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Consumer Class Actions: 2. Summary of Case Law Interpreting Okla. Stat. tit. 12, § 2023

Plaintiffs have the burden of establishing each of the four requirements of subsection (A) and one of the requirements of subsection (B). Sias v. Edge Communications, Inc., 2000 OK CIV APP 72, 8 P.3d 182, 185; First Life Assurance Co. v. Mountain, 1993 OK CIV APP 20, 848 P.2d 1177. For the purpose of determining whether class certification is appropriate, courts “take as true all uncontroverted allegations in the instruments of record and the undenied statements of counsel in the briefs.” Harvell v.

Consumer Class Actions: OKLAHOMA CLASS ACTION STATUTES

12 Okl. St. Ann. § 2023 Class Actions203

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. Oregon Rule of Civil Procedure 32—A Brief History

Oregon has allowed representative claims for 140 years.204 Trustees of the M.E. Protestant Church v. Adams, 4 Or. 76, 88 (1870) (holding that “where the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole”). Oregon courts were historically reluctant to grant class certification, agreeing with other courts that “class actions should be closely scrutinized and should be permitted only in clear cases.” Lonsford v. Bailey, 200 Or.

Consumer Class Actions: 2. Comparison with Federal Civil Rule 23

Oregon’s class action rule is more restrictive than most states’ rules and was designed to address perceived class action abuses. As originally proposed, Oregon’s class action statute was an exact duplicate of Federal Rule 23. Bernard, 275 Or. at 150–51, 550 P.2d at 1208; Pearson v. Philip Morris, Inc., 208 Or. App. 501, 504, 145 P.3d 299–300 (2006) (Pearson II), rev’d on other grounds, 257 Or. App. 106 (2013) (Pearson III), rev. granted 354 Or. 699 (2014).

Consumer Class Actions: 3. Reliance on Federal Case Law

Because there are relatively few published decisions addressing class certification in Oregon—roughly two dozen—parties often rely on analogous federal case law in support of their respective positions. Because the 1978 adoption of ORCP 32 was based on Federal Rule 23 as it then existed, pre-1978 federal court decisions interpreting Federal Rule 23 in particular “inform” Oregon courts as to the proper interpretation of ORCP 32. Shea v. Chicago Pneumatic Tool Co., 164 Or. App. 198, 206, 990 P.2d 912, 916 (1999).

Consumer Class Actions: 4. Case Law Interpreting ORCP 32

A class action may be certified if the class representatives establish all requirements of ORCP 32A, show that pursuant to ORCP 32B a class action is superior to other available methods for the fair and efficient adjudication of the controversy, and (in damages actions) satisfy the notice requirements of ORCP 32H. See ORCP 32A, 32B, 32H. The eight factors “pertinent” to whether a class action is superior are contained in ORCP 32B and include all the requirements and factors listed in Federal Rule 23. See ORCP 32B.

Consumer Class Actions: 5. Discovery in Class Actions

No published Oregon decision addresses the scope of discovery permitted under ORCP 32, although the court in Bernard noted that the trial court made its certification decision based on “affidavits, depositions and documentary evidence.” Bernard, 275 Or. at 147, 550 P.2d 1203 (1976). Discovery from class members is allowed, as “there is nothing improper about” obtaining discovery from potential class members if relevant to certification. Dale v. Sitel, § D(2)(a), supra, at 2 (refusing to strike class members’ declarations obtained by defendants).

Consumer Class Actions: 6. Appeals Of Class Certification Orders

Class certification decisions are not immediately appealable in Oregon. Pearson II, 208 Or. App. at 503, 145 P.3d at 298–99. There is no state law equivalent of Federal Rule 23(f). Id. at 504 & n.2, 145 P.3d at 299 n.2. Oregon’s class-action appeal statute, ORS 19.225, was passed in 1973 and modeled on 28 U.S.C. §  1292(b). Id. at 504, 145 P.3d at 299. This means that Oregon courts interpreting ORS 19.225 rely on federal appellate interpretations of Section 1292(b) that existed before 1973 to determine whether an interlocutory appeal should be permitted.

Consumer Class Actions: 7. Communications with Class Members

No Oregon state court decision addresses limitations or guidance on communications with absent class members. At least one federal district court case in Oregon cites the general federal standards and case law—suggesting the Court has the authority to limit such contact—and there is little reason to think the state courts would deviate from the norm. See Cedano v. Thrifty Payless, Inc., 2011 WL 8609402, *12 (D. Or. 2011) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S. Ct. 2193, 68 L. Ed. 2d 693 (1981)).

