§23.6 Analysis

• Jurisdiction: Washington

§23.6ANALYSIS

This section examines in detail the prerequisites for maintaining specific types of class action lawsuits.

(1)Prerequisites to certification of any class—CR 23(a)

For a class to be certified under any of the three main subsections of CR 23(b), the requirements of CR 23(a) first must be met. These requirements include the following: (1) the class is so numerous that joinder of all members is impracticable ("numerosity"); (2) there exist questions of law or fact common to the class ("common questions"); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class ("typicality"); and (4) the representative parties will fairly and adequately protect the interests of the class ("adequacy of representation").

(a)Numerosity

CR 23(a) requires that, to be certified, a class must be so numerous that joinder of all members is impracticable. Mound Hardware v. City of Spokane, 88 Wn.App. 1030, No. 16487-0-III, 1997 WL 731947 (Nov. 25, 1997) (affirming denial of class certification on the ground that plaintiffs failed to identify the members of the putative class or show that joinder would be impracticable) (unpublished), review denied, 135 Wn.2d 1003 (1998). Although there are no Washington decisions that discuss how large a class must be to meet the numerosity requirement, the classes certified in Washington cases have all consisted of substantial numbers of class members. See, e.g., Pickett v. Holland Am. Line-Westours, Inc., 101 Wn.App. 901, 908, 6 P.3d 63, 66 (2000) (nationwide class action with "approximately 750,000 potential class members"), rev'd on other grounds, 145 Wn.2d 178, 35 P.3d 351 (2001), cert, denied, 536 U.S. 941 (2002); Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975) (high school girls in the Wishkay Valley School District qualified to play football); Johnson v. Moore, 80 Wn.2d 531, 496P.2d334 (1972) (prisoners held or to be held in Seattle city jail on suspicion); Bore v. Kinnear, 79 Wn.2d 755, 489 P.2d 898 (1971) (King County real property taxpayers who had suffered from discriminatory assessment practice);Brown v. Brown, 6 Wn.App. 249,492 P.2d 581 (1971) (Tacoma area utility users who had suffered or would suffer utility cutoffs).

In practice, class certification is rarely denied on the basis of lack of numerosity, and classes have been certified consisting of fewer than 20 members. Senter v. Gen. Motors Corp., 532 F.2d 511 (6th Cir.), cert, denied, 429 U.S. 870 (1976); Manning v. Princeton Consumer Discount Co., 390 F. Supp. 320 (E.D. Pa. 1975), aff'd, 533 F.2d 102 (3d Cir.), cert, denied, 429 U.S. 933 (1976). But see Mound Hardware, 88 Wn.App. 1030, 1997 WL 731947. Classes with as many as one million members have also been certified. Zachary v. Chase Manhattan Bank, N.A., 52 F.R.D. 532 (S.D.N.Y. 1971). But see Susquehanna Twp. v. H & M, Inc., 98 F.R.D. 658 (M.D. Pa. 1983). If all the other prerequisites to a class action are satisfied, courts are reluctant to deny certification on the basis of lack of numerosity alone because a class action proceeding with one or a small number of class representatives almost always has practical and procedural advantages over a comparable action that would involve all members as individual parties. In re Folding Carton Antitrust Litig, 75 F.R.D. 727 (N.D. 111. 1977); Phila. Elec. Co. v. Anaconda Am. Brass Co., 43 F.R.D. 452 (E.D. Pa. 1968). Moreover, with regard to class actions under CR 23(b)(1) and (b)(2) that do not involve individual damage claims, it is not likely to be significantly more difficult to conduct the action as a class action than it would be to conduct it on behalf of the named parties alone.

At least one court has held that the constant expansion and contraction of class membership is a factor establishing the impracticality of joining all parties. Johnson, 80 Wn.2d 531. However, the inability to precisely identify the exact number of class members is not grounds for refusal to certify a class. In re Sugar Indus. Antitrust Litig., 1977-1 CCH Trade Cas. ¶161,373 (N.D. Cal. 1976); In re Sugar Indus. Antitrust Litig., 73 F.R.D. 322 (E.D. Pa. 197'6); Albertson's, Inc. v. Amalgamated Sugar Co., 62 F.R.D. 43 (D. Utah 1973), aff'd in part, rev'd in part, 503 F.2d 459 (10th Cir. 1974); Mgmt. Television Sys., Inc. v. Nat'l Football League, 52 F.R.D. 162 (E.D. Pa. 1971). Although constant expansion and contraction of the class may be a factor favoring class treatment in the context of numerosity, this feature could also be used to argue against class treatment on the basis of manageability, a factor applicable to certification of CR 23(b)(3) classes. However, the Washington Court of Appeals has held, in the context of a CR 23(b)(2) class action, that the impossibility of identifying all class members is a factor favoring certification. Zimmer v. City of Seattle, 19 Wn.App. 864, 578 P.2d 548 (1978).

