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Consumer Class Actions: 2. Hawaii Case Law Interpreting Rule 23

Whether a suit shall be allowed to proceed as a class action is a question of fact to be determined by the trial court within its discretion. Life of Land v. Burns, 59 Haw. 244, 580 P.2d 405 (1978). The trial court has broad discretion in deciding whether to certify a class. Levi v. University of Hawaii, 67 Haw. 90, 679 P.2d 129 (1984); Akau v. Olohana Corp., 65 Haw. 383, 652 P.2d 1130 (1982); Filipo v. Chang, 62 Haw. 626, 618 P.2d 295 (1980). Discretionary authority is normally undisturbed on review. Levi, supra.

Consumer Class Actions: HAWAII RULES OF CIVIL PROCEDURE

Rule 23. Class Actions62

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if

(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,

Consumer Class Actions: 1. Comparison with Rule 23 of the Federal Rules of Civil Procedure

The Idaho Rule of Civil Procedure governing class actions was amended effective July 1, 2016, to move from Rule 23 to Rules 77–79.63 This was part of a larger renumbering, with the result that the class action rules are grouped with other special proceedings. The Idaho Rules are substantially similar, except for their location, to the federal rule, though Idaho does not have an analog to Fed. R. Civ. P. 23(f). The Idaho Supreme Court considers “federal authority . . .

Consumer Class Actions: 3. Rule 77(a) of the Idaho Rules of Civil Procedure (Formerly Rule 23(a))

The first factor in Rule 77(a) (at the time Rule 23(a)) is that “the class is so numerous that joinder of all members is impracticable.” BHA Invs., Inc. v. City of Boise, 141 Idaho 168, 172, 108 P.3d 315, 319 (2004). In BHA Investments, the Idaho Supreme Court found that the “district court did not abuse its discretion in deciding that seventeen known entities located within the City did not constitute a class that was so numerous that joinder of all members is impracticable.” Id.

Consumer Class Actions: 4. Rule 77(b) of the Idaho Rules of Civil Procedure (Formerly Rule 23(b))

a. Rule 77(b)(1) and (2)

Class actions may be used to obtain declaratory and injunctive relief. See, e.g., O’Boskey v. First Fed. Sav. & Loan Ass’n of Boise, 112 Idaho 1002, 739 P.2d 301 (1987). A class action may be used to confirm or adjudicate rights that will be enforceable for or against similarly situated persons. Twin Lakes Improvement Ass’n, Inc. v. E. Greenacres Irrigation Dist., 90 Idaho 281, 287, 409 P.2d 390, 392 (1965).

b. Rule 77(b)(3)

Consumer Class Actions: 6. Rule 77(d) of the Idaho Rules of Civil Procedure (Formerly Rule 23(d))

The Idaho Supreme Court held that an amended complaint filed after class certification did not revive the timeliness of the defendant’s request for a jury trial. Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 388, 396–97, 111 P.3d 73, 81–82 (2005), overruled on other grounds by Farber v. Idaho State Ins. Fund (Farber II), 152 Idaho 495, 272 P.3d 467 (2012). The Supreme Court recognized the right of intervenors in a class action to request a jury trial after the time had expired, but distinguished other parties.

Consumer Class Actions: 7. Rule 78 of the Idaho Rules of Civil Procedure (Formerly Rule 23(f))

A stockholder’s derivative action is an action brought by one or more stockholders of a corporation to enforce a corporate right or remedy a wrong to the corporation in cases where the corporation fails and refuses (because it is controlled by the wrongdoers or for other reasons) to take appropriate action for its own protection. McCann v. McCann, 138 Idaho 228, 233, 61 P.3d 585, 590 (2002) (quoting 19 Am. Jur. 2d Corporations § 2250, 151–52 (1986)).

Consumer Class Actions: 10. Insurance Issues

A single deductible applies to all the claims in a class action rather than a deductible for each class member’s claims. City of Idaho Falls v. Home Indem. Co., 126 Idaho 604, 609, 888 P.2d 383, 388 (1995) (citing Previews, Inc. v. Cal. Union Ins. Co., 640 F.2d 1026 (9th Cir. 1981) (ambiguity in the insurance policy of whether the deductible applied to each class member resolved against the insurer thus applying only a single deductible for the class action)).

Consumer Class Actions: 11. Choice of Law

Idaho procedural law applies even if the Idaho court is applying another jurisdiction’s substantive law based on application of choice of law. Orrock v. Appleton, 147 Idaho 613, 617–18, 213 P.3d 398, 402–03 (2009); see, e.g., Sword v. Sweet, 140 Idaho 242, 247, 92 P.3d 492, 497 (2004).

Consumer Class Actions: 12. One-Way Intervention

In class actions, the rules of procedure contemplate that ordinarily the class will be determined and given notice early in the proceedings and prior to deciding the merits. See Idaho R. Civ. P. 77(c); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177–78, 94 S. Ct. 2140, 2152–53, 40 L. Ed. 2d 732 (1974); Anderson v. Air West Inc. (In re Consol. Pretrial Proceedings in Air W. Sec. Litig.), 73 F.R.D. 12, 14–15 (N.D. Cal. 1976).

