, and emotional disturbance.
14. On August 30, 2013, Student left his classroom, picked up a chair and acted as if he was going to throw it; he then picked up a metal trash can as if he was going to throw that. On September 3, 2013, Student was disruptive, called his peers “stupid,” behaved in a threatening manner, and would not respond to redirection. He ran at another child as if to stab him with a pencil. When an aide tried to stand between Student and the child, Student tried to run around the aide to get to the child. When the aide blocked Student, he threw a game at the aide and ran from the classroom as if he would run off campus. A CPI trained teacher blocked Student’s way. Student threatened to stab the teacher with four lead pencils and lunged at her. He was placed in a CPI restraint. In the restraint, Student bit both the teacher and Ms. McNeil. The teacher was bruised, and the bite on Ms. McNeil broke the skin and left a mark. On September 8, 2013, for safety reasons, Student was again placed in a separate classroom with a teacher, an aide, and his case manager.
15. The IEP team met on September 9, 2013, to discuss Student’s placement. The team discussed changing Student’s placement from Ms. McFarland’s SDC at Monroe to a counseling enriched (CE) program at Roosevelt Elementary School (Roosevelt). Roosevelt Principal Victoria Forrester attended the meeting and described the CE program at Roosevelt. She talked about the counseling component of the program and described the counseling enriched class. Students in the CE program are at or near grade level. The students are almost immediately mainstreamed into general education to the extent to which they are able, are integrated into the school, and attend all school activities. In her experience, students normally and quickly integrate into the classroom. Student’s March 1, 2013, IEP was amended, with Mother and Father’s consent, to District funded independent educational evaluation of speech and language and psychological needs, changed Student’s placement from the SDC to the separate classroom setting at Monroe with a teacher and an aide. Mother and Father agreed to visit the CE program at Roosevelt. Although Mother consented to the separate classroom placement, she informed District that she wanted Student to go to recess, lunch, music, and physical education. Mother and Father toured Roosevelt with Ms. Forrester a few days later.
16. Ms. Forrester was employed by District as the Principal at Roosevelt from 2007 through the dates of the hearing. Ms. Forrester held a Bachelor of Arts in psychology, a Master of Arts in educational leadership, an administrative services credential, a California multiple subjects clear credential, and she was trained in CPI. She had 27 years of professional experience, including 22 years teaching, and an extensive background working with at risk students and their families. The CE program began during her first year as principal at Roosevelt. The program was for special education students with emotional disturbance needs. All of the students in the program had IEP’s and behavior support plans. The program implemented the student’s IEP and behavior support and an additional highly individualized program of sub-goals developed by the CE staff. The purpose of the program was to get the student the help they needed in order to integrate into a general education class. The program did this by providing full-time counseling service, highly trained staff, small class size, and a secure environment. All students received individual and group counseling from a licensed marriage and family therapist to help them regulate their emotions and behaviors. The therapist also worked with students’ families. The therapist’s office was near the CE classroom. He was able to quickly respond to emergencies. The focus of the program was on the student’s behaviors at the outset. As the student was better able to regulate behavior, anxiety became reduced and students were generally better able to make progress in academics. As they were able, students were mainstreamed in increments, increasing the number of minutes in grade level general education classes. Ms. Forrester demonstrated an understanding of Student’s behavioral and academic needs. In her opinion, the CE program was highly successful, and an appropriate placement for Student.
17. On September 23, 2013, Student knocked a cupcake out of his brother’s hands. Student told his aide that it was an accident. When the aide told Student she did not believe him, Student became angry and kicked an uninvolved child hard in her stomach.
18. The IEP team met again on September 27, 2013, to discuss Student’s recent behaviors and a change in placement. District offered Student placement in the CE program at Roosevelt with mainstreaming for non-academic and academic activities as Student’s behavior allowed, 50 minutes individual counseling weekly, two 50 minute group counseling sessions a week and two 50 minute sessions of parent counseling monthly. Father consented to the offer. Mother did not. Student continued in the separate individual classroom at Monroe with three adults through the time of the hearing.
19. On September 30, 2013, Student was playing with other children. Student got angry and threw a basketball at another child, hitting her hard on the side of the head. On October 2, 2013, he punched a child and walked off campus. Ms. McNeil followed him. He returned to campus after she told him she would restrain him or call the police if he did not return to campus. On October 8, 2013, Student banged a cart into a closet door in his classroom, pushed a chair at the teacher, and picked up a trash can in a threatening manner. He cursed and raised his fist toward staff. He went to the bathroom. When he came out, he swung his fist at the teacher and walked off campus toward the street. Staff blocked his exit. Ms. McNeil and another teacher were called to assist. He walked back toward school raising his middle finger, cursing, and raising his fist at staff. He then ran through the halls and into the parking lot. On October 11, 2013, he got in a disagreement with children on the playground and, when adults tried to intervene, he walked off campus and down the street.
20. From August 21, 2013 through October 23, 2013, Student was suspended for nine days, eight of those suspensions occurred while Student was maintained in the separate classroom under the supervision of three adults. On October 23, 2013, District held a manifestation determination review. District determined that Student’s behaviors were a manifestation of his disability. Ms. Caraher prepared, and District provided, a positive behavior intervention plan to further address Student’s behaviors.
21. On November 8, 2013, Student was playing tetherball with other children during recess. A disagreement arose as to whether Student was “out” and had to go to the end of the line. Student “bumped into” the smallest girl in the line, grabbed the ball, and then pushed and hit the child who told him he was out. On November 19, 2013, Student hit his brother, and hit and kicked a teacher.
22. On November 21, 2013, Student bit Ms. Caraher, drawing blood and creating a mark. Later that day, at hearing, Ms. Caraher was in pain.
23. By the time of hearing, Ms. Caraher had been working full-time with Student in his separate classroom for four weeks. She and the other two adults attempted to implement Student’s IEP and provide curriculum “as much as they can.” Student was mainstreamed at lunch and recess “on a good day.” He refused to go to physical education. Student’s frustration tolerance was minimal. His behaviors had increased in severity and frequency. Ms. Caraher was afraid for Student’s safety when he eloped because she knew how fast he could get off campus. Ms. Caraher did not believe Student’s behavior plan in his current placement was sufficient because Student’s emotions were unpredictable and a behavior plan did not address emotional needs. She believed Student needed counseling or talk therapy, which was not available at Monroe, to address emotions and other factors. Ms. Caraher was familiar with the CE program at Roosevelt. In her opinion, it was a proven successful counseling enriched program, run by highly trained staff, and designed to move students into regular classes as each was able. Roosevelt could implement Student’s IEP and BSP, and Student would better learn skills in class with other students than in his current isolated setting.
24. Principal McNeil was an experienced administrator and teacher. Ms. McNeil held a multi-subject clear credential, an administrative credential, a Master of Arts in educational leadership, a teaching credential, and a certificate in CPI. Ms. McNeil was familiar with Student’s progress at Monroe. Teachers and staff working with Student reported behavior and disciplinary incidents to her, Student was brought to her office during or after these incidents, and she assisted staff with Student as necessary. She attended Student’s IEP team meetings. She was familiar with the CE program at Roosevelt. She had visited the site, talked to Roosevelt’s principal, and understood the therapeutic program. She believed that Roosevelt could provide better support for Student, and implement his IEP so that Student could participate in the general curriculum and make progress on his goals.
25. Mr. Poeschl was employed by District as Director of Special Services for two and one half years. He was responsible to oversee 170 staff and 1,200 special education students at 13 school sites . Mr. Poeschl was an experienced administrator, teacher, and lecturer. His teaching experience included five years teaching children with extreme behaviors. As a lecturer, he taught special education to general education teachers, including how to write IEP’s and implement BSP’s. Mr. Poeschl held Masters of Arts in special education and education leadership. He held a lifetime mild/moderate teaching credential and a lifetime administrative credential.
