Consumer Class Actions: 3. In Each of Its Next Two Looks at Rule 16, the Court Concluded the Need for Deep Individualized Inquiries Destroyed Predominance
a. Bayview Crematory—The Need for Deep Individualized Inquiries Destroys Predominance
a. Bayview Crematory—The Need for Deep Individualized Inquiries Destroys Predominance
In Eby, supra, the plaintiffs were taxpayers who alleged a statute imposing a 10 percent state tax on all gambling winnings violated fairness provisions of the State’s Constitution as well as the dormant Commerce Clause. After affirming the trial court’s conclusion that the gambling tax did not violate the State’s Constitution, the Court considered the plaintiffs’ dormant Commerce Clause claim. Id. at 7. The Court did not need to reach the merits of the claim.
None of the three cases discussed above required the court to extend its Rule 16 analysis beyond a consideration of the predominance requisite to class certification. The state’s trial court, though, has provided guidance as to all of the class requisites enumerated within Rule 16. In Gibson v. Universal Underwriters Life Ins. Co., Hills. Cty (NH) Superior Court, No. Dist., CA 04-C-414 (N.H. Super. Ct.
State court class actions have only recently taken hold in New Hampshire. More plaintiffs’ lawyers have discovered the advantages that may flow out of the judicious use of this procedural device. At the same time, defense lawyers have become much more inclined to aggressively challenge bids for class status and to appeal certification orders. Inevitably, additional interpretations of Rule 16 will issue from the state’s highest court during the coming years.
Rule 16. Class Actions171
(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 if:
(1) The class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
The New Jersey class action rules are provided for in the New Jersey Court Rules 4:32-1 and 4:32-2 and largely mirror the language of Fed. R. Civ. P. 23.172 Goasdone v. American Cyanimid Corp., 354 N.J. Super. 519, 527, 808 A.2d 159, 164 (Law Div. 2002) (citing In the Matter of Cadillac V8-6-4 Class Action, 93 N.J. 412, 461 A.2d 736 (1983) (Cadillac)). The exceptions include replacement of Fed. R. Civ.
New Jersey courts construe class action rules liberally. Dugan v. TGI Fridays, Inc., 231 N.J. 24, 46, 171 A.3d 620, 633 (2017); Daniels v. Hollister Co., 440 N.J. Super. 359, 363, 113 A.3d 796, 798 (App. Div. 2015); Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 103, 922 A.2d 710, 718 (2007); Gross v. Johnson & Johnson-Merck Consumer Pharm. Co., 303 N.J. Super. 336, 340–41, 696 A.2d 793, 795 (Law Div. 1997); Saldana v. City of Camden, 252 N.J. Super. 188, 196, 599 A.2d 582, 586 (App. Div. 1991).
The prerequisites for a class action under Rule 4:32-1(a) follow those of Fed. R. Civ. P. 23(a)—(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. If these elements are met, plaintiffs must then show that one of the alternative requirements of Rule 4:32-1(b) (modeling Fed. R. Civ. P. 23(b)) is satisfied. See Goasdone, 354 N.J. Super. at 528, 808 A.2d at 164. The decision in Goasdone illustrates the application of the Rule 4:32-1(a) elements. 354 N.J. Super.
In connection with the standards for a (b)(2) class action certification, in Laufer v. The United States Life Ins. Co., 385 N.J. Super. 172, 896 A.2d 1101 (App. Div. 2006), the Appellate Division approved a (b)(2) class action in which the named plaintiff suffered an “ascertainable loss”—the requisite financial loss to bring a private claim under the New Jersey Consumer Fraud Act—by reason of defendant’s misleading description of its insurance policy.
“The decertification of a class, in whole or in part, is one of the remedies available to a trial court under Rule 4:32-2.” Little v. Kia Motors Am., Inc., 242 N.J. 557, 591, 233 A.3d 377, 396 (2020). With respect to the burden of proof on decertifying a class, Muise v. GPU, Inc., 371 N.J. Super. 13, 851 A.2d 799 (App. Div. 2004), placed on defendants the burden of producing evidence that class treatment was inappropriate. The Appellate Division, however, reversed the trial court, finding defendants had met the burden.
