§23.7SIGNIFICANT AUTHORITIES
This section examines important state and representative federal authority on issues relating to class actions.
(1)General discussion
The most significant decisions from the Washington Supreme Court involving class suits are Brown v. Brown, 6 Wn.App. 249,492 P.2d 581 (1971) (thorough discussion of basic class action principles); Johnson v. Moore, 80 Wn.2d 531, 496 P.2d 334 (1972) (thorough discussion of basic class action principles); Jo hnston v. Beneficial Mgmt. Corp. of Am. 85 Wn.2d 637, 538 P.2d 510 (1975) (class certification inappropriate because the court's decision on the merits resulted in loss of claims and standing by the class representative); Sitton v. State Farm Mut. Auto. Ins. Co., 116 Wn.App. 245, 63 P.3d 198 (2003) (upholding grant of certification under CR23(b)(3) but vacating the certification of classes under CR 23(b)(1) and CR 23(b)(2) and discussing important differences); and Schnall v. AT&T Wireless Servs, Inc., 171 Wn.2d 260, 271,259P.3d129 (2011) (discussing in detail and providing important guidance on the issue of predominance under CR 23(b)(3)). Together, these cases offer both a general discussion of basic class action principles and Washington court commentary on aspects of the rule that have generated the most controversy in federal courts (issues relating to certification of CR 23(b)(3) classes).
Federal precedents under Fed. R. Civ. P. 23 are so numerous as to defy selection of a handful of "key cases." There are many federal decisions on virtually every side of every basic issue presented by the rule. However, key cases that present the best overall picture of possibilities, pitfalls, and complexities involved in class action litigation are (1) Eisen, (2) Antibiotic Antitrust Actions, (3) Amchem, and (4) Castano, cited and discussed below. For a detailed and scholarly analysis of numerous issues with respect to class actions under rule 23, see In re GMC Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768 (3d Cir.), cert, denied sub nom. Gen. Motors Corp. v. French, 516 U.S. 824 (1995).
Eisen v. Carlisle & Jacquelin was a class action suit under the antitrust and securities laws for damages on behalf of the class of those who had purchased small amounts of stock from odd-lot brokers on the New York Stock Exchange. Eisen v. Carlisle & Jacquelin resulted in not one landmark decision but four: Eisen I, 370 F.2d 119 (2d Cir. 1966), cert, denied, 386 U.S. 1035 (1967); Eisen II, 391 F.2d 555 (2d Cir. 1968); Eisen III, 479 F.2d 1005 (2d Cir. 1973), vacated, All U.S. 156,94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974); and Eisen IV, All U.S. 156, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974). All of these decisions, as well as the trial court opinions that led to appellate review in each instance, are discussed in 3 Herbert B. Newberg & Alba Conte, Newberg on Class Actions §8.3 (4th ed. 2002 & Supp. 2013).
| Comment: | Although the Eisen case was in many respects more complicated than most class actions that are likely to be pursued under the Washington rule, the struggles of various courts at all levels of the federal system to cope with the most difficult problems presented by modern class actions make fascinating and informative reading for any lawyer seriously interested in becoming involved in a class action of any significant complexity. |
In re Antibiotic Antitrust Actions, 333 F. Supp. 267 (S.D.N. Y. 1971), is an early case presenting a classic example of application of the class action device to litigation involving numerous treble-damage antitrust actions consolidated for joint proceedings by the Judicial Panel for Multidistrict Litigation. This litigation was the forerunner of region wide and nationwide consolidated antitrust cases that have led since 1967 to the largest single body of federal decisions interpreting rule 23(b)(3). The litigation is perhaps most interesting with respect to the innovative procedural devices that ultimately were employed to accomplish class notice and distribution of massive settlement funds. See Thomas C. Bartsh et al., Operation Money Back in A Class Action Suit That Worked Ch. 2 (1978). For a discussion of multidistrict class actions generally, see 17 James W. Moore, Moore's Federal Practice Ch. 112 (3d ed. 2013).
The United State Supreme Court's decision in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997), on the other hand, is instructive with respect to the limits of application of rule 23(b)(3) and the type of proposed class actions that have caused a great deal of skepticism among courts as to the potential abuses of the class action device. See also Ortiz v. Fibreboard Corp., 527 U.S. 815,119 S. Ct. 2295, 144 L. Ed. 2d 715 (1999); In re Hotel Tel. Charges, 500 F.2d 86 (9th Cir. 1974).
Finally, Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996), is an important example of massive multidistrict litigation of the type that began with the antibiotic antitrust actions. As reflected by the Castano decision, the effect of possible individual state law issues on the predominance and superiority requirements of rule 23(b)(3) and the importance of trial management considerations to the class certification inquiry have increasingly become central issues in such multistate, mass tort cases. See id. at 746 n.23. For an excellent and thorough compendium of early class action opinions relating to the various requirements of rule 23, see In re Sugar Industries Antitrust Litigation, 1977-1 CCH Trade Cas. ¶161,373 (N.D. Cal. 1976).
The most thorough and useful general discussions of class action principles and cases are found in 5 James W. Moore, Moore's Federal Practice Ch. 23 (3d ed. 2013); 7A, 7AA& 7B Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure (3d ed. 2005 & Supp. 2013); and Herbert B. Newberg & Alba Conte, Newberg on Class Actions (4th ed. 2002 & Supp. 2012).
(2)Key authorities on specific issues
(a)Overall structure of rule—compliance with specific requirements as prerequisites to certification
Class actions must strictly conform to the requirements of CR 23. Pickett v. Holland Am. Line-Westours, Inc., 101 Wn.App. 901, 915, 6P.3d63 (2000) (citing Lacey Nursing Ctr, Inc. v. Dep't of Revenue, 128 Wn.2d 40, 47, 905P.2d338 (1995)), rev'd on other grounds, 145 Wn.2d 178, 35P.3d351, cert, denied, 536 U.S. 941 (2002); DeFunis v. Odegaard, 84 Wn.2d 617, 529P.2d438 (1974).
(b)Hearing on certification
Class action determination mustbe made as soon as practicable after commencement of a proposed class action under CR 23(c)(1). DeFunis, 84 Wn.2d 617; Dep't of Ecology v. Pacesetter Constr. Co., 89 Wn.2d 203, 571P.2d196 (1977). The calculus as to what constitutes "as soon as practicable" may shift in light of more recent United States Supreme Court cases that require the party seeking certification to be prepared to prove the elements of rule 23 with documentary support before a court undertaking a "rigorous analysis." See Wal-Mart Stores, Inc. v. Dukes,___U.S.___, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374 (2011); Comcast Corp. v. Behrend,___U.S.___, 133 S. Ct. 1426, 185 L. Ed. 2d 515, 521 (2013).
Filing a class action tolls the statute of limitations as to the claims of potential class members. Pickett, 101 Wn.App. at 913 (citing Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 113(191 A));Minnesotav. U.S. Steel Corp., 44 F.R.D. 559 (D.Minn. 1968).
Class action certification does not require a minihearing or trial on the merits of the action. Eisen IV, All U.S. 156. In ruling on a class action motion, a court must assume that the substantive allegations of the complaint are true. Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975).
Formerly, it was thought that extensive class action discovery was not essential prior to the hearing on certification if an adequate record on crucial issues for purpose of a decision on class certification was available through affidavits and pleadings. However, rulings issued by the United States Supreme Court now call that understanding of rule 23 into question, because the rigorous analysis a court must pursue to determine whether the class certification prerequisites have been met may require significant, merit-like discovery. See Wal-Mart, 131S. Ct. at 2551 (specifying that it "may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis," that the prerequisites for class certification are met) (citations and internal quotation marks omitted); Comcast, 185 L. Ed. 2d at 521 (emphasizing that even if the required "rigorous analysis" requires investigation into the merits of the claim, the analysis must nevertheless be undertaken prior to certification).
"Although a motion for class certification is decidedly not a time for adjudication of the merits of plaintiffs' claim, the Court may 'probe behind the pleadings before coming to rest on the certification question.'" Donaldson v. Microsoft Corp., 205 F.R.D. 558, 566 (W.D. Wash. 2001) (quoting Gen. Tel. Co. ofSw. v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982)). Courts may go beyond the pleadings and examine the parties' evidence to the extent necessary to determine whether the requirements of CR 23 have been met. Miller v. Farmer Bros., 115 Wn.App. 815,820,64 P.3d 49 (2003); see also LaCasse v. Wash. Mut., Inc., 198 F.Supp.2d 1255, 1260-61 (W.D. Wash. 2002) (court is required to engage in a rigorous analysis that probes behind the pleadings to determine whether class certification is appropriate); Schwendeman v. USAA Cas. Ins. Co., 116 Wn.App. 9, 26 n.44, 65 P.3d 1 (2003) ("There is a significant difference between considering all the evidence in the record, including conflicting expert...
