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Consumer Class Actions: 4. Contacting Absent Class Members

There is no significant North Carolina case law discussing the ground rules for communications by attorneys with absent class members. However an ethics opinion from the North Carolina State Bar has generally outlined what type of communication is permissible, broken down by three types of communications: (1) notices from the court; (2) informal communications by the litigants’ counsel with prospective class members on topics prior to class certification; and (3) communications by plaintiff’s counsel that ask a prospective class member if he or she wants to hire the attorney’s firm.

Consumer Class Actions: 5. Other Requirements

The court may not apply North Carolina law to a nationwide class of drug purchasers claiming that manufacturers artificially inflated the price of the drug without analyzing the law of the other jurisdictions to determine whether it conflicts with North Carolina law. Stetser v. TAP Pharmaceutical Prod., Inc., 165 N.C. App. 1, 598 S.E.2d 570 (N.C. App. 2004).

Consumer Class Actions: NORTH CAROLINA RULES OF CIVIL PROCEDURE

Rule 23. Class actions196

(a) Representation. 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.

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

Rule 23 of the North Dakota Rules of Civil Procedure is based on the Model Class Action Rule as drafted by the National Conference of Commissioners on Uniform State Laws.197 Before the Model Rule became effective, North Dakota Rule 23 was identical to Rule 23 of the Federal Rules of Civil Procedure. Despite the modification, the underlying judicial philosophy of Rule 23 remains the same. Peterson v. Dougherty Dawkins, Inc., 1998 ND 159, ¶ 9, 583 N.W.2d 626; Rogelstad v.

Consumer Class Actions: 2. Case law Interpreting North Dakota Rule of Civil Procedure 23

There are four requirements that must be met under North Dakota Rule of Civil Procedure 23.

  • 1. Numerosity (23(a)(1));
  • 2. Commonality (23(a)(2));
  • 3. Fair and Efficient Adjudication of the Controversy (23(b)(2)(B)); and
  • 4. Fair and Adequate Representation by the Representative Parties (23(b)(2)(C)).

Howe, 2003 ND 12, ¶ 8, 656 N.W.2d 285; Rose, 2002 ND 148, ¶ 7, 651 N.W.2d 683.

Consumer Class Actions: 3. Order Certifying or Denying the Class—23(d)

The order certifying or refusing to certify a class action must state the reasons for the court’s ruling and the court’s findings as to the various criteria. N.D. R. Civ. P. 23(c) & (d)(2); Holloway, 294 N.W.2d at 906; North Dakota Human Rights Coalition, 2005 ND 98, ¶ 15, 697 N.W.2d 1. The order of certification must describe the class, describe any subclasses, state the relief sought, and provide whether any particular issues are included. Id. An order certifying or refusing to certify an action as a class action is appealable. N.D. R. Civ. P. 23(d)(3).

Consumer Class Actions: 4. Amendment of Certification Order—23(e)

The court may amend the certification order at any time before entry of judgment on the merits. N.D. R. Civ. P. 23(e)(1). The court has several options for amendment under the rule, including the authority to make any other appropriate change in the order. N.D. R. Civ. P. 23(e)(1)(E). The rule permits the court to amend a certification order by decertifying a previously certified action under the proper circumstances. Ongstad v. Piper Jaffray & Co., 2008 ND 167, ¶ 19, 755 N.W.2d 877.

Consumer Class Actions: 5. Notice of Action—23(g)

Rule 23(g) directs that, after certification, the court shall order notification of the class members. The notification order is required to include the manner and form of notification, taking into consideration the interests of the class, the relief sought, the costs of notification and the possible prejudice to class members who do not receive notice. Holloway, 294 N.W.2d at 907.

Consumer Class Actions: 6 Discovery by or Against Class Members—23(j)

Discovery by or against representative parties or those appearing is governed by the rules dealing with discovery in a civil action. N.D. R. Civ. P. 23(j)(3). A court order is required to conduct discovery against a class member who is not a representative party or who has not appeared. N.D. R. Civ. P. 23(j)(1).