26. Mr. Poeschl became aware of Student’s behaviors when Student transferred into District. He became directly involved with Student in May 2013 when Student was first restrained in the classroom. He attended the September 9, 2013 and September 27, 2013, IEP team meetings. Mr. Poeschl understood Student’s behaviors were extreme and increasing in intensity and frequency. He was concerned Student, or someone else, was going to get hurt and he was worried about the access to the street. He was aware of the injuries to the children and staff. He believed this was likely to continue because the current setting did not reduce Student’s aggression, but there was nothing else District could do to reduce the likelihood of injury to Student or others in the current placement. Mr. Poeschl was familiar with the CE program at Roosevelt. In his opinion, the program would enable Student to participate in a general education curriculum and to make progress in the goals of his IEP, permit the completion of assessments, and address Student’s emotional issues as well as his behaviors. Roosevelt was three or four miles from Monroe and District would provide transportation. In Mr. Poeschl’s opinion, the isolated classroom at Monroe was not appropriate because Student had little or no interaction with peers, no counseling, and Student’s aggression was escalating.
27. Mother believed Monroe did not provide adequate services for Student and that his behavior support was not effective. She felt that the students at Monroe harassed and bullied her son, and that the school psychologist made inappropriate comments about him. She was very concerned that the independent evaluations agreed upon were not being completed in a timely manner. Mother refused to support Student’s placement at Roosevelt, not because she felt it was inappropriate but because she wanted the evaluation completed first in order to make an appropriate placement decision. In her view, Student had anxiety about meeting new people, he did not trust adults, and he needed to feel safe. Mother was concerned about moving Student from Monroe to Roosevelt, if it was only going to be a temporary placement.
1. District contends Student’s current placement at Monroe is substantially likely to result in injury to Student or others. District seeks an order to that effect, and an order that the CE program at Roosevelt and related services offered in Student’s September 27, 2013 IEP is an appropriate IAES for not more than 45 days. Student agrees Monroe is not an appropriate placement for Student. Student disagrees with any change in placement until after the agreed upon IEE was completed. For the reasons set forth below, the evidence showed that Student’s current placement is substantially likely to result in injury to Student or to others and that the CE program at Roosevelt is an appropriate IAES for not more than 45 days.
4. A school district may request a due process hearing to authorize a change of placement if the District “believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others….” (20 U.S.C. § 1415(k)(3)(A); 34 C.F.R. § 300.532(a).) Conduct that has been found substantially likely to result in injury includes hitting, kicking, shoving, biting, climbing on classroom furniture and cabinets, shouting obscenities, throwing objects at people, running out of the classroom, and banging on the doors of other classrooms. (Long Beach Unified School Dist. v. Student (2008) OAH case number 2008030017.) Other behaviors that have been found substantially likely to result in injury include: hitting an adult in the back, lunging at the teacher and trying to punch and hit her, yelling and threatening people (Fort Bragg Unified School Dist. v. Parent on Behalf of Student (2008) OAH case number 2008100507); throwing desks, knocking over a computer, yelling and screaming, hitting, kicking, punching, and biting adults (Fullerton Joint Union High School Dist. v. Student (2007) OAH case number 2007040584); and throwing objects, kicking other children, punching and kicking school staff, eloping from school and running into the street, knocking over another child, screaming, and destroying property (Lancaster Elementary School Dist. v. Student (2006) OAH case number 2006030771).
2 References to the Code of Federal Regulations (C.F.R.) are to the 2006 regulations.
6. Student’s current placement at Monroe has caused and is substantially likely to continue to cause injury to Student or to others. Student’s physical aggression resulted in injuries to children and District personnel, and was substantially likely to continue given Student’s history. Student’s physical aggression and eloping behavior put Student at risk of injury in the classroom, on the playground, in the school parking lot and on the street. These behaviors persisted even after Student was placed in an isolated separate classroom with three skilled adults. Even in this highly restrictive environment, Student’s anger and violent emotions were unpredictable and his aggressive behavior did not respond to redirection or physical restraint. From the time Student transferred from Oakland to District through the IEP offered on September 27, 2013, and the MDR review on October 23, 2013, District reviewed and revised the behavior goals in Student’s IEP, conducted an FAA, provided a positive behavior intervention plan, created a behavior support plan, added highly skilled and trained staff to provide fulltime individual support for Student in the classroom and on the playground, and placed Student in a separate isolated classroom. None of this helped Student’s emotional issues or reduced his aggressive or eloping behaviors. Accordingly, District demonstrated by a preponderance of the evidence that Student was substantially likely to injure himself or others in his placement at Monroe.
7. The evidence also demonstrated that the CE program at Roosevelt is an appropriate IAES for not more than 45 days. The staff was well trained and experienced. The student to staff ratio was low. The program provided an appropriate level of therapeutic counseling, could implement Student’s IEP and BSP, and would provide access to the general education environment. A full-time therapist worked with students individually, in groups, and with their families. The therapist’s office was close to the CE classroom and he could quickly respond to a crisis or emergency. A 45-day interim placement in the CE program at Roosevelt would enable Student to participate in grade level, or near grade level curriculum, with appropriate individualized behavioral intervention services, modifications and supports to address Student’s needs. Mother preferred Student remain in his current placement until evaluations were completed and an IEP could be held to determine an appropriate more long-term placement, but she did not contest the merits of the program. Mother’s concern for the possible anxiety a potential change in placement after the 45-day interim placement might cause Student does not outweigh the substantial likelihood that Student’s continued placement at Monroe would cause injury to Student or others. Accordingly, District demonstrated by a preponderance of the evidence that placement in the CE program at Roosevelt was an appropriate IAES for not more than 45 days.
If Student attends a program within District, District may change Student’s placement to the CE program at Roosevelt without parental consent for a period not to exceed 45 school days.
Pursuant to Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. Here, District was the prevailing party on all issues presented.


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[175 U.S. 323, 324] This was an action against a railroad corporation by a brakeman in its employ to recover damages for a personal injury caused by the negligence of the conductor of one of its trains.
'On the 15th day of December, 1894, a freight train of the defendant company, drawn by a steam locomotive, and carrying an engineer, a fireman, three brakemen, and a conductor, set out from Worcester, in the commonwealth of Massachusetts, for the city of Providence, in the state of Rhode Island. The train, which consisted of the locomotive and tender, thirteen or fourteen freight cars, and a caboose car, was heavily loaded with freight. The train left Worcester at about 7.15 P. M. and proceeded on its way without accident, until when, at a point on the railroad in the state of Rhode Island, away from telegraphic communication and not at a station, and distant from Providence about 16 miles, the engineer discovered by the motion and behavior of the locomotive that the train had broken apart. He immediately gave signals with the whistle to indicate to the trainmen upon the rear portion of the train that it was broken off, and continued to repeat those signals, which consisted of three rapid blasts of the whistle with very brief intervals between the different threes, while the locomotive and the one car which remained connected ran 3/4 of a mile. The locomotive with the connected car ran about 2 3/4 miles when the engineer, not being able to see anything of the separated part of the train, and supposing that his signals had been heard and its advance stopped, slowed up the engine preparatory to sending the fireman back [175 U.S. 323, 325] with the lantern and to take steps for restoring the connection of the parts of the train. Before speed had been so reduced that the fireman could alight from the train, the rear portion was discovered close at hand and approaching at great speed. The fireman gave notice of this fact and a signal for the locomotive to go ahead, but before it could gain speed to get away a collision between the two parts of the train took place, and one Gregory, a brakeman, who was on the top of the car still attached to the engine, was thrown from the car by the shock and instantly killed.
'The three brakemen on the train were a head, a middle, and a rear brakeman. Gregory was the head brakeman, and at once, on discovery of the separation of the train, went to the top of the only car left with the engine. The conductor and the middle and rear brakemen had been riding in the caboose car at the rear end of the train, and did not hear the warning signals which the engineer gave with the whistle, nor know that the train had broken until the collision, but remained all the time in the caboose. The night was cold and clear. The accident was near midnight.
Mr. Frank A. Farnham for plaintiff in error.
Mr. James E. Cotter for defendant in error.
It may be doubted whether the questions of law presented to us are really raised by the facts as certified. No facts are stated from which the jury might have found that, at the [175 U.S. 323, 327] time and place of the accident, there was any special reason why the brakemen should have been ordered by the conductor to take their places at the brakes, and therefore it is by no means evident that there was any dereliction of duty on the part of the conductor.