Finally, although the class is usually made up of plaintiffs, this is not always the case. For example, in a statutory proceeding analogous to CR 23, King County brought an action under Chapter 7.25 RCW for a declaratory judgment naming all taxpayers in the county as a defendant class. King County v. Taxpayers of King Cnty., 133 Wn.2d 584, 613-17, 949 P.2d 1260 (1997) (Sanders, J., dissenting), cert, denied, 522 U.S. 1076 (1998).

(b)Common legal or factual issues

CR 23(a) requires that common legal or factual issues be present if certification is to be granted. This requirement is little more than a common-sense definition of a class action as a suit in which issues common to a number of individuals or entities are litigated by a representative rather than by each of the parties affected. However, in Wal-Mart Stores, Inc. v. Dukes,___U.S.___, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374 (2011), the Supreme Court determined that the commonality requirement of Fed. R. Civ. P. 23(a)(2) is not satisfied if the putative class representatives merely pose a common question. Rather, plaintiffs must allege "a common contention ... capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Id. at 2545. The federal courts vary widely in their application of Wal-Mart, with some limiting its holding to employment discrimination cases and others applying it to class actions more generally. It similarly remains unclear whether, and to what extent, the Wal-Mart ruling, as persuasive authority, will affect Washington courts' interpretation of CR 23(a). For example, in Pellino v. Brink's Inc., 164 Wn.App. 668, 267P.3d383 (2011), decided after Wal-Mart, the Washington Court of Appeals did not mention Wal-Mart in its analysis, and instead relied on the long-standing Washington test that "[cjommonality is satisfied when the alleged facts indicate that the defendant was engaged in a common course of conduct in relation to all potential class members ... [and therefore] the court must conclude there are questions of law or fact common to the class." Id. at 682 (internal quotation marks omitted) (quoting Oda v. State, 111 Wn.App. 79, 91, 44P.3d8, review denied, 147 Wn.2d 1018 (2002)). Whether this indicates any systematic response by Washington courts to the Wal-Mart case is far from clear.

Ordinarily, the question of common issues arises not as to their mere existence, as required by CR 23(a), but rather as to whether they predominate over noncommon issues, as required in a CR 23(b)(3) action, or whether the action or refusal to take action by a party opposing the class is of such a nature as to be generally applicable to the class, as in a CR 23(b)(2) action. See, e.g., Brown v. Brown, 6 Wn.App. 249, 492 P.2d 581 (1971); see also Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986) (commenting that the "threshold of commonality" under Fed. R. Civ. P. 23(a) "is not high"). With respect to a CR 23(b) (2) action, the inquiry as to common factual and legal issues has been characterized as an inquiry into whether the party opposing the class is engaged in a common course of conduct in relation to all potential class members. The existence of noncommon issues along with common issues is not sufficient to defeat class treatment because procedural devices such as creation of subclasses for certain purposes are available under the rule. Brown, 6 Wn.App. 249.

(c)Typicality of claims or defenses

CR 23(a) further requires that the claims or defenses of the class representative(s) be typical of those of the class members. This requirement focuses on the nature of the legal claims of the class representative as compared with those of the remaining class members. In other words, is the case that must be proven by the class representative(s) essentially the same as the case that must be proven by the class members? It is not essential that the class representative's case be identical in every respect to that of each class member. However, it is essential that the nature of the class representative's claim be such that there is no significant conflict between the claims of the representative and those of the class members. The purpose of the typicality requirement is to assure that the interests of the named representative(s) align with the interests of the class. Jones v. Shalala, 64 F.3d 510, 514 (9th Cir. 1995) (citingHanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992)).

Aputative class representative may not litigate a claim against a defendant whom the representative could not sue individually. See, e.g., Doe v. Spokane & Inland Empire Blood Bank, 55 Wn.App. 106,112, 780 P.2d 853 (1989); see also Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 734 (3d Cir. 1970), cert, denied, 401 U.S. 974 (1971) ("What [a plaintiff] may not achieve for himself, he may not accomplish as a representative of a...