*

Honorable Richard H. Mills, U.S. District Judge for the

Central District of Illinois, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-8234.

Felton E. HUDSON; George Duncan; R. Tex Ritter; Russ King;

Gary Roberts; Neil Rowe; John D. Wallace; Ella Mae Williams;

Betty Hofele; Ed Miller; Charles Chambers; Frank Lynch; Joseph

Carrabino; James S. Brown, Jr.; Jerry Lilly; George Bailey; Jim

Peoples; W. Travis Whitaker; Carolyn Cassell; Joseph P.

McDaniel; Gary Robinson; Ernie Pariseau, on behalf of themselves

and all those similarly situated, Plaintiffs-Appellants,

v.

DELTA AIR LINES, INC.; R.H. Heil, in his official capacity as a

member of the Delta Air Lines Administrative Committee; W.W.

Hawkins, in his official capacity as a member of the Delta Air

Lines Administrative Committee; J.W. Callison, in his official

capacity as a member of the Delta Air Lines Administrative

Committee; C.J. May, in his official capacity as a member of the

Delta Air Lines Administrative Committee; R.A. McClelland, in his

official capacity as a member of the Delta Air Lines Administrative

Committee; T.J. Roeck, in his official capacity as a member of the

Delta Air Lines Administrative Committee; C.A. Thompson, in his

official capacity as a member of the Delta Air Lines Administrative

Committee; Robert S. Harkey, in his official capacity as a member

of the Delta Air Lines Administrative Committee; Maurice Worth, in

his official capacity as a member of the Delta Air Lines

Administrative Committee; H.D Greenberg, in his official capacity

as a member of the Delta Air Lines Administrative Committee; R.W.

Coggin, in his official capacity as a member of the Delta Air Lines

Administrative Committee; W.R. Braham, in his official capacity as

a member of the Delta Air Lines Administrative Committee,

Defendants-Appellees.

Aug. 5, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:94-01296-CV), G. Ernest Tidwell, Chief

Judge.

Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,

and MILLS*, District Judge.

PER CURIAM:

This is an interlocutory appeal from the order of the United
 1

This court granted the plaintiffs' petition for

interlocutory review pursuant to 28 U.S.C. § 1292(b), which

permits appeals to be taken in civil cases from decisions not

otherwise appealable when the district court certifies that the

"order involves a controlling question of law as to which there

is substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the

ultimate termination of the litigation." 28 U.S.C. § 1292(b). 

 2

We refer to the amended complaint as the complaint. 

 3At this preliminary stage of the case and for purposes of

this appeal, we must treat the allegations of the complaint as

true. 

 4A notice issued to "All Members of the Delta Family" stated

that, due to adverse economic forces and to avoid "downsizing,"

it was necessary for the airline to substantially and permanently

reduce its costs, which, among other things, would require

revision of the company-provided medical and dental benefits

package. (R2-20, Exhibit I). 

States District Court for the Northern District of Georgia denying

the plaintiffs' motion for class certification and dismissing a

pendent state law claim for lack of jurisdiction.1

 We affirm.

I. BACKGROUND

The plaintiffs are former employees of Delta Air Lines, Inc.

("Delta"), who retired between July 23, 1992 and January 1, 1993.

On May 16, 1994, they commenced this action against Delta and

various Delta officials based upon alleged violations of the

Employment Retirement Income Security Act, 29 U.S.C. §§ 1001 et

seq. ("ERISA"), and also asserting a state law breach of contract

cause of action. On June 3, 1994, they filed an amended complaint

to add certain defendants. According to the allegations of the

complaint,2

 the facts giving rise to the lawsuit are as follows.3

On July 23, 1992, Delta announced impending changes in the

medical insurance benefits plan provided by the company for its

employees and retirees.4 Employees were told that those who
retired after January 1, 1993 would receive reduced benefits and be

required to pay higher premiums than persons who retired prior to

that date. In subsequent weeks, the company disseminated further

information, both orally and in writing, which stated that

individuals who retired on or before January 1, 1993, would be

"grandfathered" with respect to their current medical benefits,

meaning, they would be entitled to the same level of coverage

throughout the course of their retirement and would not be affected

by any future changes in the medical insurance plan offered by the

airline. In addition, Delta assured its employees that it did not

intend at that time to offer any package of enhanced retirement

incentives in the future. The latter declarations were made orally

during retirement planning seminars conducted by the company and

"in numerous conversations with potential Delta retirees." (R1-3

at ¶ 45).

The complaint further alleged that the plaintiffs chose their

retirement dates in reliance on Delta's promises that their level

of medical coverage and premiums would remain constant throughout

their retirement and that no improved retirement package was in the

planning stage at the time they made their decision. After they

retired, however, the company reduced the level of their medical

benefits and required them to pay higher premiums for coverage.

Also, contrary to the statements made denying a plan to offer an

enhanced benefits package in the future, retirement terms more

favorable than those extended to the plaintiffs were contemplated

by the airline prior to January 1, 1993 and in fact were offered to

certain eligible employees on August 23, 1993 (hereinafter referred
to as the "Special Retirement Plan").

These allegations formed the basis for the first four counts

of the complaint. Count I urged that, when the plaintiffs retired

on or before January 1, 1993, they entered into a bilateral

contract with Delta, enforceable under ERISA, which mandated that

the company continue to provide the same medical benefits package

to the plaintiffs throughout their retirement years. Count II

asserted that by making false assurances to the plaintiffs

regarding the continuation of the terms of their retirement

benefits and by denying the intention to offer the Special

Retirement Plan in the future, Delta breached its fiduciary duty to

the plaintiffs in violation of ERISA. Count III charged that Delta

fraudulently induced the plaintiffs to retire on or before January

1, 1993 for the purpose of preventing their participation in the

Special Retirement Plan. Count IV claimed that by falsely

informing the plaintiffs that no better retirement package would be

forthcoming after January 1, 1993, and then extending such a

package to subsequent retirees, Delta unlawfully discriminated

against certain benefits plan participants in favor of others,

contrary to ERISA.

In addition to the ERISA causes of action contained in Counts

I through IV, Count V of the complaint alleged a suit for breach of

contract under Georgia law. This claim was predicated upon

allegations that Delta made repeated promises to the plaintiffs

during their employment that retirees who were at least fifty-two

years' old and who had worked for the airline for at least ten

years would be entitled to certain flying privileges throughout
their retirement. However, on October 26, 1993, the company

eliminated flight privileges for any retiree who had accepted

employment with another airline or affiliate.

On August 12, 1994, the plaintiffs moved for class

certification pursuant to Fed.R.Civ.P. 23. In a brief in support

of the motion, the plaintiffs identified the putative class as over

1,800 "former employees of Delta Air Lines, Inc., who retired from

employment at Delta Air Lines between the dates of July 23, 1992

and January 1, 1993, inclusive." (R1-11, Brief at 2). The

plaintiffs alleged that the causes of action set forth in Counts I

through V of the complaint could best be pursued in the form of a

class action because, inter alia, they involved common issues of

law and fact and the claims of the class representatives were

typical of those of the class as a whole.

Thereafter, the defendants moved to dismiss Count V of the

complaint for lack of subject matter jurisdiction on the ground

that it was unrelated to the federal ERISA claims asserted in

Counts I through IV and lacked the requisite diversity of

citizenship. The defendants also opposed class certification,

contending in part that the ERISA claims were not amenable to

class-wide proof because they turned on each retiree's individual

reliance on the alleged assurances made by Delta. Furthermore, the

defendants argued, the requirements of commonality and typicality

necessary for class certification were not met because the claims

depended, all or in part, upon a variety of alleged oral

representations, thereby necessitating proof of the particular
 5

According to the allegations of the complaint, Count I was

based upon oral and written representations. The claims

involving the Special Retirement Plan resulted solely from

alleged oral promises. 

 6The evidence submitted by the plaintiffs included company

memorandums dated both before and after January 1, 1993. (See

generally R2-20, Exhibits). Only the newsletter, which was dated

August 27, 1992, and those memorandums issued prior to January 1,

1993 could have affected the timing of the plaintiffs'

retirement. An affidavit of one of the plaintiffs, Felton E.

