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California has joined the ranks of states with explicit case law forbidding the consideration of a case’s merits when making a class certification analysis. Here’s a look at the case law on class certification in all 50 states. Alabama See 1 Newberg on Class Actions � 3.16 (3d ed. 1992) (“The class representative need not show a probability of success on the merits to maintain a class action. Some courts have held that a plaintiff’s claim cannot be typical if it has some flaw not present in some or all of the claims of the class members, but most have held that an alleged defect in the plaintiff’s claim, such as might be raised in a personal defense, must be resolved in a trial on the merits and will not preclude the maintenance [of] a class action”). Ex parte Gold Kist Inc., 646 So. 2d 1339, 1342 (Ala. 1994). “The question of class certification is a procedural one distinct from the merits of the action.” Ex parte Government Employees Insurance Co., 729 So. 2d 299, 1999 Ala. LEXIS 41 (Ala. 1999) (quoting Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980)). Alaska No cases on point. Arizona “The determination of whether or not a class action should be allowed does not depend on whether the plaintiff has stated a cause of action or will prevail on the merits.” Home Federal Sav. and Loan Ass’n v. Pleasants, 534 P.2d 275, 277 (Ariz. App. 1975), overruled on other grounds, Hanania v. City of Tucson, 597 P.2d 190 (Ariz. App. 1979). Arkansas
The trial court’s proper focus in deciding whether to certify a class “is not ‘whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23�are met.’” As we observed, “it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action.�An order denying or granting class certification is separate from the merits of the case.”

Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 484, 944 S.W.2d 528, 530-31 (1997) (quoting Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. 706, 709-10, 918 S.W.2d 129, 130-31 (1996)). See also BPS Inc. v. Richardson, 2000 Ark. LEXIS 364, (Ark. July 7, 2000); Direct Ins. Company v. Lane, 944 S.W.2d 528, 531-32 (Ark. 1997). California

Like the foregoing authorities, we view the question of certification as essentially a procedural one that does not ask whether an action is legally or factually meritorious.

Linder v. Thrifty Oil Co., 97 Cal. Rptr. 2d 179 (Cal. 2000). Colorado No cases directly discussing whether the merits of a case could be considered when deciding whether or not to certify a class. However, cases have noted that Colorado’s rule is identical to Fed. R. Civ. P. 23 and Colorado courts give great weight to federal cases decided under Rule 23. Connecticut

When considering a motion to certify a class, the court will identify the substantive legal issues which control the litigation, but an inquiry into the merits is inappropriate.

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S. Ct. 2140, 2153, 40 L. Ed. 2d 732 (1974).

Connecticut’s requirements for certification of class actions are substantially similar to the requirements under Rule 23 of the Federal Rules of Civil Procedure, therefore, Connecticut courts look favorably to federal precedent for aid in construction.

Campbell v. New Milford Board of Educ., 36 Conn. Sup. 357, 359, 423 A.2d 900 (1980). Longley v. Indian Mountain School Inc., 1994 Conn. Super. LEXIS 1855 (Conn. Super. Ct. July 25, 1994). Delaware

In certifying a class, this Court makes a determination that all of the procedural requirements for certification are met but does not address the merits of the complaint.

In re First Interstate Bancorp Consol. Shareholder Litigation, 729 A.2d 851, 859 (Del. Ch. 1998). Florida “Matters of proof that go to the merits of the claim are inappropriate when considering class certification.” OCE Printing Systems USA Inc. v. Mailers Data Serv. Inc., 25 Fla. Law Weekly D 1454 (Fla. Dist. Ct. App. 2000). Georgia

[I]n determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of [OCGA � 9-11-23] have been met.

Taylor Auto Group Inc. v. Jessie, 527 S.E.2d 256, 258 (Ga. App. 1999). Hawaii No cases on point. Idaho

An intelligent decision on class certification requires “at least a preliminary exploration of the merits” of the plaintiff’s claim. Based on that exploration, the court must make specific findings establishing that the case satisfies the several requirements for certification.