Consumer Class Actions: 13. Educational Issues

The Constitutionally Based Educational Claims Act (CBECA), Idaho Code §§ 6-2201 to 2216, requires that a plaintiff first sue the local school district before suing the State of Idaho. In Joki v. Idaho, 162 Idaho 5, 11, 394 P.3d 48, 54 (2017), the Idaho Supreme Court rejected the argument that this nullifies Rule 77 governing class actions. The Supreme Court ruled that the argument that CBECA unconstitutionally altered the Idaho Rules of Civil Procedure is “unavailing.” Id.

Consumer Class Actions: 14. Standing

Those seeking to certify a class must first show that they have standing. Zeyen v. Pocatello/Chubbock Sch. Dist. No. 25, 165 Idaho 690, 697, 451 P.3d 25, 32 (2019). Idaho has adopted the constitutionally based federal justiciability standard. Id. For class actions, standing is met “if at least one named plaintiff satisfies the requirements of standing against every named defendant.” Zeyen, 165 Idaho at 698, 451 P.3d at 33 (quoting Tucker v. Idaho, 162 Idaho 11, 19, 394 P.3d 54, 62 (2017)).

Consumer Class Actions: 15. Miscellaneous Class Actions Allowed

Joinder of parties by class action has been used in cases involving, for example, claims of antitrust violations, Pope v. Intermountain Gas Co., 103 Idaho 217, 221 n.7, 646 P.2d 988, 992 n.7 (1982) (noting joinder allowed by trial court); violations of rate schedules, Bush v. Upper Valley Telecable Co., 96 Idaho 83, 524 P.2d 1055 (1974); right to tax refunds, Ware v. Idaho State Tax Comm’n, 98 Idaho 477, 567 P.2d 423 (1977); wrongful imposition of assumption fees by a mortgagee, O’Boskey v. First Fed. Sav.

Consumer Class Actions: IDAHO RULES OF CIVIL PROCEDURE

Rule 77. Class Actions64

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if :

(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;

Consumer Class Actions: 1. 735 ILCS 5/2-801—Prerequisites for Maintenance of a Class Action

The full text of the Illinois class action statute is provided at the end of this chapter.67 Class certification in Illinois is governed by Section 2-801 of the Illinois Code of Civil Procedure (735 ILCS 5/2-801), which is patterned after Rule 23 of the Federal Rules of Civil Procedure. Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100; 835 N.E.2d 801 (2005), cert. denied, 126 S. Ct. 1470, 164 L. Ed. 2d 248 (2006).

Consumer Class Actions: 2. Pleading Requirements

Illinois is a fact-pleading jurisdiction, mandating that plaintiffs allege facts sufficient to bring their claims within the scope of the cause of action being asserted. See Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 408 (1996). The relevant question in deciding whether a class action has been adequately pleaded is whether the complaint contains allegations which implicate, or bring the complaint within, the prerequisites of the class action statute. Weiss v. Waterhouse Securities, Inc., 208 Ill. 2d 439, 804 N.E.2d 536 (2004).

Consumer Class Actions: 3. Certification Hearing

Certification hearings do not pertain to the merits of the controversy. Chultem v. Ticor Title Insurance Co., 401 Ill. App. 3d 226, 238, 927 N.E.2d 289 (1st Dist. 2010), leave to appeal denied 237 Ill. 2d 553, 938 N.E.2d 519 (Ill. 2010); Cruz v. Unilock Chicago, Inc., 383 Ill. App. 3d 752, 775, 892 N.E.2d 78 (2nd Dist. 2008). Rather, the scope of the hearing is whether the requirements of Section 2-801 have been met. Id., see also Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 667 (7th Cir. 2001); Eggleston v.

Consumer Class Actions: 4. Interlocutory Appeals and Appellate Review

Illinois Supreme Court Rule 306(a)(8) allows a party to petition the Illinois Appellate Court for leave to appeal from a trial court order denying or granting class action certification. A certification decision is not reviewed de novo, but for an abuse of discretion. Weiss v. Waterhouse Securities, Inc., 208 Ill. 2d 439, 804 N.E.2d 536 (2004). The filing of a motion for reconsideration does not toll the time for filing an interlocutory appeal. Ellis v. AAR Parts Trading, Inc., 357 Ill. App. 3d 723, 828 N.E.2d 726 (1st Dist. 2005).

Consumer Class Actions: 5. Numerosity/Impracticality of Joinder—Section 801(1)

As noted, the Illinois statute requires that a class be “so numerous that joinder of all members is impractical.” The potential number of class members need only be great enough to render separate litigation impractical. See McCabe v. Burgess, 57 Ill. App. 3d 450, 373 N.E.2d 327 (4th Dist. 1978).

The impracticability of joinder depends on several factors in addition to mere numbers. The Illinois statute and Fed. R. Civ. P. 23 use the same language. Among the factors taken into consideration are