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Consumer Class Actions: WASHINGTON SUPERIOR COURT CIVIL RULES

Rule 23. Class Actions262

(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 of West Virginia Rule 23 with Federal Rule 23

Rule 23 of the West Virginia Rules of Civil Procedure, adopted on April 6, 1998, is essentially identical to Rule 23 of the Federal Rules of Civil Procedure, except for Fed. R. Civ. P. 23(f) and 23(g).263 State ex rel. Erie Fire Ins. Co. v. Madden, 515 S.E.2d 351 (W. Va. 1998). Prior to that date West Virginia used a variation of the 1938 Federal Rule 23. As a result, no decisions regarding class issues in West Virginia dealt explicitly with issues arising under 23(b)(3) (superiority, predominance) or 23(b)(1) and (2). Burks v.

Consumer Class Actions: 2. Case Law Interpreting Rule 23

Certification of a class under Rule 23 may only be granted when the party seeking certification has satisfied all four prerequisites of Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation—and one of the three subdivisions of Rule 23(b). Chemtall, Inc., 216 W. Va. at 453, 607 S.E.2d at 782. See also Rezulin, 214 W. Va. at 64, 585 S.E.2d at 64. The party who seeks to establish the propriety of a class action has the burden of proving that the pre-requisites of Rule 23 have been satisfied. Rezulin, 214 W. Va.

Consumer Class Actions: 3. Communications with Absent Class Members

West Virginia generally prohibits defendants from communicating with absent class members. Rule 23(c)(2) of the West Virginia Rules of Civil Procedure states that the “court shall direct members of the class to the best notice practicable under the circumstances . .

Consumer Class Actions: 4. Miscellaneous Comments

Since the adoption of amended Rule 23, few decisions have been handed down by the West Virginia Supreme Court of Appeals interpreting West Virginia’s class action rule. In State ex rel. Erie Fire Ins. Co. v. Madden, 204 W. Va. 606, 515 S.E.2d 351 (1998), on a writ of prohibition, the court refused to recognize the doctrine of juridical link under the specific facts of the case. Madden, 515 S.E.2d at 354–56. The doctrine of juridical link had never before been recognized in West Virginia.

Consumer Class Actions: WEST VIRGINIA RULES OF CIVIL PROCEDURE

Rule 23. Class actions.264

(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

In Wisconsin, class action procedure is governed by Wis. Stat. § 803.08, a rule that was substantially amended effective June 1, 2018, pursuant to a December 21, 2017, order of the Wisconsin Supreme Court.265 Before its amendment in 2018, Wis. Stat. § 803.08 was a relatively brief, one-sentence rule sometimes referred to as the “19th-century Field Code.” The old § 803.08’s language did not closely track Rule 23, but case law interpreting it adopted many federal class action concepts, including commonality, adequacy, and numerosity.

Consumer Class Actions: 3. Case Law Interpreting Particular Requirements for Class Action

a. Numerosity

In 2019, the Wisconsin Court of Appeals held that the numerosity requirement of Wis. Stat. § 803.08(1) was satisfied when there were 42 potential class members. Harwood, 2019 WI App 53 at ¶ 55.

In Browne, 69 Wis. 2d at 171, the court certified a class of approximately 150 school district employees. Similarly, the court in Goebel, 83 Wis. 2d at 683, certified a class of 369 borrowers.

Consumer Class Actions: 4. Tolling of Limitations During Pendency of a Class Action

Section 893.13(2) of the Wisconsin Statutes provides:

A law limiting the time for commencement of an action is tolled by the commencement of the action to enforce the cause of action to which the period of limitation applies. The law limiting the time for commencement of the action is tolled for the period from the commencement of the action until the final disposition of the action.

Consumer Class Actions: 5. Notice of Class Claims Against Government Entities

Lawsuits against a Wisconsin governmental body, including class actions, generally must be preceded by substantial compliance with Wisconsin’s Notice of Claims statute, Wis. Stat. § 893.80. But see Felder v. Casey, 487 U.S. 131 (1988) (involving application of § 893.80 to federal civil rights claims). Because such a Notice must present the identities and claims of all claimants, the Wisconsin Court of Appeals has held that a class action involving “unnamed claimants, is never possible against the government. . . .” Townsend v. Neenah Jt.

Consumer Class Actions: 6. Arbitration Clauses Prohibiting Class Claims

In Coady v. Cross Country Bank, Inc., 2007 WI App 26, ¶ 1, review denied, 2007 WI 114, the Wisconsin Court of Appeals held that a credit card agreement containing a mandatory arbitration clause that forbade class-wide arbitration was unconscionable. The bar against class-wide arbitration “contributed” to this conclusion. Id. ¶¶ 43, 47. But see AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 352 (2011) (holding that the Federal Arbitration Act preempts state rule that arbitration provision disallowing class-wide arbitration is unconscionable).

Consumer Class Actions: 8. Class Claims in Administrative Proceedings

According to a Wisconsin Attorney General’s opinion, “[t]he Wisconsin Open Housing Law permits, but does not require, the Department of Industry, Labor and Human Relations to receive and process class action complaints of housing discrimination.” 70 Wis. Op. Att’y Gen. 250–51 (1981). The opinion is based in part on the statutory definition of “discriminate” and “discrimination” as “to segregate, separate, exclude or treat any person or class of persons unequally . . . because of sex, race, color, . . .” as well as similar holdings under anti-discrimination laws in other states.

Consumer Class Actions: 9. Defendant Classes Under Declaratory Judgment Act

In Ewer, 2012 WI App 64, ¶¶ 48–50, the court held that the requirement under the Declaratory Judgments Act, Wis. Stat. § 806.04(11), that “all persons shall be made parties who have or claim any interest which would be affected by the declaration,” does not preclude certification of a defendant class.

Consumer Class Actions: 10. Unique Provision Regarding Refund of Or Damages Associated with a Tax

Wis. Stat. § 803.08 was amended, effective March 1, 2012, to prohibit any class action, whether against the state or any other party, if the relief sought includes the refund of or damages associated with a tax administered by the state. 2011 Wis. Act 68 § 51. The amended rule applied to any action filed on or after the effective date. Id. §  52. That provision was carried forward in the new Wis. Stat. § 803.08, in subsection (14).

Consumer Class Actions: 11. Communications with Absent Class Members

Wisconsin appellate courts have not specifically addressed the permissibility of and any limitations on communications by class counsel with absent class members either before or after certification. Particularly in the pre-certification context, putative class counsel who undertake to communicate with putative absent class members are clearly subject to pertinent rules of professional conduct regulating “Transactions with Persons Other than Clients” and “Information About Legal Services.” See Wisconsin SCR 20:4.1-20:4.4, 20:7.1-20:7.3.

Consumer Class Actions: 12. Conclusion

The revised Wisconsin class action rule, Wis. Stat. § 803.08, has filled holes in the prior rule and will continue leading to interpretations and additional case law that will assist judges and practitioners in matters involving class action procedure.

Consumer Class Actions: Introduction

Rule 23 of the Wyoming Rules of Civil Procedure is identical to Rule 23 of the Federal Rules of Civil Procedure.268 Because Wyoming’s procedural rules are patterned after the federal rules, Wyoming courts generally consider federal precedent on the rules to be persuasive authority. Kimbley v. City of Green River, 642 P.2d 443 (Wyo. 1982).

Consumer Class Actions: 2. Miscellaneous Comments

The Wyoming Supreme Court has held that small claims cannot be aggregated for the purpose of meeting the jurisdictional limit of the district courts. Mutual of Omaha Ins. Co. v. Blury-Losolla, 952 P.2d 1117 (Wyo. 1998). Prior to 2011, district courts in Wyoming had jurisdiction over claims of $7,000 or more. County courts had exclusive jurisdiction for claims less than $7,000. Following the federal precedent as set forth in Zahn v. International Paper Co., 414 U.S. 291, 94 S. Ct. 505, 38 L. Ed. 2d 511 (1973), and Snyder v. Harris, 394 U.S. 332, 89 S. Ct.

Consumer Class Actions: 3. Analysis

Wyoming’s current class action rule, W.R.C.P. 23, closely mirrors the federal rule. It was most recently revised in February 2017 to reflect the changes made to the Federal Rules of Civil Procedure. Specifically, the rule now outlines specific procedures for settlement, voluntary dismissal, or compromise, requirements for class counsel, and provisions regarding attorney’s fees and nontaxable costs.

Wyoming has no Supreme Court cases construing its rule. Only a couple of class action cases have been before the Court, and none have involved the rule or its procedural requirements.

Consumer Class Actions: WYOMING RULES OF CIVIL PROCEDURE

Rule 23. Class Actions269

(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;