Nor is it clear that the negligence of the conductor, if negligence it was, in permitting the brakemen to ride in the caboose, was the proximate cause of Gregory's injuries. When the train parted the engineer had charge and control of the locomotive and attached cars, and it would seem to have been his duty, as it was within his power, to have prevented the subsequent collision of the detached parts. And, in that event, the case would be ruled by Baltimore & O. R. Co. v. Baugh, 149 U.S. 368 , 37 L. ed. 772, 13 Sup. Ct. Rep. 914, where it was held that the engineer and fireman of a locomotive engine, running alone on a railroad and without any rain attached, are fellow servants, so as to preclude the latter from recovering from the company for injuries caused by the negligence of the former.
However, waiving these suggestions, and proceeding on the assumptions of the courts below that it was the duty of the conductor, at the time and place of the accident, to have the brakemen on the top of the cars where they could apply the hand brakes, and that his failure to do so was the proximate cause of the injury to the plaintiff's intestate resulting from the subsequent collision of the detached portions of the train, we meet the question, Would, in such a state of facts, the company be liable to the injured brakeman for the negligence of the conductor?
There is a general rule of law, established by a great preponderance of judicial authority in the English and in the state and Federal courts, that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of the employment. But there have been conflicting views expressed in the application of this rule in cases where the employer is a railroad company, or other large organization, employing a number of servants engaged in distinct and separate departments of service; and our present inquiry is whether the relation between [175 U.S. 323, 328] the conductor and the brakeman of a freight train is that of fellow servants, within the rule, or whether the conductor is to be deemed a vice principal, representing the railroad company in such a sense that his negligence is that of the company, the common employer.
Unless we are constrained to accept and follow the decision of this court in the case of Chicago, M. & St. P. R. Co. v. ross, 112 U.S. 377 , 28 L. ed. 787, 5 Sup. Ct. Rep. 184, we have no hesitation in holding, both upon principle and authority, that the employer is not liable for an injury to one employee occasioned by the negligence of another engaged in the same general undertaking; that it is not necessary that the servants should be engaged in the same operation or particular work; that it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end; and that, accordingly, in the present case, upon the facts stated, the conductor and the injured brakenan are to be considered fellow servants within the rule.
'In applying these principles to the present case, it appears that the plaintiff was employed by the defendants as an engineer, at the rate of wages usually paid in that employment, being a higher rate than the plaintiff had before received as a machinist. It was a voluntary undertaking on his part, with a full knowledge of the risks incident to the employment, and the loss was sustained by means of an ordinary casualty, caused by the negligence of another servant of the company. Under these circumstances, the loss must be deemed to be the result of a pure accident, like those to which all men, in all employments, and at all times, are more or less exposed; and, like similar losses from accidental causes, it must rest where it first fell, unless the plaintiff has a remedy against the person actually in default, of which we give no opinion.
'It was strongly pressed in the argument that, although this might be so, where two or more servants are employed in the same department of duty, where each can exert some influence over the conduct of the other, and thus to some extent provide for his own security, yet that it could not apply where two or more are employed in different departments of duty, at a distance from each other, and where one can in no degree control or influence the conduct of another. But we think this is founded upon a supposed distinction, on which it would be extramely difficult to establish a practical rule. When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, How [175 U.S. 323, 330] near or how distant must they be to be in the same or different departments? In a blacksmith's shop persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a ropewalk, several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight and voice, and yet acting together.
'The master is not, and cannot be, liable to his servants unless there be negligence on the part of the master in that in which he, the master, has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business.' 'But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do. And if the persons so selected are guilty of negligence this is not the negligence of the master.' Lord Colonsay said: 'I think that there are duties incumbent on masters with reference to the safety of laborers in mines and factories, on the fulfilment of which the laborers are entitled to rely, and for the failure in which the master may be responsible. A total neglect to provide any system of ventilation for the mine may be of that character. Culpable negligence in supervision, if the master takes the supervision on himself; or, where he devolves it on others, the heedless selection of unskilful or incompetent persons for the duty; or the failure to provide or supply the means of providing proper machinery or materials,-may furnish grounds of liability.' [175 U.S. 323, 332] And see, likewise, the case of Clifford v. Old Colony R. Co. 141 Mass. 564, 6 N. E. 751, in which it was held that a section hand in the employ of a railroad corporation cannot maintain an action against the corporation for personal injuries caused by a collision between a hand car on which he was at work and an engine of a train run by servants of the corporation if the accident was occasioned by the negligence of the section boss and the engineer of the train.
In Shearman v. Rochester & S. R. Co. 17 N. Y. 153, it was held by the New York court of appeals that a servant who sustains an injury from the negligence of a superior agent engaged in the same general business can maintain no action against their common employer, although he was subject to the control of such superior agent, and that, accordingly, a brakeman upon a railroad whose duty it is not to apply the brakes except when directed by the engineer or conductor cannot maintain an action against their common employer for an injury resulting from the culpable speed at which the engineer and conductor ran the train. And this appears to be the settled doctrine in the state of New York. Besel v. New York C. & H . R. R. Co. 70 N. Y. 173; De Forest v. Jewett, 88 N. Y. 264.
The supreme court of Pennsylvania has held, in numerous cases, and it is settled law in that state, that a fellow servant, within the meaning of the rule, is anyone serving the same mater, and under his control, whether equal, inferior, or superior to the injured person in his grade or standing, and the fact that the injured servant was under the control of the servant by whose negligence the injury was caused makes no difference. Weger v. Pennsylvania R. Co. 55 Pa. 460; Lehigh Valley Coal Co. v. Jones, 86 Pa. 432.
In Columbus & I. C. R. Co. v. Arnold, 31 Ind. 174, 99 Am. Dec. 615, the supreme court of Indiana held, reversing some previous cases to the contrary, that it is the duty of a railroad company to use all reasonable care in the proper construction of its road, and in supplying it with the necessary equipment, and in the selection of competent subordinates to supervise, inspect, repair, and regulate the machinery, and to regulate and control the operation of the road; and that if [175 U.S. 323, 333] these duties are performed with care by the company, and one of the persons so employed is guilty of negligence by which an injury occurs to another, it is not the negligence of the master, and the company is not responsible.
Without following further the history of this subject in the courts of the several states, we may state that, generally, the doctrine there upheld is that of the cases herein previously cited, except in the courts of the states of Ohio, Kentucky, and perhaps others, in which the rule seems to obtain that while the master is not liable to his servant for any injury committed by a servant of equal degree in the same sphere of employment, unless some negligence is fixed on the master personally, yet that he is liable for the gross negligence of a servant superior in rank to the person injured, and is also liable for the ordinary negligence of a servant not engaged in the same department of service.
Leaving the decisions of the state courts, and coming to those of this court, we find the latter to be in substantial harmony with the current of authority in the state and English courts. From this statement the case of Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377 , 28 L. ed. 787, 5 Sup. Ct. Rep. 184, must, perhaps, be excepted, and to it we shall revert after an examination of our other cases.
It was held, by a majority of the court, that these provisions [175 U.S. 323, 335] of the Dakota Code expressed the general law that an employer is responsible for injury to his employees caused by his own want of ordinary care; that his selection of defective machinery, which is to be moved by steam power, is of itself evidence of a want of ordinary care, and allowing it to remain out of repair, when its condition is brought to his notice, or by proper inspection might be known, is culpable negligence; that the cars, in that case, had been defective for years; that the brakes were all worn out, and their condition had been called to the attention of the yard master, who had control of them while in the yard, and might have been ascertained, upon proper inspection, by the officer or agent of the company charged with the duty of keeping them in repair, yet nothing was done to repair either brakes or cars; that, in such circumstances, the company had not exercised ordinary care to keep the cars and brakes in good condition; and that, therefore, under the provisions of the statute, the company was bound to indemnify the plaintiff. The minority of the court considered that the case was governed by the local statute, and that the statute, properly construed, relieved the employer, under the facts of the case, from liability to the injured employee. They declined to express any opinion upon the question of liability apart from the statute.
We shall have occasion to revert to this case when we come to consider the decision in Chicago, M. & St. P. R. Co. v. Ross.
