No. 99-17073

273 F.3d 1266 (2001)

Robin ZINSER, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. ACCUFIX RESEARCH INSTITUTE, INC., formerly d.b.a. as TPLC, Inc., and Telectronics Pacing Systems, now known as TPLC Holdings, Inc., a Colorado corporation; Pacific Dunlop Limited, and Nucleus Limited; Nucleus Limited, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed June 15, 2001.

Amended December 14, 2001.

Attorney(s) appearing for the Case

Elizabeth J. Cabraser, James M. Finberg (argued), Melanie M. Piech, and Scott P. Nealey, Leiff, Cabraser, Hiemann & Bernstein, LLP, San Francisco, California; C. Brooks Cutter, Friedman, Callard, Cutter & Panneton, Sacramento, California; Robert Hollingsworth, Cors & Bassett, Cincinnati, Ohio, for the plaintiff-appellant.

Charles F. Preuss, Thomas J. Pulliam, Jr., and Catherine W. Levin, Preuss, Walker & Shanagher, LLP, San Francisco, California; Charles P. Goodell, Jr. (argued), Richard M. Barnes, and Ian Gallacher, Goodell, Devries, Leech & Gray, LLP, Baltimore, Maryland; John M. LaPlante, Gregory J. Fisher, Edson & LaPlante, Sacramento, California; Patrick S. Coffey, Scott J. Fisher (argued), Gardner, Carton & Douglass, Chicago, Illinois; Robert S. Epstein, Epstein, Englert, Staley & Coffey, San Francisco, California, for defendants-appellees.

Before: B. FLETCHER, O'SCANNLAIN, and GOULD, Circuit Judges.

Opinion by Judge GOULD; Dissent by Judge B. FLETCHER.


The majority opinion filed June 15, 2001, is amended as follows:

1) Add the following sentence to the end of the third paragraph of section III. B. 4 (Superiority, Rule 23(b)(3)(D)): Of course, we do not suggest that the causation difficulties necessarily render class certification impossible.

Judges O'Scannlain and Gould have voted to deny the petition for rehearing and the petition for rehearing en banc. Judge Fletcher has voted to grant the petition for rehearing and recommended granting the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the active judges in favor of en banc consideration. Fed.R.App.P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.


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