Pope v. Intermountain Gas Co., 103 Idaho 217, 237, 646 P.2d 988, 1008 (Idaho 1982) (quoting Shelton v. Pargo Inc., 582 F.2d 1298, 1312-13 (4th Cir. 1978)). (The court goes on to describe the rule and clarifies that the inquiry into the merits is limited to determining whether the requirement of commonality is satisfied.) Illinois

Federal cases construing Rule 23 illustrate the narrow range of actions in which a ruling on the merits is appropriate before inquiry into class certification. These cases, following the lead of the United States Supreme Court in Eisen v. Carlisle & Jacquelin, 417 U.S. 176, 40 L. Ed. 2d 732, 94 S. Ct. 2140, state that the decision on class certification is completely independent of the possibility of success on the merits.�The one exception to determination of the propriety of the class action independent from and prior to ruling on the merits arises in the limited instance of the totally frivolous or insubstantial suit.

Schlessinger v. Olsen, 89 Ill. App. 3d 583, 589, 411 N.E.2d 1239, 1244 (Ill. App. Ct. 1980), overruled on other grounds by Schlessinger v. Olsen, 86 Ill. 2d 314, 427 N.E.2d 122 (Ill. 1981). Indiana

In making a determination regarding class certification, a trial court may not conduct a preliminary inquiry into the merits of the suit.�”A certification hearing is not intended to be a trial on the merits, and Trial Rule 23 does not require a potential class representative to show a likelihood of success on the merits in order to have his claim certified as a class action.”

Rene v. Reed, 726 N.E.2d 808 (Ind. Ct. App. 2000) (quoting Northern Indiana Pub. Serv. Co. v. Bolka, 693 N.E.2d 613, 615 (Ind. Ct. App. 1998)). Iowa

Greater scrutiny of the firm’s assertion that all participants may not be able to sustain claims under each theory of liability would require the court to inquire into the merits of each individual claim. Our class action rule neither encourages nor permits such an examination at the certification stage.

City of Dubuque v. Iowa Trust, 519 N.W.2d 786, 792 (Iowa 1994). Kansas No cases on point. Kentucky No cases on point. Louisiana

Plaintiffs correctly note that class certification is purely procedural, that is, whether the class action is procedurally preferable, not whether any of the plaintiffs will be successful in urging the merits of their claims. The trial court is not authorized by statute or by history of the class action procedure to assess the likelihood of success on the merits before approving a class action.

Hampton v. Illinois Cent. R. Co., 730 So.2d 1091, 1093 (La. App. 1999). See also Mayho v. Amoco Pipeline Co.,750 So.2d 278 (La. App. 1999); Andry v. Murphy Oil, U.S.A. Inc., 710 So.2d 1126 (La. App. 1998). Maine No cases on point. Maryland

A court should accept the putative class representative plaintiffs’ allegations as true in making its decision on class certification, see Emig, 184 F.R.D. at 385, and the determination may not be rested upon the merits of the underlying cause(s) of action, see Eisen, 417 U.S. at 177-78, 94 S.Ct. at 2152; Emig, 184 F.R.D. at 384. Nevertheless, “the court can go beyond the pleadings to the extent necessary to ‘understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.’”

Phillip Morris Inc. v. Angeletti, 752 A.2d 200 (Ct. App. Md. 2000) (citations omitted). Massachusetts There was nothing in Massachusetts on point. Eldridge v. Provident Companies Inc., 2000 Mass. Super. LEXIS 163 (Mass. 2000), however, discusses what is needed for certification but does not look at the merits. Michigan