In Central R. Co. v. Keegan, 160 U.S. 259 , 40 L. ed. 418, 16 Sup. Ct. Rep. 269, Baltimore & O. R. Co. v. Baugh, 149 U.S. 368 , 37 L. ed. 772, 13 Sup. Ct. Rep. 914, was approved and followed in respect to its statement as to what constitutes a vice principal.
'The general rule is, that those entering into the service of a common master become thereby engaged in a common service and are fellow servants, and, prima facie, the common master is not liable for the negligence of one of his servants which has resulted in an injury to a fellow servant. There are, however, some duties which a master owes, as such, to a servant entering his employment. He owes the duty to provide such servant with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged. He also owes the duty of providing reasonably safe tools, appliances, and machinery for the accomplishment of the work necessary to be done. He must exercise proper diligence in the employment of reasona- [175 U.S. 323, 339] bly safe and competent men to perform their respective duties, and it has been held in many states that the master owes the further duty of adopting and promulgating safe and proper rules for the conduct of his business, including the government of the machinery and the running of trains on a railroad track. If the master be neglectful in any of these matters it is a neglect of a duty which he personally owes to his employees and if the employee suffer damage on account thereof, the master is liable. If, instead of personally performing these obligations, the master engages another to do them for him, he is liable for the neglect of that other, which, in such case, is not the neglect of a fellow servant, no matter what his position as to other matters, but is the neglect of the master to do those things which it is the duty of the master to perform as such . . . . The rule is that, in order to form an exception to the general law of nonliability, the person whose neglect caused the injury must be 'one who was clothed with the control and management of a distinct department, and not a mere separate piece of work in one of the branches of service in a department.' This distinction is a plain one, and not subject to any great embarrassment in determining the fact in any particular case.
The last case we shall refer to is that of Oakes v. Mase, 165 U.S. 363 , 41 L. ed. 746, 17 Sup. Ct. Rep. 345, where it was declared to be the settled law of this court that the relation of fellow servants exists between an engineer, operating a locomotive on one train, and the conductor on another train on the same road; and Northern P. R. Co. v. Poirier, 167 U.S. 48 , 42 L. ed. 72, 17 Sup. Ct. Rep. 741, where it was held that a brakeman on a regular train of a railroad and the conductor of a wild train, on the same road, are fellow servants, and the railroad company is not responsible for injuries happening to the former by reason of a collision of the two trains, caused by the negligence of the latter and by his disregard of the rules of the company.
Without attempting to educe from these cases a rule applicable to all possible circumstances, we think that we are warranted by them in holding in the present case that, in the absence of evidence of special and unusual powers having been conferred upon the conductor of the freight train, he, the engineer, and the brakemen, must be deemed to have been fellow servants within the meaning of the rule which exempts the railroad company, their common employer, from liability to one of them for injuries caused by the negligence of another.
This conclusion is certainly sound unless we are constrained to hold otherwise by the decision in Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377 , 28 L. ed. 787, 5 Sup. Ct. Rep. 184, already referred to. That was a case wherein an action was maintained, brought by a locomo- [175 U.S. 323, 341] tive engineer to recover damages received in a collision caused by the negligence of the conductor of the train; and it must be admitted that the reasoning employed by Mr. Justice Field, in his opinion expressing the views of a majority of the court, and the conclusion reached by him, cannot be reconciled with the other decisions of this court hereinbefore cited. We do not think that it would be proper to pass by the case without comment, nor yet to attempt to distinguish it by considerations so narrow as to leave the courts below in uncertainty as to the doctrine of this court on a subject so important and of such frequent recurrence. The case in hand exemplifies the perplexity caused by the Ross Case. The trial court gave effect to it as establishing the proposition that the conductor of an ordinary freight train, with no other powers than those assumed to belong to such an employee by virtue of such a position, is a vice principal, against whose negligence the company is bound to indemnify all the other employees on the train. Yet it is evident that the judges of the circuit court of appeals did not find themselves able to either accept or reject such a proposition, as they have certified it to us as one on which they desire our instructions. Such a course plainly evinces doubts whether, in view of the decisions both before and since, the case of Chicago, M. & St. P. R. Co. v. Ross, furnishes a safe and approved rule to guide the trial courts.
We think these statements attribute duties and powers to conductors of freight trains much greater than ordinarily exist. Several of the instances of control assigned to the conductor really belong to the engineer, who, as railroads are now operated, is a much more important functionary in the actual movements of the train, when in motion, than the conductor. It is his hand that regulates the application of the brakes that control the speed of the train, and in doing so he acts upon his own knowledge and observation, and not upon orders of the conductor. Particularly has this become the case since the introduction of the air train-brake system. We can take notice of the act of March 2, 1893 (27 Stat. at L. 531), which enacted 'that it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power- driving wheel brake and appliances for operating the trainbrake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train-brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand-brake for that purpose.' We do not refer to this statute as directly applicable to the case in hand, but as a legislative recognition of the dominant position of the engineer.
Cases are cited in the opinion in the Ross Case in which it has been held by the supreme court of Ohio and by the court of appeals of Kentucky that railroad companies are responsible for negligence of conductors to other employees. [175 U.S. 323, 343] But those courts do not accept the ordinary rule exempting the master from liability to a servant for the negligent conduct of his fellows. At least, they do not apply such a rule to the extent that this and other courts have done. They hold that no service is common that does not admit a common participation, and no servants are fellow servants when one is placed in control over the other.
'But the danger from the negligence of one specially in charge of the particular work is as obvious and as great as that of those who are simply coworkers with him in it. Each is equally with the other an ordinary risk of the employment. If he is paid for the one, he is paid for the other; if he assumes the one, he assumes the other. Therefore, so far as the matter of the master's exemption from liability depends upon whether the negligence is one of the ordinary risks of the employment, and, thus assumed by the employee, it includes all coworkers to the same end, whether in control or not. But if the fact that the risk is or is not obvious does not control, what test or rule is there which determines? Rightfully this, there must be some personal wrong on the part of the master, some breach of positive duty on his part. If he discharges all that may be called positive duty, and is himself guilty of no neglect, it would seem as though he was absolved from all responsibility, and that the party who caused the injury should be himself alone responsible. It may be said that this is only passing from one difficulty to another, as it leaves still to be settled what is positive duty and what is personal neglect; and yet, if we analyze these matters a little, there will appear less diffi- [175 U.S. 323, 344] culty in the question. Obviously, a breach of positive duty is personal neglect; and the question in any given case is, therefore, what is the positive duty of the master? He certainly owes the duty of taking fair and reasonable precautions to surround his employee with fit and careful coworkers, and the employee has a right to rely upon his discharge of this duty. If the master is careless in the matter of employing a servant, it is his personal neglect; and if without proper case in inquiring as to his competency he does employ an incompetent person the fact that he has an incompetent, and therefore an improper, employee is a matter of his personal wrong, and owing to his personal neglect. And if the negligence of this incompetent servant works injury to a coservant, is it not obvious that the master's omission of duty enters directly and properly into the question of responsibility? If, on the other hand, the master has taken all reasonable precautions to inquire into the competency of one proposing to enter into his service, and as the result of such reasonable inquiry is satisfied that the employee is fit and competent, can it be said that the master has neglected anything, that he has omitted any personal duty; and this, notwithstanding that after the servant has been employed it shall be disclosed that he was incompetent and unfit? If he has done all that reasonable care requires to inquire into the competency of his servant, is any neglect imputable to him? No human inquiry, no possible precaution, is sufficient to absolutely determine in advance whether a party under certain exigencies will or will not do a negligent act. So it is not possible for the master, take whatsoever pains he may, to secure employees who will never be guilty of any negligence. Indeed, is there any man who does not sometimes do a negligent act? Neither is it possible for the master, with any ordinary and reasonable care, always to secure competent and fit servants. He may be mistaken, notwithstanding the reasonable precautions he has taken. Therefore, that a servant proves to be unfit and incompetent, or that in any given exigency he is guilty of a negligent act resulting in injury to a fellow servant, does not of itself prove any omission of care on the part of the master in his employment; and [175 U.S. 323, 345] it is only when there is such omission of care that the master can be said to be guilty of personal wrong in placing or continuing such servant in his employ, or has done or omitted aught justifying the placing upon him responsibility for such employee's negligence.