Rule 4:32-2(h) authorizes the court to award counsel fees and litigation expenses if authorized by law, rule or the parties’ agreement. Where plaintiffs’ claims are based on state statutes that contain fee-shifting provisions, New Jersey courts first calculate the lodestar in determining the amount of fees to award to the prevailing party. Rendine v. Pantzer, 141 N.J. 292, 334–35, 661 A.2d 1202 (1995). Courts achieve the lodestar by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. 141 N.J. at 334–35, 661 A.2d at 1226.
There is no blanket prohibition against counsel’s communications with absent putative class members. In Bayshore Ford Truck v. Ford Motor Co., 2009 U.S. Dist. LEXIS 106567, at *29 (D.N.J. Nov. 16, 2009), rev’d in part on other grounds, 540 Fed. App’x 113 (3d Cir.
In 2006, when R. 4:32 was amended to conform to the 2003 revisions to Fed. R. Civ. P. 23, it did not include a counterpart to Rule 23(f) providing for permissive interlocutory appeals of class certification decisions because other New Jersey rules already permitted discretionary interlocutory appeals. See R. 2:5-6 (appeals to the Appellate Division) and R. 2.2-2 (appeals to the Supreme Court). But these rules state the standards for interlocutory appeals in general terms and do not specifically address when interlocutory appeals of class certification decisions should be granted.
Rule 4:32-1. Requirements for Maintaining Class Action175
(a) General 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,
Rule 1-023 NMRA was adopted by the New Mexico Supreme Court effective July 1, 1995.177 In 2000, New Mexico added subparagraph F to Rule 1-023 generally following the wording of Federal Rule 23(f), but New Mexico has not yet adopted the 2003 revisions to Federal Rule 23. In 2011, New Mexico added subparagraph G to Rule 1-023 to govern the disbursement of “residual funds.” At the present time, Rule 23 of the New Mexico Rules of Civil Procedure is no longer identical to Rule 23 of the Federal Rules of Civil Procedure.
a. Early Case Law under the Modern Rule
The vast majority of New Mexico’s state trial court judges still have no experience with class actions, either as judges or as attorneys. The appellate courts are now starting to actively review class action cases, and the law will continue to be developed in the next few years. Most district court judges have overwhelming dockets and very little support staff. In many courts, New Mexico district court judges have a secretary and a bailiff. Law clerks for district court judges are a rarity.
Rule 1-023. Class actions184
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;
Article 9 of the New York Civil Practice Law and Rules (CPLR) is substantially similar to Rule 23 of the Federal Rules of Civil Procedure (Rule 23).185 Compare N.Y. C.P.L.R. § 901(a) (McKinney 2011), with Fed. R. Civ. P. 23 (entitled “Class Actions”). See also In re Colt Indus. S’holder Litig., 77 N.Y.2d 185, 194 (1991) (explaining that CPLR Article 9 “has much in common” with Fed. Rule 23); Amer-A-Med Health Prods., Inc., v. O’Brien, No. 9808/04, 2011 WL 1464145 (Sup. Ct. Nassau Cty. Mar.
a. CPLR § 901(a)(1). Numerosity.
a. CPLR § 901(a)(5). Superiority.
As shown above, CPLR § 901 establishes the numerosity, commonality, typicality, and adequacy of representation prerequisites that are also specified under Rule 23(a). Compare Fed. R. Civ. P. 23 (a), with CPLR § 901(a). However, unlike Rule 23(b)(1)-(3), CPLR § 901 neither categorizes nor distinguishes between various types of class actions. See generally Fed. R. Civ. P. 23 (a)-(b); CPLR §§ 901, 902; 3 Jack B. Weinstein, Harold L. Korn & Arthur R. Miller, New York Civil Practice: CPLR ¶¶ 901.00–909.07 (David L. Ferstendig 2d. ed. 2013).
a. No Actions to Recover a Statutory Penalty
Rule § 901. Prerequisites to a class action186
a. One or more members of a class may sue or be sued as representative parties on behalf of all if:
1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
North Carolina Rule 23(a) provides:195
If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued.