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Consumer Class Actions: 2. Prerequisites and Requirements for Maintenance of a Class Action

Tennessee courts have held that class certification is a procedural privilege rather than a substantive right. See, e.g., Bennett v. Stutts, 521 S.W.2d 575, 577–78 (Tenn. 1975); Hamilton v. Gibson Cty. Util. Dist., 845 S.W.2d 218, 225 (Tenn. Ct. App. 1992); First Am. Nat’l Bank v. Hunter, 581 S.W.2d 655, 659 (Tenn. Ct. App. 1978); Crouch v. Bridge Terminal Transp., Inc, No. M2001-00789-COA-R3-CV, 2002 Tenn. App. LEXIS 304 (Tenn. Ct. App. Apr. 30, 2002).

Consumer Class Actions: 3. Standard of Review of Class Certification Orders

Class certification decisions are reviewed for abuse of discretion to determine whether the lower court’s decision has a basis in fact and is not arbitrary, illogical, or unconscionable. See Meighan, 924 S.W.2d at 637 (citing Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988)); Warren v. Scott, 845 S.W.2d at 783 (Tenn. Ct. App. Sept. 4, 1992); Hamilton, 845 S.W.2d at 225; Bohlinger v. Am. Credit Co., 594 S.W.2d at 712 (Tenn. Ct. App. Oct. 16, 1979).

Consumer Class Actions: 4. Cross-Jurisdictional and Intra-Jurisdictional Tolling

Tennessee does not recognize the doctrine of cross-jurisdictional tolling. See Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805 (Tenn. 2000), limited perm. app. granted (Tenn. 1999). In Maestas, the Tennessee Supreme Court held that Tennessee “simply has no interest, except perhaps out of comity, in furthering the efficiency and economy of the class action procedures of another jurisdiction, whether those of the federal courts or those of another state.” Maestas, 33 S.W.3d at 808 (quoting Wade v.

Consumer Class Actions: 5. Attorneys’ Fees

The Tennessee Court of Appeals has found that under 42 U.S.C. § 1988, which requires the plaintiff to be the prevailing party in order to receive an award of attorneys’ fees, a reasonable award of fees is appropriate where “actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” C.S.C. v. Knox Cty. Bd. of Educ., No. E2006-01155-COA-R3-CV, 2007 Tenn. App. LEXIS 337, at *17 (Tenn. Ct. App. May 25, 2007) (quoting Farrar v. Hobby, 506 U.S.

Consumer Class Actions: 7. Communications with Absent Class Members

a. Communications or Solicitations by Plaintiffs’ Counsel with Putative or Absent Class Members

Rules 7.2 and 7.3 of the Tennessee Supreme Court’s Rules of Professional Conduct (TRPC) govern attorney advertising and solicitation of potential clients.

TRPC 7.3 states:

(a) A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a potential client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

Consumer Class Actions: TENNESSEE RULES OF CIVIL PROCEDURE

Rule 23.01 Prerequisites to a Class Action.242 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

Texas Rule 42 is identical in most respects to Federal Rule 23.250 Accordingly, federal court decisions interpreting Rule 23 are “persuasive authority.” Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 403 n.4 (Tex. 2000); General Motors Corp. v. Bloyed, 916 S.W.2d 949, 954 n.1 (Tex. 1996). However, federal court decisions are not binding authority. See Intratex Gas Co. v. Beeson, 22 S.W.3d 398, 404 n.5 (Tex. 2000) (expressly noting that its holding conflicts with holding of Fifth Circuit, Mullen v.

Consumer Class Actions: TEXAS RULES OF CIVIL PROCEDURE

Rule 42. Class Actions252

(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: 2. Case Law Interpreting Rule 23

a. Rule 23 in General

The Utah Supreme Court has described the rule permitting the maintenance of class actions as “one of the most far-reaching and important changes in legal procedure in many a decade. Its impact on the enforcement of consumer rights, antitrust claims, securities claims and civil rights actions, to name but a few areas, has been monumental.” Richardson v. Ariz. Fuels Corp., 614 P.2d 636, 640 (Utah 1980).