Accordingly, the conclusion reached was that, although the party injured was a fireman, who was subject to the orders and control of the engineer, in the absence of any conductor, there was no liability on the company for negligence of the ad interim conductor.
So, likewise, Mr. Chief Justice Fuller dissented in the Baugh Case for the express reason that, in his opinion, the case came within the rule laid down in Chicago, M. & St. P. R. Co. v. Ross.
To conclude, and not to subject ourselves to our own previous criticism, of proceeding upon assumptions not founded on [175 U.S. 323, 347] the evidence in the case, we shall content ourselves by saying that, upon the facts stated and certified to us by the judges of the circuit court of appeals, we cannot, as a matter of law, based upon those facts and upon such common knowledge as we, as a court, can be supposed to possess, hold a conductor of a freight train to be a vice principal within any safe definition of that relation.
Accordingly we answer the first question put to us in the affirmative, and the second question in the negative.
I concurred in the opinion and judgment of this court in Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377 , 28 L. ed. 787, 5 Sup. Ct. Rep. 184, and do not now perceive any sound reason why the principles announced in that case should not be sustained. In my judgment the conductor of railroad train is the representative of the company in respect of its management, all the other employees on the train are his subordinates in matters involved in such management, and for injury received by any one of those subordinates during the management of the train by reason of the negligence of the conductor the railroad company should be held responsible. As the conductor commands the movements of the train and has general control over the employees connected with its operation, the company represented by him ought to be held responsible for his negligence resulting in injury to other employees discharging their duties under his immediate orders. If in such case the conductor be not a vice principal, it is difficult to say who among the officers or agents of a corporation sued by one of its employees for personal injuries ought to be regarded as belonging to that class. Having these views, I am compelled to withhold my assent from the opinion and judgment in this case.

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BankAmerica Corp. (BAC), a bank holding company, applied to the Federal Reserve Board (Board) for approval under § 4(c)(8) of the Bank Holding Company Act of 1956 (BHC Act) to acquire a nonbanking affiliate corporation (Schwab) engaged in retail securities brokerage. Section 4(c)(8) authorizes bank holding companies, with prior Board approval, to acquire stock in other companies that are engaged in nonbanking activities that the Board determines are "so closely related to banking . . . as to be a proper incident thereto." Petitioner, a national trade association of securities brokers, opposed BAC's application and participated in the administrative hearings. The Board authorized BAC to acquire Schwab, holding that a securities business, such as Schwab, that is essentially confined to the purchase and sale of securities for the account of third parties, without providing investment advice to the purchaser or seller, is "closely related" to banking within the meaning of § 4(c)(8). The Board also concluded that the acquisition would not violate § 20 of the Glass-Steagall Act, which prohibits a bank (BAC's banking subsidiary here) from being affiliated with companies "engaged principally in the issue, flotation, underwriting, public sale, or distribution" of securities. On petitioner's application for judicial review, the Court of Appeals affirmed the Board's order.
Held: The Board has authority under § 4(c)(8) of the BHC Act to authorize a bank holding company to acquire a nonbanking affiliate engaged principally in retail securities brokerage. Pp. 468 U. S. 214-221.
generally provided by banks, and that banks are particularly well equipped to provide such services. Pp. 468 U. S. 214-216.
(b) The Board's determination that a bank holding company's acquisition of such a brokerage business as Schwab's is not prohibited by § 20 of the Glass-Steagall Act is reasonable, and supported by the statute's plain language and legislative history, and deserves the deference normally accorded the Board's construction of the banking laws. The term "public sale" in § 20 should be read to refer to the underwriting activity described by the terms that surround it, and to exclude the type of retail brokerage business in which Schwab principally was engaged. This reading of the statute is further supported by the Board's similar longstanding interpretation of identical language found in another provision of the Glass-Steagall Act. Moreover, the legislative history demonstrates that Congress enacted § 20 to prohibit the affiliation of commercial banks with entities that are engaged principally in activities such as underwriting. None of the hazards of underwriting is implicated by Schwab's brokerage activities. Pp. 468 U. S. 216-221.
This case presents the question whether the Federal Reserve Board has statutory authority under § 4(c)(8) of the Bank Holding Company Act of 1956, 12 U.S.C. § 1843(c)(8), to authorize a bank holding company to acquire a nonbanking affiliate engaged principally in retail securities brokerage.
BankAmerica Corp. (BAC) is a bank holding company within the meaning of the Bank Holding Company Act. [Footnote 1] In March, 1982, BAC applied to the Federal Reserve Board (Board) for approval under § 4(c)(8) of the Act to acquire 100 percent of the voting shares of The Charles Schwab Corp., a company that engages through its wholly owned subsidiary, Charles Schwab & Co. (Schwab), in retail discount brokerage. [Footnote 2] The Board ordered that formal public hearings be held before an Administrative Law Judge (ALJ) to consider the application. The Securities Industry Association (SIA), a national trade association of securities brokers, and petitioner here, opposed BAC's application and participated in those hearings. [Footnote 3] After six days of hearings, the ALJ recommended that BAC's application be approved. After reviewing the evidentiary record, the Board adopted, with modifications, the findings and conclusions of the ALJ and authorized BAC to acquire Schwab. 69 Fed.Res.Bull. 105 (1983). SIA petitioned the Court of Appeals for the Second Circuit for judicial review under 12 U.S.C. § 1848.
The Court of Appeals held that the Board had acted within its statutory authority in authorizing BAC's acquisition of Schwab under § 4(c)(8) of the BHC Act. The court accordingly affirmed the Board's order. 716 F.2d 92 (1983). We granted SIA's petition for certiorari, 465 U.S. 1004 (1984), and now affirm.
"bank trust department trading desks, at least at the largest banks, perform the same functions, utilize the same execution techniques, employ personnel with the same general training and expertise, and use the same facilities . . . that brokers do."
"essentially confined to the purchase and sale of securities for the account of third parties, and without the provision of investment advice to the purchaser or seller"
The Board next determined that the public benefits likely to result from BAC's acquisition of Schwab outweighed the possible adverse effects. Specifically, the Board identified as public benefits the increased competition and the increased convenience and efficiencies that the acquisition would bring to the retail brokerage business. Id. at 109-110. As to possible adverse effects, the Board determined that the proposed acquisition would not result in the undue concentration of resources, decreased competition, or unfair competitive prices. Id. at 110-114.
Finally, the Board concluded that BAC's acquisition of Schwab was not prohibited by the Glass-Steagall Act. [Footnote 10] Id. at 114-116. The Board observed that the proposed acquisition would make Schwab an affiliate of BAC's banking subsidiary, and thus subject to the provisions of the Glass-Steagall Act. It held, however, that Schwab was "not engaged principally in any of the activities prohibited to member bank affiliates by the Glass-Steagall Act," and thus concluded that the acquisition was "consistent with the letter and spirit of that act." Id. at 114.
"operationally and functionally very similar to the types of brokerage services that are generally provided by banks, and that banking organizations are particularly well equipped to provide such services."
such factors. Moreover, the Board's factual findings are substantially supported by the record.
"purchasing and selling . . . securities and stock without recourse, solely upon the order, and for the account of, customers, and in no case for [their] own account[s]."
greatest deference." Board of Governors of Federal Reserve System v. Investment Company Institute, 450 U. S. 46, 450 U. S. 56 (1981) (ICI). In this case, the Board has articulated with commendable thoroughness the ways in which banking activities are similar to the brokerage activities at issue here. The standard the Board used to determine that Schwab's brokerage business is "closely related" to banking is reasonable and supported by a normal reading of the statutory language of § 4(c)(8). The factual findings to which this standard was applied are substantially supported by the record. The Court of Appeals, therefore, properly deferred to the Board's determination in this case.
"[N]o member bank shall be affiliated in any manner described in subsection (b) of section 221a of this title with any corporation, association, business trust, or other similar organization engaged principally in the issue, flotation, underwriting, public sale, or distribution at wholesale or retail or through syndicate participation of stocks, bonds, debentures, notes, or other securities . . ."