Hudson, was also proffered. It states that "[s]uch memos were

posted on company bulletin boards." (Id. at Exhibit B, ¶ 6). No

objections to the inclusion of this evidence in the record were

made by Delta. We presume that it is properly before us. 

statements made to each retiree.5 The defendants conceded that "if

Plaintiff's claims were based on uniform written documents received

and relied on by the entire class, commonality and typicality could

be present." (R2-16 at 36). They maintained, however, that the

plaintiffs failed to carry their burden of proof on this score

because they offered no evidence that Delta ever issued such

uniform written assurances.

The plaintiffs then filed a reply to the motion to dismiss

Count V and to the defendants' opposition to class certification.

In support of the latter issue, the plaintiffs submitted, inter

alia, copies of a newsletter disseminated by Delta to its employees

and several intracompany memorandums, all of which discussed the

changes in the medical benefits plan effective January 1, 1993.6

In an order dated November 4, 1994, the district court granted

the defendants' motion to dismiss Count V for lack of jurisdiction

and denied the plaintiffs' motion for class certification. With

respect to Count V, the court found that the requirements for

supplemental jurisdiction under 28 U.S.C. § 1367 were not present

because the state law claim alleged therein did not sufficiently
 7

When the district court certifies that interlocutory review

of an order is warranted, the court of appeals may, in its

discretion, permit an appeal to be taken if application is made

to it within ten days after entry of the district court's

certification. 28 U.S.C. § 1292(b); General Television Arts,

Inc. v. Southern Ry. Co., 725 F.2d 1327, 1330 (11th Cir.1984). 

involve the same facts, occurrences, witnesses or evidence as the

federal ERISA claims and it was separately maintainable from the

ERISA counts. On the issue of class certification of the ERISA

causes of action, the court found that the plaintiffs failed to

furnish proof rising to the level imposed by federal law which

would demonstrate commonality and typicality. In particular, the

court stated that the plaintiffs

have not shown that the questions of fact in each affected

retiree's case are common to any other retiree's case.

According to the plaintiffs, Delta made the representations

that are at issue in this case orally, during several

retirement planning seminars, and in writing, in various

mailouts and fliers posted on bulletin boards. Plaintiffs

must show not only whether each retiree was aware of these

representations, but more importantly, the extent to which

each retiree relied on the alleged representations in making

his or her retirement decision. These are factual issues that

must be resolved independently for each retiree.

(R2-24 at 8).

On November 21, 1994, the plaintiffs moved for reconsideration

of the district court's order, or in the alternative, for the

certification necessary to seek an interlocutory appeal in

accordance with 28 U.S.C. § 1292(b). See supra note 2. The court

denied the request for reconsideration, but did issue the § 1292(b)

certification. This court subsequently permitted the appeal.7

II. STANDARD OF REVIEW

 The district court's dismissal of Count V of the complaint

for lack of subject matter jurisdiction is a question of law which
is reviewed de novo on appeal. McMillian v. FDIC, 81 F.3d 1041,

1045 (11th Cir.1996). We consider the court's denial of class

certification under an abuse of discretion standard. Washington v.

Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th

Cir.1992); Coon v. Georgia Pacific Corp., 829 F.2d 1563, 1566

(11th Cir.1987).

III. DISCUSSION

A. Dismissal of Count V.

 We first address the district court's dismissal of Count V

for lack of subject matter jurisdiction. There is no question in

this case that diversity of citizenship does not exist, thus,

subject matter jurisdiction over the state law allegations in Count

V depends upon the existence of that aspect of supplemental

jurisdiction formerly known as pendent claim jurisdiction. See

Palmer v. Hospital Auth. of Randolph County, 22 F.3d 1559, 1566

(11th Cir.1994). The presence of supplemental jurisdiction is

governed by 28 U.S.C. § 1367. Subsection (a) of that statute

defines the power of the federal courts to hear supplemental

claims. Palmer, 22 F.3d at 1566. It provides in relevant part

that

in any civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that

they form part of the same case or controversy under Article

III of the United States Constitution.

28 U.S.C. § 1367(a). The district court had original jurisdiction

(in this case, federal question jurisdiction) over the ERISA

counts. The court's power to adjudicate Count V therefore turns on

whether the state law cause of action alleged therein is so related
to an ERISA ground that they form part of the same case or

controversy. In deciding whether a state law claim is part of the

same case or controversy as a federal issue, we look to whether the

claims arise from the same facts, or involve similar occurrences,

witnesses or evidence. Palmer, 22 F.3d at 1566.

