§23.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§23.8STRATEGIC AND PRACTICAL CONSIDERATIONS

This section explores the types of cases that may be certified as class actions and practical considerations relating to them.

(1)When class action is likely to be useful under Washington law

Circumstances when class action cases are likely to be useful in Washington are discussed below.

(a)Challenges to government action

CR 23 has been used most frequently in cases involving challenges to the legality or constitutionality of government action, such as tax cases and suits involving constitutional or civil rights. In such actions the primary issues ordinarily will be a declaration of the applicable legal standards and injunctive relief. Because such suits are not brought under the provisions of CR 23(b)(3), use of the class action device will not involve the complexities of notice, manageability, and predominance of common issues that have caused the most difficult problems under CR 23. Application of CR 23 to such actions under controlling decisions of the Washington appellate courts should ordinarily be relatively uncontroversial.

The court in Foundation for the Handicapped v. Department of Social & Health Services, 97 Wn.2d 691, 648 P.2d 884 (1982), held that retroactive class action relief may be denied if it places an undue financial burden on the state. However, the general applicability of this rule may be open to question, given that recovery of class action damages in that case would have resulted in unjust enrichment to the class members.

(b)Suits under consumer protection, antitrust, and trade regulation statutes

Alarge body of federal case law on application of Fed. R. Civ. P. 23(b)(3) involves either antitrust or securities cases. The RCW contains a number of consumer protection, antitrust, and trade regulation statutes that give rise to private remedies. Class actions also may therefore prove a suitable procedural vehicle for actions alleging violation of state trade regulation statutes such as the Franchise Investment Protection Act, Chapter 19.100 RCW; the Collection Agency Act, Chapter 19.16 RCW; the Residential Landlord-Tenant Act, Chapter 59.18 RCW; the Manufactured/Mobile Home Landlord-Tenant Act, Chapter 59.20 RCW; and the Retail Installment Sales Act, Chapter 63.14 RCW.

In many cases, class actions alleging violations of the Securities Act, Chapter 21.20 RCW, will be preempted by the federal Securities Litigation Uniform StandardsAct of 1998, Pub. L. No. 105-353,112 Stat. 3227 (1998). Following enactment of the Private Securities Litigation Reform Act of 1995 (PSLRA), Pub. L. No. 104-67, 109 Stat. 737 (1995), securities fraud cases began to shift from federal to state court. Prager v. Knight I Trimark Grp., Inc., 124 F.Supp.2d 229, 232 (D.N.J. 2000) (citing H.R. Rep. No. 105-803, at 14 (1998)). In response, Congress enacted the Uniform Standards Act "to preempt class actions based on state statutory or common law which involve a covered security." Lasley v. New Eng. Variable Life Ins. Co., 126 F.Supp.2d 1236, 1238 (N.D. Cal. 1999).

The Uniform Standards Act amended the SecuritiesAct of 1933, 15U.S.C.§§77a-77z,andthe Securities ExchangeAct of 1934,15U.S.C...