Consumer Class Actions: 3. Miscellaneous

a. Distinction Between Class Actions and Derivative Actions

Derivative actions are governed by Rule 23A of the Utah Rules of Civil Procedure. Explaining the distinction between class actions and derivative actions, the Utah Supreme Court has stated that each type of action rests on fundamentally different substantive principles of law. Richardson, 614 P.2d at 638. On one hand,

Consumer Class Actions: UTAH RULES OF CIVIL PROCEDURE

Rule 23. Class Actions258

(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: 2. Case Law Interpreting Rule 23

In Vermont, “class actions are intended to be of limited and special application, not to be casually resorted to or authorized. This is because, improperly used, they can seriously compromise many due process rights of those involved.” George v. Town of Calais, 135 Vt. 244, 244, 373 A.2d 553, 554 (1977). See also Salatino v.

Consumer Class Actions: 4. Communications With Absent Class Members

There is only one trial court opinion in Vermont addressing the issue of communications with absent class members. See Duggan v. Bisson, Docket No. 114-5-98 Cacv, 2003 WL 25826926 (Caledonia Co. Sup. Ct., May 14, 2003) (Pearson, J.). In that case, the trial court was required to determine whether the defendant could depose the unnamed class members. The court held that the unnamed class members were not parties to the litigation for discovery purposes, but they were represented by class counsel once the class action was certified.

Consumer Class Actions: VERMONT RULES OF CIVIL PROCEDURE

Rule 23. Class Actions

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued in an action in a superior court 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: VIRGINIA

The Rules of the Supreme Court of Virginia do not offer an analog to Federal Rule of Civil Procedure 23.260 As a result, “Virginia jurisprudence does not recognize class actions.” Casey v. Merck & Co., 722 S.E.2d 842, 846 (Va. 2012).

Consumer Class Actions: 1. Washington’s Superior Court Civil Rule 23

Long before adoption of the current Civil Rules, the Washington code allowed class actions.261 See RCW §  4.08.070, repealed by 1985 Wash. Laws, ch. 68, § 1. See Wm. D. Perkins & Co. v. Diking Dist. No. 3, 162 Wash. 227, 228, 298 P. 462 (1931) (discussing code provision for actions in representative capacity). Washington adopted its current Civil Rule 23 in 1967 and modeled it on the recently adopted Federal Rule of Civil Procedure 23.

Consumer Class Actions: 2. Comparison with Rule 23 of the Federal Rules of Civil Procedure

Until amendments in 2006 added a provision concerning disposition of residual funds (discussed below), Civil Rule 23 was “an exact counterpart” of the pre-1998 Rule 23 of the Federal Rules of Civil Procedure. Johnson v. Moore, 80 Wash. 2d 531, 532, 496 P.2d 334, 335 (1972); see also Lacey Nursing Ctr., Inc. v. Washington Dep’t of Revenue, 128 Wash. 2d 40, 46–47, 905 P.2d 338, 341 (1995) (CR 23 is “identical” to Fed. R. Civ. P. 23). As a result, Washington courts determining whether to certify a class action frequently seek guidance from cases applying Fed. R. Civ. P.

Consumer Class Actions: 3. Case Law Interpreting Civil Rule 23

“[T]he goals underlying a class action” include “efficiency, deterrence, and access to justice.” Moore v. Wash. Health Care Auth., 181 Wash. 2d 299, 305, 332 P.3d 461, 464 (2014). A court should certify a proposed class only if it satisfies all four requirements of CR 23(a) and one of the subsections of CR 23(b). Washington Educ. Ass’n v. Shelton Sch. Dist., 93 Wash. 2d 783, 789, 613 P.2d 769, 773 (1980). In addition, the named representative of the class must have standing, Johnston v. Beneficial Management Corp., 85 Wash.

Consumer Class Actions: 4. Communications with Absent Class Members

Washington appellate courts have not articulated any clear standards to guide trial courts in deciding whether to limit communications with absent class members. The Washington Supreme Court last considered the propriety of communicating with absent class members in two cases decided the same day in 1982, both involving communications by a plaintiff (or plaintiff’s counsel) with absent class members. In Darling v. Champion Home Builders Co., 96 Wash.

Consumer Class Actions: 5. Miscellaneous

CR 23 does not address the form or content of a class definition. The Washington Supreme Court has made clear, however, that a class definition must be framed so that disposition of the named plaintiff’s claims can fairly bind a cohesive class. In Mader v. Health Care Authority, 149 Wash. 2d 458, 468–69, 70 P.3d 931, 936 (2003), the court held that a class definition was a “manifest abuse of discretion” where, as defined, the class encompassed only a fraction of the people who would be entitled to relief under “the essence” of plaintiffs’ theory.