 We agree with the district court that Count V of the

complaint does not arise from the same case or controversy as the

ERISA causes of action. The record shows that the flight

privileges at issue in Count V were not part of an ERISA benefits

plan and were administered by a different department of Delta.

Moreover, the alleged facts underlying Count V are completely

unrelated to the allegations in support of the ERISA claims. The

only factor they share in common is that the airline's decisions

with respect to ERISA benefits and flight benefits affected certain

retirees. This does not provide a sufficient nexus between the

federal and state causes to support supplemental jurisdiction. We

consequently affirm the dismissal of Count V. In so doing, we

necessarily find that the issue of class certification as to Count

V is moot.

B. Denial of Class Certification.

 Next, we consider the district court's denial of class

treatment of Counts I, II, III and IV, the ERISA grounds. Class

certification is governed by Fed.R.Civ.P. 23. Rule 23 permits the

maintenance of a class action when (1) the class is so numerous

that joinder of all of its members is impracticable, (2) questions

of law or fact common to the class are present, (3) the claims or

defenses of the representative parties are typical of the claims or
 8

If the requirements of Fed.R.Civ.P. 23(a) are met, the

district court must go further and determine whether the facts

before the court satisfy Fed.R.Civ.P. 23(b). That subsection

provides that class actions are appropriate only when (1) the

prosecution of separate actions would create a risk of

inconsistent verdicts or where individual adjudications would, as

a practical matter, be dispositive of the interests of class

members who are nonparties; or (2) the party opposing the class

has acted or refused to act on grounds generally applicable to

the putative class such that declaratory or injunctive relief

with respect to the class as a whole would be appropriate; or

(3) questions of law or fact common to members of the class

predominate over issues affecting individual members and class

adjudication is preferable to other methods of litigation for

purposes of a fair and efficient resolution of the controversy. 

Because the district court found that the Rule 23(a)

prerequisites of commonality and typicality were not present, it

did not reach the Rule 23(b) issue. Our review on appeal is

therefore confined to the district court's subsection (a)

determination. 

defenses of the class and (4) the representative parties will

sufficiently protect the interests of the class. Fed.R.Civ.P.

23(a).8

 The burden of proving these prerequisites is on the

representative party or parties seeking class certification.

Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir.1984); Nelson

v. United States Steel Corp., 709 F.2d 675, 678-79 (11th Cir.1983).

 As stated earlier, the district court's decision to deny

class certification was based upon the absence of commonality and

typicality. These factors provide the necessary link between the

class representatives and the class members. Washington, 959 F.2d

at 1569 n. 8. Although the issues of commonality and typicality

are separate inquiries, proof of each also "tend[s] to merge." Id.

The plaintiffs contend that commonality and typicality are

present with respect to Count I because, although they and the

putative class members received the alleged assurances through

different media and from different sources, the airline issued a
 9

In support of this assertion the defendants refer to a

statement contained in a supplement to Delta's benefits handbook,

which described changes in post-retirement medical and dental

benefits effective January 1, 1992. The supplement states, "[a]s

always, Delta reserves the right to change, modify, amend or

discontinue the benefits described in this supplement of the

Benefits Handbook at any time." (Appendix of Appellees, Tab A,

Exhibit 2; see also id. at Tab J, Exhibit 77). This evidence

was not made a part of the record in the district court. 

Consequently, we do not consider it on appeal. 

uniform message to all employees concerning the terms of their

future medical benefits plan, which depended on their retirement on

or before January 1, 1993. Likewise, they claim, Delta issued

identical information to all members of the putative class

concerning the Special Retirement Plan, that is, that no such plan

was contemplated for a later date.

In response, the defendants essentially argue that the ERISA

claims have no merit. They maintain that Delta reserved the right

to amend or discontinue the plaintiffs' medical benefits at any

time.9

 Thus, the defendants insist that the plaintiffs cannot

prove, class-wide or otherwise, the formation of the purported

bilateral contract alleged in Count I. In addition, the defendants

reiterate that evidence of individual reliance on a variety of

purported oral representations is necessary with respect to all of

the ERISA counts and state that, consequently, each plaintiff's

claims must be determined on a case-by-case basis.