(Emphasis added.) A bank holding company's subsidiaries are bank affiliates within the meaning of § 20. 12 U.S.C. § 221a(b). Section 20, therefore, prohibits BAC's proposed acquisition if Schwab is "engaged principally" in any of the activities listed therein.
"primarily engaged in the issue, flotation, underwriting, public sale, or distribution, at wholesale or retail, or through syndicate participation"
"[a] broker who is engaged solely in executing orders for the purchase and sale of securities on behalf of others in the open market is not engaged in the business referred to in section 32."
22 Fed.Res.Bull. 51, n. 1 (1936). Because §§ 32 and 20 contain identical language, were enacted for similar purposes, and are part of the same statute, the long-accepted interpretation of the term "public sale" to exclude brokerage services such as those offered by Schwab should apply as well to § 20. [Footnote 20] The Board's interpretation of the disputed term is supported by the plain language of the statute. It is also entirely consistent with legislative intent.
"devote themselves in many cases to perilous underwriting operations, stock speculation, and maintaining a market for the banks' own stock, often largely with the resources of the parent bank."
Schwab's profitability by having its bank affiliate extend credit to issuers of particular securities, nor by encouraging the bank affiliate improperly to favor particular securities in the management of depositors' assets. Finally, the fact that § 16 of the Glass-Steagall Act allows banks to engage directly in the kind of brokerage services at issue here, to accommodate its customers, suggests that the activity was not the sort that concerned Congress in its effort to secure the Nation's banks from the risks of the securities market.
"the business of purchasing or selling securities upon the unsolicited order of, and as agent for, a particular customer does not constitute the 'public sale' of securities for purposes of section 20."
69 Fed.Res.Bull. at 114. This interpretation of the Glass-Steagall Act is reasonable, consistent with the plain language of the statute and its legislative history, and deserves the deference normally accorded the Board's construction of the banking laws.
The Board determined in this case that a securities brokerage business that is essentially limited to the purchase and sale of securities for the account of customers, and without provision of investment advice to purchaser or seller, is "closely related" to banking. We hold that the Board's determination is consistent with the language and policies of the BHC Act. We also hold that the Board's determination that the Glass-Steagall Act permits bank holding companies to acquire firms engaged in such a brokerage business is reasonable, and supported by the plain language and legislative history of the Act. We therefore affirm the judgment of the Court of Appeals.
Schwab is known as a "discount" broker because of the low commissions it charges. Schwab can afford to charge lower commissions than full-service brokerage firms because it does not provide investment advice or analysis, but merely executes the purchase and sell orders placed by its customers .
"(8) shares of any company the activities of which the Board after due notice and opportunity for hearing has determined (by order or regulation) to be so closely related to banking or managing or controlling banks as to be a proper incident thereto. . . . In determining whether a particular activity is a proper incident to banking or managing or controlling banks the Board shall consider whether its performance by an affiliate of a holding company can reasonably be expected to produce benefits to the public, such as greater convenience, increased competition, or gains in efficiency, that outweigh possible adverse effects, such as undue concentration of resources, decreased or unfair competition, conflicts of interests, or unsound banking practices."
"1. Banks generally have in fact provided the proposed services."
"2. Banks generally provide services that are operationally or functionally so similar to the proposed services as to equip them particularly well to provide the proposed service."
"3. Banks generally provide services that are so integrally related to the proposed services as to require their provision in a specialized form."
"any . . . factor that an applicant may advance to demonstrate a reasonable or close connection or relationship of the activity to banking."
The Board conceded that banks, unlike retail brokers, use an intervening broker to execute orders for the purchase and sale of securities traded on an exchange. The Board found, however, that banks often execute purchase and sell orders for securities that are not traded on an exchange without an intervening broker. To this extent, they perform the same services as a retail broker. 69 Fed. Res. Bull., at 107.
"(15) providing securities brokerage services, related securities credit activities pursuant to the Board's Regulation T (12 CFR Part 220), and incidental activities such as offering custodial services, individual retirement accounts, and cash management services, provided that the securities brokerage services are restricted to buying and selling securities solely as agent for the account of customers and do not include securities underwriting or dealing or investment advice or research services."
48 Fed.Reg. 37006 (1983) (emphasis in original).
SIA argues that the legislative history of the 1970 amendment to § 4(c)(8) establishes that Congress expressly rejected a "functionally related" standard, and that the Board exceeded its statutory authority by relying on that standard here. This argument is without merit. In 1970, the initial versions of both the House and Senate bills changed the "closely related" test of § 4(c)(8) to a "functionally related" test. S.Rep. No. 91-1084, p. 25 (1970); H.R.Rep. No. 91-387, p. 1 (1969). The Conference Committee, however, retained the "closely related" language of the prior Act in the final version of the bill. H.R.Conf.Rep. No. 91-1747, p. 5 (1970). As we observed in Board of Governors of Federal Reserve System v. Investment Company Institute, 450 U. S. 46, 450 U. S. 73 (1981), the significance of this legislative history is unclear. It is, however, clear that the 1970 amendment broadened, rather than restricted, the Board's discretion to determine whether nonbanking activities are significantly related to banking. See id. at 450 U. S. 72-76. Thus, there is no indication that Congress intended to preclude consideration by the Board of the functional relationship of nonbanking activities to banking in determining whether those activities may qualify for the § 4(c)(8) exemption.
Moreover, it is not clear that the Board in this case applied the "functionally related" test arguably rejected by Congress in 1970. The Board found that Schwab's brokerage business was both "operationally and functionally very similar to" traditional banking services and that banks were well equipped to provide those services. 69 Fed.Res.Bull. at 107.
See n 9, supra. Schwab also provides some incidental services to its customers such as margin lending, custodial accounts, and appropriate account maintenance. The Board also approved these as "closely related" to banking when offered incident to the approved brokerage services. See 69 Fed.Res.Bull. at 108-109. SIA has not challenged the Board's conclusions with respect to these incidental services.
Those four sections are §§ 16, 20, 21, and 32, codified respectively at 12 U.S.C. §§ 2, 377, 378, and 78.
Such deference is appropriate where, as here, the Board expressly addressed the application of the Glass-Steagall Act to the proposed regulatory action and determined that the proposed action implicated none of the concerns that led to the enactment of that Act. See ICI, 450 U.S. at 450 U. S. 68. In Camp, on the other hand, we gave less deference to regulatory action that was taken without any "expressly articulated position at the administrative level as to the meaning and impact of the provisions of [the Glass-Steagall Act]." 401 U.S. at 401 U. S. 627. We held in Camp that agency action taken "without opinion or accompanying statement" was "hardly tantamount to an administrative interpretation" of the Glass-Steagall Act, and was not due the deference normally accorded such regulatory action. Id. at 401 U. S. 627-628.
In the typical distribution of securities, an underwriter purchases securities from an issuer, frequently in association with other underwriters. The distribution of these securities to the public may be effected by the underwriters alone, or in conjunction with a group of dealers who also purchase and sell the particular issue of securities as principals. Underwriters also may distribute securities under a "best efforts" agreement pursuant to which large blocks of specific issues of securities are offered to the public by the investment banker as agent for the issuer. A "best efforts" distribution is not technically an underwriting. 1 L. Loss, Securities Regulations 172 (2d ed.1961). Because Schwab's brokerage business involves none of these distribution plans, we need not consider whether a "best efforts" distribution is prohibited under § 20.
Most securities firms engage in all aspects of the securities business, acting at various times as underwriters, dealers, or brokers. As underwriter and dealer, the firm buys and sells securities on its own account, thereby assuming all risk of loss. As broker, the firm buys and sells securities as an agent for the account of customers. In these transactions, it is the customer, rather than the securities firm, who bears the risk of loss. Schwab is different from most securities firms in that it engages solely in the brokerage business, and does not participate in underwriting or dealing in securities.
"No officer, director, or employee of any corporation or unincorporated association, no partner or employee of any partnership, and no individual, primarily engaged in the issue, flotation, underwriting, public sale, or distribution, at wholesale or retail, or through syndicated participation, of stocks, bonds, or other similar securities, shall serve the same time as an officer, director, or employee of any member bank. . . ."