Consumer Class Actions: 7. Dismissal or Compromise—23(l)

Unless certification has been denied, a district court may not dismiss any class action without following the procedural requirements of Rule 23(l). A class action may only be “voluntarily dismissed, involuntarily dismissed without adjudication on the merits, or compromised after a hearing and court approval.” Glasow, 2005 ND 94, ¶¶ 5–7, 696 N.W.2d 531. The court has a duty to investigate the provisions of a suggested settlement agreement, including exploring the manner in which attorneys’ fees are to be paid and the dollar amount for such services.

Consumer Class Actions: 8. Attorneys’ Fees—23(p)

Rule 23(p) states that attorneys’ fees for representing a class are subject to control of the court. The district court is considered an expert in determining an award of attorneys’ fees, and its decision is reviewed on a clear abuse of discretion standard. Ritter IV, 2007 ND 163, ¶ 28, 740 N.W.2d 67. The court must act as a fiduciary for the beneficiaries of a common fund and must consider any claim for attorneys’ fees from the common fund as adverse to the interests of the class. Id. ¶ 35.

Consumer Class Actions: 9. Tolling of the Statute of Limitations—23(r)

The rule specifies that the statute of limitations is tolled for all class members upon the commencement of an action asserting a class action, pending a determination of class action status. N.D. R. Civ. P. 23(r). This portion of the rule codifies the case of American Pipe and Constr. Co. v. Utah, 414 U.S. 538 (1974). N.D. R. Civ. P. 23(r) explanatory note.

Consumer Class Actions: 10. Due Process Protection

North Dakota Rule 23 provides more due process protections than the federal rule. Ritter II, 2001 ND 56, ¶ 23, 623 N.W.2d 424. North Dakota Rule 23 permits mandatory class members to participate in the action under Rule 23(i)(1)(B)(iii). Id. Non-representative class members have the right to appear and be represented by separate counsel under 23(i)(2). Id. There is no corresponding protection under the federal rule. Ritter II, 2001 ND 56, ¶ 23, 623 N.W.2d 424.

Consumer Class Actions: NORTH DAKOTA RULES OF CIVIL PROCEDURE

Rule 23. Class Actions198

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

(1) the class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable; and

(2) a question of law or fact is common to the class.

Consumer Class Actions: Introduction

The seminal case on class certification in the State of Ohio is Hamilton v. Ohio Savings Bank, 82 Ohio St.3d 67 (1998).200 Hamilton redefined the standard for Ohio courts to follow in reviewing the certification question and broadened the scope of class action treatment by encouraging the use of the class action device in the consumer context. 82 Ohio St.3d at 80.

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

“Fed. R. Civ. P. 23(a), (b), and (c) are identical to their counterparts in the Ohio rule.” Wilson, 103 Ohio St.3d at 542 n.4. As such, it is well settled that “federal authority is an appropriate aid to interpretation of the Ohio rule.” Id. See also Hamilton, 82 Ohio St.3d at 82 (quoting Marks v. C.P. Chemical Co., Inc., 31 Ohio St.3d 200, 201 (1987)); Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St.3d 380, 382, 2002-Ohio-892.

Consumer Class Actions: 2. Standard of Review

A trial judge has broad discretion in determining whether or not a case may be maintained as a class action. See Marks, 31 Ohio St.3d at 201. However, that discretion “is not unlimited, and indeed is bounded by and must be exercised within the framework of Civ. R. 23. The trial court is required to carefully apply the class action requirements and conduct a rigorous analysis into whether the prerequisites of Civ. R. 23 have been satisfied.” Hamilton, 82 Ohio St.3d at 70.

Consumer Class Actions: 3. Requirements of Civil Rule 23

In Warner, 36 Ohio St.3d 91, the Ohio Supreme Court held that a trial judge must make seven affirmative findings before certifying a case as a class action. Two of the prerequisites are implicitly required by Civ. R. 23; the other five requirements are specifically enumerated in the rule.

a. Implied Requirements

Consumer Class Actions: 4. Notice to Class Members

Ohio follows the standard for class notice adopted by the United States Supreme Court in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). Specifically, individual notice must be given to all class members “who are identifiable through reasonable effort.” Id. at 175; Gross v. The Standard Oil Co. 45 Ohio Misc. 45, 49–50, (Ohio Ct. Common Pleas 1975).

Consumer Class Actions: OHIO RULES OF CIVIL PROCEDURE

Rule 23. Class Actions201

(A) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members 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,