Standards For Class Certification Under the Ohio Rules of Civil Procedure: A Concise Summary
Ohio Rule of Civil Procedure 23(a) contains five explicit requirements that must each be satisfied when seeking class certification. However, by judicial decree there are two additional implied prerequisites to certification. Thus, the Ohio Supreme Court has ruled that the trial court must make seven affirmative findings. These requirements are set forth in Warner v. Waste Management, 36 Ohio St.3d 91, 521 N.E.2d 1091 (1988); See also, Currey v. Shell Oil Co., 112 Ohio App.3d 312, 316-17, 678 N.E.2d 635, 638-39 (1996)(Discussing the holding of Warner and the findings to support certification).
First, the plaintiff must establish that an identifiable class actually exists. Second, the named representatives must be members of that class. Warner v. Waste Management, 36 Ohio St.3d at 96, 521 N.E.2d at 1096.
Thereafter, the plaintiff must demonstrate:
- the class is so numerous that joinder of all members is impracticable;
- there are questions of law or fact common to the class;
- the claims or defenses of the representative parties are typical of the claims or defenses of the class;
- the representative parties will fairly and adequately protect the interests of the class;
- Common questions predominate over questions effecting only individual members; and, that a class action is superior to other available methods of resolving the claims.
Ohio R.Civ.P 23 (a); Warner v. Waste Management, Inc., 36 Ohio St.3d 91, 95-96 (1988). Each requirement is addressed in turn.
A. Numerosity
For a class action to be appropriate, the proposed class must be so numerous that "joinder of all members is impracticable." Ohio R.Civ.P 23 (a)(1). There is no specified numerical limit that must be satisfied in order to maintain a class action. Warner v. Waste Management, 36 Ohio St.3d at 97. "Impracticable" does not mean "impossible." Planned Parenthood Ass’n of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 64, 556 N.E.2d 157, 165 (1990). Thus, to meet this requirement, the class representatives need only show that it is difficult or inconvenient to join all the members of the class. When the number is large, the number alone is sufficient to establish that the class is so numerous that joinder of all members is impracticable. See Hamilton v. Ohio Savings Bank, 82 Ohio St.3d 67, 75, 694 N.E.2d 442, 450 (1998). See also, Warner v. Waste Management, Inc., 36 Ohio St.3d 91, 521 N.E.2d 1091 (1989)(Five hundred member class satisfied numerosity in mass tort case); Vinci v. American Can Co., 9 Ohio St.3d 98, 459 N.E.2d 507 (1984)(sixty-eight member class certified).
B. Commonality
In order to maintain a class action, there must be "questions of law or fact common to the class." Ohio R.Civ.P 23(a)(2) (emphasis added). This commonality requirement has been characterized as a "low hurdle" easily surmounted. Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D. Ill 1992); see also, Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982) (commonality test is met when there is "at least one issue whose resolution will affect all or a significant number of the putative class members").
Ohio courts have generally given the requirement of commonality a permissive application. Marks v. C. P. Chem. Co., Inc., 31 Ohio St.3d 200. 202, 509 N.E.2d 1249, 1252 (1987). The rule thus does not require a complete identity of circumstances among class members. Differences among class members are not fatal to a class action as long as some common questions of fact or law exist. Indeed, a single common issue will suffice. Marks v. C. P. Chem. Co., Inc., 31 Ohio St.3d 200, 202, 509 N.E.2d 1249, 1252-53 (1987).
The commonality requirement is therefore satisfied where plaintiffs allege standardized conduct by defendants directed toward members of the proposed class. See Miles v. N. J. Motors, 32 Ohio App.2d 350, 291 N.E.2d 758 (1972)(Common nucleus of operative facts establishes commonality). In such cases, any factual distinctions that may exist among class members are far less important than the common issues bearing on the existence of a ‘common scheme’ of misrepresentations and omissions.