The trial judge in the present case deferred a ruling on the propriety of a class action format in order to first address the substantive questions raised by the complaints. We have serious doubts about the wisdom of that choice. If we were operating under Fed. R. Civ. Proc. 23, the trial judge’s failure to consider the class action question would be clear reversible error. Eisen v Carlisle & Jacquelin, 417 U.S. 156; 94 S. Ct. 2140; 40 L. Ed. 2d 732 (1974). Our own Rule 208, supra, was copied directly from an earlier version of Fed. R. Civ. P. 23, supra. But Michigan has not yet adopted the subsequent amendment to the Federal rule which Eisen interpreted as mandating that the propriety of the class action be considered before the merits in all cases. That failing at least left the door ajar for the procedure followed by the trial judge in the present cases. Northview Construction Co. v. St. Clair Shores, 395 Mich. 497; 236 N.W.2d 396 (1975), reversing 44 Mich. App. 614; 205 N.W.2d 895 (1973), reh. granted 395 Mich. 924 (1976), aff’d on reh., 399 Mich. 184; 249 N.W.2d 290 (1976). We recognized precisely such a possibility in Grigg v Michigan National Bank, supra. “We hold that shortly after a class action is filed, and after discovery, a trial court should usually first determine whether a class action can be maintained before any findings on the merits.�There may, however, be instances where considerations of judicial economy will dictate that at least a partial ruling on the merits should precede certification of the class.” 72 Mich. App. at 381-382. But, even if the opportunity theoretically exists, we believe, for reasons more fully outlined in Eisen, Grigg v. Michigan National Bank, supra, and Kass v. H B Shaine & Co. Inc., 71 Mich. App. 101; 246 N.W.2d 396 (1976), that the trial judge abused his discretion by deferring the class action question in this case. However, in all fairness to plaintiffs we recognize that we have been presented with something of a fait accompli. Given the present posture of the case, we believe that the interests of justice will be better served if we address the merits of the case and resist the inclination to summarily reverse.

Grigg v. Robinson Furniture Co., 78 Mich. App. 712 (1977). Minnesota Class actions present two separate issues for adjudication. One issue concerns the merits of the case; the other issue addresses the propriety of class certification. See Streich v. American Family Mut. Ins. Co., 399 N.W.2d 210 (1987). Generally, class certification is considered before a case is decided on the merits. Forcier, 310 N.W.2d at 129; Minn. R. Civ. P. 23.03(1). This general principle is not applicable, however, where “the merits of the litigation are fully determinable as a matter of law, based exclusively on judicial construction of controlling state statutes.” Holisak v. Northwestern National Bank of St. Paul, 210 N.W.2d 413, 415 (1973). In this case, the trial court decided the issue of retroactivity as a matter of law on the parties’ motions for summary judgment. On appeal, the high court held that Peterson applied retroactively. Streich, 358 N.W.2d at 399. The court then remanded the case for further proceedings. Mississippi No cases on point. Missouri

[T]he testimony and evidence on certification heard on a Rule 52.08(b)(3) class is only to determine, among other things, common questions of law or fact and whether a class action is superior to other methods of adjudication. The merits of plaintiff’s claims were not heard in the certification hearing. The certification itself is not chipped in stone, and, as any certification order, “may be altered or amended before decision on the merits.” Rule 52.08(c)(1).

Reinhold v. Fee Fee Trunk Sewer Inc., 664 S.W.2d 599 (1984). Montana No cases on point. Nebraska No cases on point. Nevada

In analyzing whether it should certify a class, the court should generally accept the allegations of the complaint as true. Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975), cert. denied, 429 U.S. 816, (1976). An extensive evidentiary showing is not required. Id. In the Tenants’ case, this court must determine whether questions of law or fact are common to class members. If such questions do exist, then the district court acted arbitrarily and capriciously in failing to certify the class, justifying this court’s use of mandamus to compel certification.

Meyer v. Eighth Judicial Dist. Court of Nevada, 110 Nev. 1357 (1994). New Hampshire No cases on point. New Jersey

The Supreme Court has held that a class action may be certified only if the trial court has undertaken a “rigorous analysis” and is satisfied that the prerequisites of Rule 23(a), the federal equivalent of R. 4:32-1, have been met. General Telephone Co. v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 2372, 72 L. Ed. 2d 740, 752 (1982). Although class certification should not be denied based on the merits of a complaint, some preliminary analysis is required. In re Cadillac, 93 N.J. at 426; Olive v. Graceland Sales Corp., 61 N.J. 182, 189, 293 A.2d 658 (1972). As stated by the Fifth Circuit, inquiry beyond the pleadings is necessary because “a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996).

Carroll v. Cellco Pshp., 313 N.J. Super. 488 (1998).