SIA argues that the phrase in § 16 that allows banks to engage in "purchasing and selling . . . securities and stock, without recourse, solely upon the order, and for the account of, customers" is essentially equivalent to the term in § 20 that prohibits the "public sale" of securities. This argument is unpersuasive. There is no basis for assuming that the dissimilar phrases found in §§ 16 and 20 are coterminous. The permissive phrase found in § 16 accurately describes securities brokerage, and clearly distinguishes that activity from the activities of "dealing in, underwriting and purchasing for its own account investment securities" that are prohibited elsewhere in that section. Section 20 also prohibits bank affiliates from engaging in these latter activities. The description of securities brokerage found in § 16, however, appears nowhere in § 20.
See Hearings pursuant to S. 71 before a Subcommittee of the Senate Committee on Banking and Currency, 71st Cong., 3d Sess., 1052-1068 (1931).
"The legislative history of the Glass-Steagall Act shows that Congress also had in mind and repeatedly focused on the more subtle hazards that arise when a commercial bank goes beyond the business of acting as fiduciary or managing agent and enters the investment banking business either directly or by establishing an affiliate to hold and sell particular investments."
401 U.S. at 401 U. S. 630.
See Camp, 401 U.S. at 401 U. S. 631-634 (identifying the "subtle hazards" of affiliation with underwriting firms). All these "subtle hazards" are attributable to the promotional pressures that arise from affiliation with entities that purchase and sell particular investments on their own account.


text:
Description: The Okinawa World War II Photographs collection consists of fourteen aerial photographs of the Okinawa capital, Naha, which portray effects of preliminary bombing by American aircraft during World War II.
From the Okinawa World War II Photographs. Photograph of a destroyed factory, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of a factory site near the Kokuba Channel, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of a destroyed government building, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of a destroyed bridge on the Naha Canal, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of a distant view of a destroyed bridge on the Naha Canal, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of a leveled bridge on the Naha Canal, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of a destroyed bridge on the Kokuba Channel, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of supply lines near the Kokuba Channel, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of a supply route, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of a destroyed supply road, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of supply routes near the Kokuba Channel, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.
From the Okinawa World War II Photographs. Photograph of a leveled supply route or supply station, presumed to have been taken during preliminary air raids on Okinawa during World War II. Photo was found by Sgt. Willie V. Oubre, 22nd Marine Brigade, 6th Marine Division.

matches: V. V. V. V. V. V. V. V. V. V. V. V.


FindACase | Preman v. Pollo Operations, Inc.
Preman v. Pollo Operations, Inc.
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
The matter before the Court is a proposed class action settlement under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). Doc. No. 57. Unless stated otherwise, the following facts are taken from Plaintiff's class action complaint (the “Complaint”). Doc. No. 1. Defendant operated Pollo Tropical, a Caribbean-themed restaurant chain with locations in Florida, Texas, Georgia, and Tennessee. Id. at ¶ 10. Defendant engaged in a marketing campaign which involved sending Pollo Tropical coupons via text message to consumers' cellular phones. Id. at ¶ 12. Defendant used an automatic telephone dialing system to send the coupons. Id. Defendant obtained consent from cellular phone subscribers (“Initial Owners”) before sending such coupons. Doc. No. 58-1 at 3. After an Initial Owner ended their cellular phone subscription, the Initial Owner's phone number was sometimes reassigned (“Recycled Numbers”) to a new owner. Id. Some of these new owners (“New Owners”) would receive text message coupons from Pollo Tropical. Id. Defendant did not obtain written consent from any of the New Owners to send text message coupons to them. Doc. No. 1 at ¶ 12.
Plaintiff, a New Owner, received fifteen to twenty text message coupons from Pollo Tropical between January 2015 and February 2016. Doc. No. 1 at ¶ 18. Plaintiff did not provide express consent to receive these text message coupons. Id. at ¶ 22. On March 17, 2016, Plaintiff, on behalf of the New Owners, filed the Complaint asserting two causes of action under TCPA. Id. at ¶¶ 35-46. Count I alleges negligent violation of TCPA, and Count II alleges knowing and/or willful violation of TCPA. Id.
On January 30, 2017, the parties filed a status report stating that they reached an agreement on a class-wide settlement following their mediation. Doc. No. 38. On November 15, 2017, Plaintiff filed an unopposed motion (the “Motion”) for preliminary approval of the parties' revised class action settlement agreement (the “Agreement”) and certification of the Settlement Class.Doc. No. 57. On April 10, 2018, the Motion was referred to the undersigned for a report and recommendation. In the Motion and attached memorandum of law (Doc. No. 58), Plaintiff requests a Court order: 1) scheduling a preliminary settlement approval hearing to determine whether the Agreement should be preliminarily approved and the Settlement Class be certified; 2) certifying, for settlement purposes, the Settlement Class pursuant to Federal Rule of Civil Procedure 23(a), (b)(3), and (e) and granting preliminary approval of the Agreement in accordance with an attached proposed order (the “Proposed Preliminary Order”); 3) approving the notice plan set forth in the Agreement and the form and content of the notice attached thereto (the “Proposed Notice”); 4) approving the Angeion Group as the Settlement Administrator and directing that the Proposed Notice be provided to the Settlement Class; 5) approving and ordering the opt-out and objection procedures set forth in the Agreement; 6) requiring objections, if any, to the Agreement to be submitted no later than forty-five days before the date set for the final settlement approval hearing; 7) appointing Plaintiff as Class Representative; 8) appointing John A. Yanchunis, Sr., and Jonathan B. Cohen as Class Counsel; 9) requiring any application by Class Counsel for attorneys' fees, costs, and expenses to be filed no later than ten business days prior to the final settlement approval hearing; and 10) scheduling a final settlement approval hearing to determine whether the proposed settlement, a motion seeking a service award to the Class Representative, and/or a motion for attorneys' fees, costs, and expenses to Class Counsel should be finally approved. Doc. No. 57 at 1-2; Doc. No. 58 at 26.
In support of the Motion, Plaintiff attaches: 1) the Agreement; 2) the Proposed Notice; 3) declarations from Plaintiff and Mr. Yanchunis; 4) biographies of Plaintiff's counsel detailing their experience in class action litigation; 5) a chart summarizing recent TCPA class action settlements; 6) declarations detailing the means used to identify the Recycled Numbers and the methods for contacting Settlement Class Members; 7) a list of the Recycled Numbers filed under seal; 8) the Proposed Preliminary Order; and 9) a proposed order of final judgment and dismissal with prejudice (the “Proposed Final Order”). Doc. Nos. 53, 58-1 - 58-12.
The parties to the Agreement are: 1) Plaintiff, on behalf of himself and the Settlement Class; 2) Defendant; and 3) non-party Heartland Commerce Inc. (“Heartland”). Heartland is a party to the Agreement because Defendant engaged Beanstalk Data LLC, Heartland's predecessor in interest, to coordinate the sending of text messages to Pollo Tropical customers. Doc. No. 58 at 3-4.
The Agreement states that it shall not be effective until the Effective Date, which is defined as the later of: 1) the date the Court enters Final Judgment substantially in the form of the Proposed Final Order (Doc. No. 58-2) or in another form agreed to by the parties; or 2) should a Settlement Class Member object to the Agreement, the date on which the period for filing an appeal related thereto has expired or the date on which the settlement and final judgment have been affirmed in all material respects by an appellate court of last resort. Doc. No. 58-1 at 12-13.
Upon the Court's entry of the Proposed Final Order, all Settlement Class Members, including Plaintiff, who do not opt out of the Settlement Class release Defendant and Heartland “from any and all claims … that have been, could have been, or in the future might be asserted that arise out of or relate to Defendant's or [Heartland's] transmission of text messages between March 1, 2012 and March 15, 2017.” Doc. No. 58-1 at 14. All Settlement Class Members who do not opt out of the Settlement Class are permanently enjoined from commencing any legal action regarding the above-referenced claims against Defendant, Heartland, or any other released party.Id. at 15-16.
Defendant and Heartland agreed to create a settlement fund of $975, 000.00 (the “Settlement Fund”) Doc. No. 58-1 at 9. Settlement Class Members who timely file a claim shall be paid a pro rata share of the Settlement Fund, up to $50.00 per phone number. Id. at 10. No. more than $50.00 per phone number will be given regardless of the number of text message coupons a Settlement Class Member received or the number of Settlement Class Members assigned to a single phone number. Id.
Plaintiff shall be paid $5, 000.00 from the Settlement Fund as a class representative service award. Doc. No. 58-1 at 12. The Agreement provides for a proposed attorneys' fee of twenty-five percent of the Settlement Fund, which amounts to $243, 750.00. Id. Class Counsel shall also be reimbursed for costs and expenses not exceeding $5, 000.00. Id. The proposed service award, attorneys' fees, and cost reimbursement are all subject to the Court's approval. Id. Finally, the fees and costs of the Angeion Group, the proposed Settlement Administrator, shall be paid out of the Settlement Fund. Id. at 7.
All persons who received text messages on behalf of Pollo Operations from March 1, 2012 to March 15, 2017 to telephone numbers that had been reassigned to them after the original or prior owners of the telephone numbers consented to receive such text messages from Pollo Operations, who did not consent to receive such text messages, and who can be identified through the reverse telephone number look-up process utilized by the Settlement Administrator (“Settlement Class”). Excluded from the Settlement Class are: (a) Defendant and its present and former officers, directors, employees, shareholders, insurers, and their successors, heirs, assigns, and legal representatives; and (b) the Court and members of the Court's staff.
Doc. No. 58-1 at 6. Thus, the Settlement Class includes all New Owners who: 1) from March 1, 2012 to March 15, 2017, had a Recycled Number that received a text message coupon from Pollo Tropical; 2) did not consent to receive such messages; and 3) could be identified through a reverse telephone number look-up process utilized by the Angeion Group. Id. Excluded from the Settlement Class are: 1) Defendant and its present and former officers, directors, employees, shareholders, insurers, and their successors, heirs, assigns, and legal representatives; and 2) the Court and members of the Court's staff. Id. The Agreement also states that each New Owner included in the Settlement Class is a Settlement Class Member. Id.
The Recycled Numbers that will be provided to the Settlement Administrator, and that have been currently filed with the Court, represent the best and preferred method of identifying the Settlement Class Members after carefully considering alternatives and appropriate expert input. The Recycled Numbers were identified from business records in [Heartland's] possession. Specifically, [Heartland], using its proprietary software, ran a search on its internal system for: (i) each cellular telephone number that received a text message during the class period; and (ii) for which a subsequent text message was sent and a response stating that the number was an “Invalid, Blocked, or Deactivated” number was received by [Heartland]; and (iii) after receiving this notification, a subsequent text message was sent by [Heartland] and ultimately delivered to the cellular phone number. The search generated more than 40, 000 cellular phone numbers that fit this criteria.
Doc. No. 58-1 at 7-8. Thus, the parties identified the Recycled Numbers of the New Owners making up the Settlement Class by: 1) collecting each telephone number in Heartland's internal system that received a text from March 1, 2012 through March 15, 2017; 2) finding which of those numbers responded to a subsequent text message with a response stating that the phone number was invalid, blocked, or deactivated (which implies that an Initial Owner cancelled their subscription); and 3) finding which of the previously-stated numbers later received a text message (which implies that an Initial Owner's cellular phone number was reassigned to a New Owner). Id. Plaintiff attaches declarations from two consultants with litigation technology experience stating that such method is the best method available to determine the Recycled Numbers of the Settlement Class Members. Doc. Nos. 58-11, 58-12.
Upon the parties' approval, the Angeion Group will use a reverse telephone number look- up process to correspond the list of Recycled Numbers to the addresses of each Settlement Class Member and send the Proposed Notice to those addresses. Doc. No. 58-1 at 9-10. The Agreement permits the Angeion Group to engage in reasonable additional due diligence to identify Settlement Class Members if the reverse telephone number look-up process is unsuccessful. Id. at 10. The Angeion Group will also perform other tasks including: 1) mailing the Proposed Notice to Settlement Class Members; 2) assisting the Settlement Class Members in completing claim forms; 3) maintaining a website regarding the settlement; 4) verifying all claims submitted; 5) informing the parties of all persons opting out of the Settlement Class; and 6) providing the parties with a list of accepted and rejected claims and the total to be paid to each claimant. Id. at 6-7.
The Proposed Notice states the nature of the lawsuit, the details of the Agreement, the names of counsel and the Angeion Group, the reason for receiving the notice, and the date and time of the final settlement approval hearing. Doc. No. 58-4 at 2-3. Within seven days after preliminary approval of the Agreement, the Proposed Notice will be mailed to the identified addresses of the Settlement Class Members. Doc. No. 58-1 at 10. Settlement Class Members will have sixty days to submit their claims to the Settlement Fund, and they must provide their full contact information and verify ownership of a Recycled Number. Id.; Doc. No. 58-4 at 2. Each Settlement Class Member submitting a claim must provide their full legal name on the claim form, which cannot match the name of an Initial Owner. Doc. No. 58-1 at 11. Furthermore, each Settlement Class Member submitting a claim must identify the date they obtained ownership of a Recycled Number so that the Angeion Group can confirm that a change in ownership of that phone number occurred after the Initial Owner consented to receive text message coupons from Pollo Tropical. Id.
The Proposed Notice also provides procedures for objecting to the settlement or opting out of it. Doc. No. 58-4 at 3. To object to the settlement, a Settlement Class Member must file a written objection to the Clerk no later than forty-five days prior to the date of the final settlement approval hearing. Doc. No. 58-3 at 5. Copies of any written objections must be served on Class Counsel, Defendant's counsel, and the Angeion Group. Doc. No. 58-4 at 3. Settlement Class Members are not required to attend the final settlement approval hearing for the Court to consider their objection. Id. To opt-out of the Agreement, Settlement Class Members must postmark a written request for exclusion within sixty days of the date the Proposed Notice is sent. Doc. No. 58-1 at 10. The written request must be sent to Class Counsel, Defendant's counsel, and the Angeion Group. Doc. No. 58-4 at 3.
Plaintiff seeks preliminary approval of the settlement of this proposed class action. Doc. No. 57. The Agreement contemplates its preliminary approval, certification of a settlement class, the Proposed Notice being sent to the Settlement Class, a period for claims to be submitted by Settlement Class Members, and ultimately, entry of a final order certifying the Settlement Class and approving the Agreement. Doc. No. 57 at 1-2; Doc. No. 58 at 26. “A class may be certified ‘solely for purposes of settlement where a settlement is reached before a litigated determination of the class certification issue.'” Diakos v. HSS Sys., LLC, 137 F.Supp.3d 1300, 1306 (S.D. Fla. 2015). “Whether a class is certified for settlement or for trial, the Court must find that the prerequisites for class certification under Rule 23(a) and (b) of the Federal Rules of Civil Procedure are met.” Id. The Court is mindful that to grant final approval of a settlement class, it must perform a “rigorous analysis” to ensure that the movant meets the Rule 23 requirements before certifying the class. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 2248, 138 L.Ed.2d 689 (1997) (“Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems …. But other specifications of [Rule 23] - those designed to protect absentees by blocking unwarranted or overbroad class definitions - demand undiluted, even heightened, attention in the settlement context.”).
Although not explicitly stated in Rule 23, the Eleventh Circuit also requires that the class representative has standing to sue and that the proposed class is adequately defined and clearly ascertainable. See Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000) (“[P]rior to the certification of a class … the district court must determine that at least one named class representative has Article III standing to raise each class subclaim.”). Rule 23(a) is satisfied when the movant shows: 1) the class is so numerous that joinder of all members is impracticable; 2) there are questions of law or fact common to the class; 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a).
Should the movant seek certification of a class under Rule 23(b)(3), as is the case here, the movant must satisfy two additional requirements in addition to those provided under Rule 23(a). First, the movant must show that questions of law or fact common to the class members predominate over any questions affecting individual members. Fed.R.Civ.P. 23(b)(3). Second, the movant must show that a class action is superior to other available methods for fairly and efficiently adjudicating the dispute. Id.