The Ohio Supreme Court has held that claims based on an underlying scheme are particularly subject to common proof. Cope v. Metropolitan Life Ins. Co., 82 Ohio St.3d 426, 431-32, 696 N.E.2d 1001, 1005 (1998). Upon the basis of generalized conduct toward the class, numerous mass tort cases have been certified by Ohio courts, including but not limited to: Warner v. Waste Management Co., 36 Ohio St.3d 91, 521 N.E.2d 1091 (1988)(toxic waste dump; certification granted); Klocke v. A & D Limited Part., 629 N.E.2d 49 (Ohio App. 1993)(Sick building syndrome appropriate for certification); Lowe v. Sun Refining & Marketing Co., 73 Ohio App.3d 563, 597 N.E.2d 1189 (1992)(pollution of creek; certification granted); DeSario v. Industrial Excess Landfill, 68 Ohio App.3d 117, 587 N.E.2d 454 (1991) (toxic landfill; certification granted); Reynolds v. CSX Transportation, Inc., 55 Ohio App.3d 19, 561 N.E.2d 1047 (1989) (train derails resulting in phosphorous fire; certification granted on issues of negligence and punitive damages); and White v. Aztec Catalyst Co, No. 93-111025 (Ohio Ct. C.P. Lorain Co. Sept. 10, 1993) (chemical fire and explosions; certification of mass tort).
C. TypiClass Action Litigationty
"[T]ypiClass Action Litigationty is satisfied where the interests of the named parties arise from the same course of conduct that gave rise to the claims of the class they seek to represent and are based on the same legal or remedial theory . . ." See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984), cert. denied, 470 U.S. 1004 (1985)). See also, Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir.1985). If essentially identical allegations would be made as to liability if the cases were tried individually, typiClass Action Litigationty is established. Cf. Planned Parenthood Assoc. of Cincinnati v. Project Jericho, 52 Ohio St.3d at 64, 556 N.E.2d at 166.
Defendants challenging typiClass Action Litigationty frequently attempt to isolate and emphasize factual differences between the claims of the named class representatives and those of other class members, but such differences will not defeat a finding of typiClass Action Litigationty; indeed, a strong similarity of legal issues will suffice despite even "substantial" factual differences. In re Amerifirst Sec. Litig., 139 F.R.D. 423, 428 (S.D. Fla. 1991). The typiClass Action Litigationty requirement therefore may be satisfied even though varying fact patterns support the claims or defenses of individual class members, or there is a disparity in the damages claimed by the representative parties and the other members of the class. 7A Wright and Miller, Federal Practice & Procedure § 1764 (1986).
As stated in Miles v. N. J. Motors, 32 Ohio App.2d 350, 356, 291 N.E.2d 758, 763 (1972), complete identity of between claims of each class member is not necessary, only typiClass Action Litigationty is required. It is for that reasons that factual divergences are overridden where the claims of the class representatives and the class members arise from the same alleged course of conduct by the defendants. When the plaintiffs' claims arise from precisely the same alleged course of conduct that gives rise to the claims of the class they seek to represent, typiClass Action Litigationty is established.
In other words, the factor, which is of paramount importance here, is the defendants' course of conduct, or common scheme, and whether it was. Appleyard, 754 F.2d at 958; similarly directed at each class member including the named class plaintiffs. See DeSario v. Industrial Excess Landfill, 68 Ohio App.3d 117, 587 N.E.2d 454 (1991).
D. Adequacy of Representation
The next prerequisite of Rule 23 (a) requires that "the representative parties will fairly and adequately protect the interests of the class." Because the purpose of this requirement is protection of the legal rights of absent class members, it has two components. First, the class representatives must not possess interests antagonistic to the interests of the class. Marks v. C. P. Chemical Co., 31 Ohio St.3d 200, 203, 509 N.E.2d 1249 (1987). Second, the representatives' counsel must be qualified, experienced and generally able to conduct the proposed litigation. Warner v. Waste Management, Inc., 36 Ohio St.3d at 1120.
There should be no antagonisms between the named plaintiffs and the class members. All of the guardian class representatives must demonstrate their willingness and ability to assist throughout this litigation. Such a willingness may be demonstrated by their submitting to depositions, answering discovery propounded upon them, and being available as needed for any service required of them. Further, counsel must be qualified, experienced and able to conduct the action for the adequacy requirement to be satisfied. Cf. Warner v. Waste Management, Inc., 36 Ohio St.3d 91, 96 – 98.