As a general matter, New Jersey courts, as well as federal courts construing the federal class action rule after which our rule is modeled, have consistently held that the rule must be liberally construed and that the proposed class action be permitted unless there is a clear showing that it is improper or inappropriate. Riley v. New Rapids Carpet Center, 61 N.J. 218, 228, 294 A.2d 7 (1972); In Re Cadillac V8-6-4 Class Action, 93 N.J. 412, 435 (1983); Delgozzo v. Kenny, 266 N.J. Super. 169, 179, 628 A.2d 1080 (App. Div. 1993). Also, the determination of class certification must be made with reference to the criteria for maintaining a class action. Plaintiff’s chances of winning on the merits are irrelevant. Delgozzo, 266 N.J. Super. at 180-81.

Gross v. Johnson & Johnson-Merck Consumer Pharms. Co., 303 N.J. Super. 336 (1997)

When determining whether a class should be certified, a court is not to make a preliminary determination of the merits of the underlying claims. Eisen v. Carlisle & Jacquelin (Eisen IV), 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Olive v. Graceland Sales Corp., 61 N.J. 182, 189, 293 A.2d 658 (1972); Kronisch I, supra, 133 N.J. Super. at 135-36, 335 A.2d 587. “The court is bound to take the substantive allegations of the complaint as true, thus necessarily making the class order speculative in the sense that the plaintiff may be altogether unable to prove his allegations.” Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir. 1975), cert. den., 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976); see Riley, supra, 61 N.J. at 223, 294 A.2d 7 (“We of course are not deciding the ultimate factual issues in the case. We have summarized the record to reach the legal questions, and in doing so we accorded plaintiffs every favorable view”).

Delgozzo v. Kenny, 266 N.J. Super. 169 1993 New Mexico No cases on point. New York

Class certification should not be denied on the basis of an inaccurate answer as to a matter irrelevant to the class certification question or the merits of the case, which, in this matter, turns on the truth or falsity of representations in the prospectus. ( Gibb v Delta Drilling Co., 104 FRD 59, 76 (N.D. Tex. 1984).)

Pruitt v. Rockefeller Ctr. Properties Inc., 167 A.D.2d 14 (1991).

[Inquiry] on a motion for class action certification vis-a-vis the merits is limited to a determination as to whether on the surface there appears to be a cause of action which is not a sham (see Simon v. Cunard Line, 75 A.D.2d 283) ( Brandon v. Chefetz, 106 A.D.2d 162, 168).

Super Glue Corp. v. Avis Rent A Car Sys., 132 A.D.2d 604 (1987).

This court has earlier observed that in determining whether an action should proceed as a class action, the courts may consider, in addition to the factors enumerated in CPLR 902, the merits of the action, with a view toward eliminating spurious and sham suits as early as possible. ( Seligman v. Guardian Life Ins. Co., 59 A.D.2d 859, 860, mot. for leave to app. dism’d 44 N.Y.2d 646; see also Twentieth Ann. Report of N.Y. Judicial Conference, 1975, p. 208: “The list [of relevant factors in CPLR 902] is non-exhaustive. For example, the apparent merits of the claims asserted may have a bearing on the court’s determination.”) When the factors listed in CPLR 902 are evaluated together with the apparent lack of merit of the claims asserted, the inappropriateness of the action for class action certification seems to us quite clear.

Yollin v. Holland America Cruises Inc., 97 A.D.2d 720 (1983). Although there are instances of cases under the federal rule in which the certification as a class action has been withheld until after the merits had been determined, those cases have had unique characteristics and provide no precedent for a similar result in this case (e.g., Jimenez v. Weinberger, 523 F.2d 689, cert. den. sub nom. Mathews v. Jimenez, 427 U.S. 912 [holding limited to suits under Rule 23, subd (b), par (2)]; Alexander v. Aero Lodge No. 735, 565 F.2d 1364 [action proceeded to trial as class action]). Certification as a class action after determination of the merits was held improper in Peritz v. Liberty Loan Corp., 523 F.2d 349; O’Hara v. Del Bello, 47 N.Y.2d 363 (1979). North Carolina

In an action arising from the “Season Ticket” cable television program, which required an additional fee for coverage of 23 ACC basketball games, the trial court erred by finding that the actual amount of damages would be at most $0.29 and refusing certification as a class action. North Carolina trial courts have no authority to hear the merits of a case in determining whether to certify a class. G.S. 1A-1, Rule 23.