We stress initially that the merits of the plaintiffs' claims

are not before us. See Eisen v. Carlisle & Jacquelin, 417 U.S.

156, 178, 94 S.Ct. 2140, 2153, 40 L.Ed.2d 732, 749 (1974) (quoting

Miller v. Mackey Int'l, 452 F.2d 424, 427 (5th Cir.1971) (" "In

determining the propriety of a class action, the question is not
 10The evidence contained in the record regarding the Special

Retirement Plan discloses that it was offered only to a select

group of employees who were at least fifty-two years' old on

November 1, 1993 and who worked in particular departments of the

airline targeted for downsizing. Participation was also limited

to a certain number of persons in those departments to fit the

business needs of the airline. (R2-20, Exhibits E, F). There

was no guarantee that persons eligible for the program would be

allowed to enroll. If requests to retire under the plan exceeded

availability, acceptance was based upon seniority. (Id. at

Exhibit F). It is most unlikely that all members of the putative

whether the plaintiff or plaintiffs have stated a cause of action

or will prevail on the merits, but rather whether the requirements

of Rule 23 are met.' "). Nevertheless, "evidence relevant to the

commonality requirement is often intertwined with the merits."

Nelson, 709 F.2d at 679. Accordingly, it sometimes is necessary to

"to probe behind the pleadings before coming to rest on the

certification question." General Tel. Co. of the Southwest v.

Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740,

752 (1982).

 The issue of commonality with respect to the Count I contract

claim is fundamentally different than the commonality that must be

shown to support class certification of the Special Retirement Plan

allegations described in Counts II through IV. We find that the

claims relating to the Special Retirement Plan are not susceptible

to class-wide proof. Even if the plaintiffs are able to prove that

Delta disseminated a false and uniform message to all potential

retirees that no such plan was in the works at the time they made

their decision to retire, they would also have to show that all

members of the class would have deferred their retirement in the

hope that they would be eligible for the Special Retirement Plan to

be offered in the future.10 This sort of decision would necessarily
class were eligible to participate in the program or would have

delayed their retirement on the chance that they might be

selected. In any event, the plaintiffs made no showing on this

issue. 

 11As noted earlier, the written documentation made a part of

the record in support of the motion for class certification

consists of a company newsletter and intracompany memorandums. 

have been highly individualized for each potential retiree.

 On the other hand, the merits of the Count I contract cause

depend simply on evidence of the formation of the bilateral

contract alleged therein. This will require proof of written plan

documents which notified the putative class that the terms of their

medical benefits plan would remain constant throughout their

retirement if they retired on or before January 1, 1993.

ERISA requires that welfare benefit plans be governed by

written plan documents which are to be prepared and filed in

compliance with ERISA's reporting and disclosure

requirements.... Accordingly, any retiree's right to lifetime

medical benefits at a particular cost can only be found if it

is established by contract under the terms of the

ERISA-governed benefit plan document.

Alday v. Container Corp. of America, 906 F.2d 660, 665 (11th

Cir.1990) (citations omitted), cert. denied, 498 U.S. 1026, 111

S.Ct. 675, 112 L.Ed.2d 668 (1991). This type of claim seems, on

the surface, to be amenable to class-wide proof. So far, however,

the plaintiffs have failed to demonstrate the existence of such

written plan documents.11 The plaintiffs' reliance on the alleged

uniform oral statements guaranteeing the same level of medical

benefits throughout their retirement is of no help because "there

[is] no federal common law right to promissory estoppel under ERISA

in cases involving oral amendments to or modifications of employee
 12A federal common law claim of equitable estoppel may come

into play based upon oral interpretations of ambiguous ERISA plan

documents. Alday, 906 F.2d at 666; Kane v. Aetna Life Ins., 893

F.2d 1283, 1285-86 (11th Cir.), cert. denied, 498 U.S. 890, 111

S.Ct. 232, 112 L.Ed.2d 192 (1990). "However, estoppel is not

available either for oral modifications (as opposed to

interpretations) or when the written plan is unambiguous." Glass

v. United of Omaha Life Ins. Co., 33 F.3d 1341, 1347 (11th

Cir.1994). The plaintiffs do not allege in this case that the

controlling ERISA plan documents were ambiguous. 