E. Predominance and Superiority
In determining the propriety of certification, the court must give adequate consideration to whether the asserted claims are susceptible of class-wide proof, thereby obviating the need for separate adjudications. Cope v. Metropolitan Life Insurance Company, 82 Ohio St.3d 426, 429 (1998). "It is now well established that "a claim will meet the predominance requirement when there exists generalized evidence which proves or disproves an element on a simultaneous class-wide basis, since such proof obviates the need to examine each class members individual position." Cope. at 429 – 30. As stated by the Court in Cope, in discussing the federal rule upon which the Ohio Rule is based, and noting the Comments of the Federal Rules Advisory Committee:
Subdivision (B)(3) encompasses those cases in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision without sacrificing procedural fairness or brining about other undesirable results...
The fact that individual damages may vary among class members does not mitigate against certification. Ojalvo v. Board of Trustee of Ohio State Univ., 12 Ohio St.3d 230, 232, 466 N.E.2d 875, 876-77 (1984). Individual damages may be addressed through a bifurcated trial plan. The Supreme Court of Ohio has approved this bifurcated approach to case disposition in the class action context. Warner v. Waste Management, Inc., 36 Ohio St.3d 91, 521 N.E.2d 1091 (1988).
F. Additional Considerations
The Supreme Court of Ohio clearly favors the utilization of class action procedures and has held that a trial court commits an abuse of discretion in failing to give adequate consideration to whether an element of the asserted claims is susceptible of class-wide proof thereby obviating the need for separate adjudications on the issue. Cope v. Metropolitan Life Ins., Co., 82 Ohio St.3d 425, 429, 696 N.E.2d 1001, 1004 (1998). Class action litigation may be the only practical method of achieving justice for a group of individuals wronged:
To permit defendants to contest liability with each claimant in a single, separate suit, would, in many cases, give defendants an advantage that would be almost equivalent to closing the door of justice on all small claimants. This is what we think the class suit practice was to prevent.
Weeks v. Bareco Oil Co., 125 F.2d 84, 90 (7th Cir. 1941).
Principles Established for Judicial Consideration of Certification Motions
In its analysis of the propriety of class certification, the court should accept plaintiffs’ substantive allegations as true. Cleveland Bd. of Education v. Armstrong World Indus., 22 Ohio Misc.2d 18, 20, 476 N.E.2d 397, 400 (1985); Ungerbuhler v. Butler Rural Electric Cooperative, 1985 Ohio App. LEXIS 5570 at *4 ("On class certification motion only the elements of Rule 23 are at issue; the court must assume that the substantive allegations of the complaint are true.") Second, in making the decision on class certification, the court should not concern itself with deciding the merit of plaintiffs’ claims in the action. Ojalvo v. Board of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 233, 466 N.E.2d 875, 877 (1984).
As the United States Supreme Court has observed in its interpretation of the federal rule upon which the Ohio rule is based:
We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule...
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178 (1974).
There is a presumption favoring class certification: "the interests of justice require that in a doubtful case... any error, if there is to be one, should be committed in favor of allowing a class action." Eisenberg v. Gagnon, 766 F.2d 770, 785 (1985) (quoting Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968). The court, in determining the propriety of class certification has broad discretion, and that determination will not be disturbed absent abuse of discretion. Planned Parenthood Assoc. of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 62 (1990); Marks v. C.P. Chem. Co., 31 Ohio St.3d 200 (1987); Vinci v. American Can Co., 9 Ohio St.3d 98 (1984).
Conclusion
Ohio courts have demonstrated a willingness to proceed via a class action in cases where all prerequisites are met. Their philosophy demonstrates a recognition of the goals of class action litigation and its ability to achieve a fair and expedient resolution of numerous claims. Since class certification motions are subject to continuing review during the course of such litigation, the more appropriate procedure in any questionable case is to grant certification and allow the parties to more fully develop the records prior to adjudication.