Maffei v. Alert Cable TV Inc., 75 N.C. App. 473 (1985). North Dakota

It is well settled that a district court must make a determination of class certification without delving into the merits of the case. See Eisen v. Carlisle & Jacquelin et al., 417 U.S. 156, 177, 40 L.Ed. 2d 732, 94 S. Ct. 2140 (1974). The question is whether the requirements to certify a class action have been met, not whether the plaintiffs will prevail on the merits. Id. at 178. The district court properly considered commonality without determining the merits of the case.

Werlinger v. Champion Healthcare Corp., 1999 N.D. 173 (or 598 N.W.2d 820) (1999). Ohio An examination under Civ.R. 23 must focus on the rule alone. It is not an examination upon the merits of plaintiffs’ claims, and, moreover, the determination of whether to certify a class must be unrelated to the perceived merits of plaintiffs’ complaint. Breedlove v. Ohio Dept. of Transp., 598 N.E.2d 242, 245 (Ohio Ct. Cl. 1991) (citations omitted).

In addition, it appears that the Court of Claims was not reviewing the propriety of class certification but was attempting, contrary to the applicable law, to reach the merits of the claim. Class action certification does not go to the merits of the action.

Ojalvo v. Board of Trustees of Ohio State, 446 N.E.2d 875, 877 (Ohio 1984). Oklahoma

Oryx complains that some producers who took assignments of their rights from Plant owners do not have valid claims. This argument relates to the merits of the action, and inquiry into the merits is inappropriate when the court is deciding whether a class should be certified.

Black Hawk Oil Co. v. Exxon Corp., 969 P.2d 337, 343 (Okla.1998). Oregon No cases on point. Pennsylvania “Whether a suit should proceed as a class action is independent of the question whether plaintiffs have stated a cause of action or whether they can prevail on the merits.” Pincus v. Mutual Assur. Co., 321 A.2d 906, 908 (Pa. 1974). See also Bell v. Beneficial Consumer Discount Co., 360 A.2d 681 (Pa. Super. 1976). Rhode Island “In ruling on a motion for class certification, a court should not decide the merits of the case.” Zarella v. Minnesota Mutual Life Ins. Co., 1999 WL 226223, *3 (R.I. Super. 1999). South Carolina “A court may not look to the merits when determining whether to certify a class.” Tilley v. Pacesetter Corp., 508 S.E.2d 16, 21 (S.C. 1998). South Dakota No cases on point. Tennessee No cases on point. Texas

The purpose of the court’s inquiry into the substantive law issues is to determine whether the character and nature of the case satisfies the requirements of the class action procedural rules, not to weigh the substantive merits of each class member’s claim.

Spera v. Fleming, Hovenkamp & Grayson, P.C., 4 S.W.3d 805, 811 (Tex. App. 1999). See also Tana Oil & Gas Corp. v. Bates, 978 S.W.2d 735 (Tex. App. 1998). Utah No cases on point. Vermont No cases on point. Virginia No cases on point. Washington

Because the certification of a class is to be undertaken with no consideration of the merits of the plaintiffs’ claims, the way in which class certification was denied was an abuse of the court’s discretion.

Washington Educ. Ass’n v. Shelton School Dist. No. 309, 613 P.2d 769, 773 (Wash. 1980). West Virginia West Virginia is one of the few states retaining the 1938 model of Federal Rule 23.

We quite agree that the trial court’s guess as to which party would prevail at trial should have no bearing on the allowance or disallowance of a proposed class action.

See Burks v. Wymer, 307 S.E.2d 647 (W.Va. 1983). Wisconsin No cases directly on point, but see State ex rel. Jones v. Gerhardstein, 400 N.W.2d 1 (1986) (finding that class action was proper before turning to the merits of the case). Wyoming No cases on point.

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