Consumer Class Actions: OREGON RULES OF CIVIL PROCEDURE

Rule 32. Class Actions206

A. Requirement for 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: PENNSYLVANIA RULES OF CIVIL PROCEDURE

Rule 1701. Definitions. Conformity.208

(a) As used in this chapter

“Class action” means any action brought by or against parties as representatives of a class until the court by order refuses to certify it as such or revokes a prior certification under these rules.

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

Rule 23 of the Rhode Island Superior Court Rules of Civil Procedure is nearly identical to Rule 23 of the Federal Rules of Civil Procedure.226 This was achieved through substantial revisions of the rule made in a 1991 amendment, by a Supreme Court order, dated and effective April 17, 1991. In 1995, another amendment made stylistic changes in paragraph (c)(2), by Superior Court order dated June 12, 1995, and approved by the Supreme Court on June 13, 1995, effective September 5, 1995.

Consumer Class Actions: 2. Case Law Interpreting Rule 23

Rule 23 requires that the class proponent make a timely motion to certify the suit as a class action and present evidence from which the court can conclude that class certification requirements are met. Cabana v. Littler, 612 A.2d 678, 686 (R.I. 1992); Cazabat v. Metropolitan Prop. & Cas. Ins. Co., No. KC99-544, 2001 WL 267762 (R.I. Super. Ct. Feb. 23, 2001). The court must find that a class action will fairly ensure the adequate representation of alleged parties as a condition precedent to the maintenance of a class action. Cabana, 612 A.2d at 685.

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

Rule 23 of the South Carolina Rules of Civil Procedure, while derived from F.R.C.P. 23, differs significantly from its federal counterpart.228 The South Carolina rule incorporates the four prerequisites to class certification found in F.R.C.P. 23(a) and adds a fifth prerequisite, requiring that the amount in controversy for each member of the class be at least $100.00, except where the relief primarily sought is injunctive or declaratory in nature.

Consumer Class Actions: 2. Case Law Interpreting Rule 23

a. Relationship between State and Federal Rule 23

There are relatively few appellate decisions construing Rule 23 of the South Carolina Rules of Civil Procedure, adopted in 1985. While there are many substantive differences between the South Carolina rule and the federal rule, the courts have nevertheless relied upon federal cases for guidance, since the state version of Rule 23 was derived from the federal rule. See Gardner v. Newsome Chevrolet-Buick, Inc., 304 S.C. 328, 331, 404 S.E.2d 200, 201–02 (S.C. 1991).

Consumer Class Actions: SOUTH CAROLINA RULES OF CIVIL PROCEDURE

Rule 23. Class Actions229

(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 the court finds

(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. Differences Between S.D. Codified Laws § 15-6-23 and Fed. R. Civ. P. 23

South Dakota’s class action statute mimics the pre-1998 federal rule exactly with but one exception: the South Dakota rule adds a fifth subsection to 23(a), which reads as follows:230

One or more members of a class may sue or be sued as representative parties on behalf of all only if . . . and (5) the suit is not against this state for the recovery of a tax imposed by Chapter 10-39, 10-39A, 10-40, 10-41, 10-43, 10-44, 10-45, 10-46, 10-46A, 10-46B, or 10-52

Consumer Class Actions: 2. Summary of Case Law Interpreting S.D. Codified Laws § 15-6-23

a. Rule 23(a) Requirements

i. Numerosity. Shangreaux v. Westby, 281 N.W.2d 590 (S.D. 1979): Plaintiff’s request for certification of class including all AFDC recipients residing in South Dakota was “far too encompassing and overboard.” Id. at 593. “SDCL 15-6-23(a) requires that there be at least some evidence of the number of class members . . .” Id. Consequently, plaintiff’s request for certification of a class failed for not meeting the prerequisites of S.D. Codified Laws § 15-6-23. Id.

Consumer Class Actions: SOUTH DAKOTA CLASS ACTION STATUTES

S.D.C.L. § 15-6-23(a). Prerequisites to a class action.233

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 first five sections of Rule 23 of the Tennessee Rules of Civil Procedure, Tenn. R. Civ. P. 23.01–23.05, substantially mirror Fed. R. Civ. P. 23(a)–(e).240 Because Tennessee Rule 23 closely follows Federal Rule 23, Tennessee courts have found federal court opinions persuasive in this area. See, e.g., Wofford v. M.J. Edwards & Sons Funeral Home Inc., No. W2015-02377-COA-R3-CV, 2017 WL 1191298, at *2–7 (Tenn. Ct. App. Mar. 29, 2017); Carson v. DaimlerChrysler Corp., No. W2001-03088-COA-R3-CV, 2003 Tenn. App.