 13The newsletter defined "grandfathered" persons as

"includ[ing] those individuals who were Delta employees as of

August 31, 1991 and were age 52 or older as of January 1, 1992." 

(R2-20, Exhibit H). It also stated that "[i]f you elect to

retire early prior to age 62 on January 1, 1993, the early

retirement medical and dental contribution will not apply. 

However, the service related contribution may apply if you were

not part of the grandfathered group." Id. It is not clear from

this language exactly what it meant to be "grandfathered." 

Moreover, although the evidence indicates that Delta told

potential retirees that certain employee contributions would be

waived for persons in the "grandfathered" group who retired on or

before January 1, 1993, nothing in the record supports the

plaintiffs' claims that they were also told that the particular

type of medical benefits included in the ERISA plan would be

provided in perpetuity. 

plans governed by ERISA."12 Id. at 666.

In Alday, this court stated in dicta that ERISA fiduciaries

might not be insulated from liability on the basis of the formal

written plan documents where contradictory and fraudulent promises

are made in informal communications for the purpose of deceiving

employees with respect to their benefits. Id. at 666 n. 15. We

voice no opinion as to whether the plaintiffs could state a claim

under such circumstances. Even if they could, none of the evidence

of record to date, which consists solely of informal company

communications, supports the plaintiffs' allegations that they were

assured that the terms of their medical coverage would never

change.13 With this record as our only source of information, we

can find no abuse of discretion by the district court in denying
 14For example, the plaintiffs may yet be able to produce

written plan documents in support of Count I. We caution,

however, that the documentation currently in the record indicates

that Delta made certain differentiations among various groups of

retirees depending upon an employee's age at retirement, years of

service and whether some of that service was with another

airline. Thus, even if class certification were appropriate, it

might be necessary to define and provide for various subclasses. 

But, we also note that at this point the plaintiffs' case appears

to be based solely upon a theory of promissory estoppel, which is

not cognizable under ERISA. Alday, 906 F.2d at 666. If the

plaintiffs are unable to state a claim for relief, any question

as to class certification will be moot. See id. at 667. 

 15Although a hearing is not required prior to granting or

denying a motion for class certification, Grayson v. K Mart

Corp., 79 F.3d 1086, 1099 (11th Cir.1996), such a procedure may,

in an appropriate case, aid the court in deciding the issue. 

 16Although the issue of class certification should be

resolved in the early stages of a case if possible, prior

discovery is often necessary to sufficiently define the proper

scope of an alleged class or subclass. Here, the plaintiffs

moved for class treatment prior to conducting any discovery,

traveling solely on the broad allegations of the complaint. Such

an approach may be acceptable in some cases, but this is not one

of them. Because the entitlement to ERISA benefits is controlled

by formal plan documents, the analysis of any claim arising from

the alleged failure to comply with an ERISA plan must begin with

an examination of those documents, which will also define the

class or classes of persons governed thereby. The record in the

class certification as to Count I of the complaint.

Of course, if, through further proceedings, the plaintiffs are

able to clarify and better support the need for class

certification, the district court remains free to revisit the

issue.14 The determination of whether a class should be certified

should be made "[a]s soon as practicable after the commencement of

an action." Fed.R.Civ.P. 23(c)(1). Additional discovery on the

issue and a hearing may be helpful.15 See Washington, 959 F.2d at

1570-71. We leave any further development of the class treatment

issue with respect to Count I to the sound discretion of the

district court.16 We simply hold that, at this stage of the
present case shows that discovery began on August 17, 1994 and

continued until March 22, 1995, when it was stayed by the

district court pending the resolution of this appeal. The

plaintiffs failed to make the pertinent ERISA plan documents a

part of the record during this time. By suggesting that the

district court may, in its discretion, reopen the class

certification issue after further development of the case, we do

not mean to imply that the court should do so. 

proceedings, the district court did not abuse its discretion in

denying class certification on the record before us.

IV. CONCLUSION

In accordance with the foregoing, we AFFIRM the dismissal of

Count V for lack of subject matter jurisdiction, we AFFIRM the

denial of class certification with respect to Counts I, II, III and

IV and we REMAND the case to the district court for further

proceedings.