Union Pac. R.R. v. Vickers
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Cite as 2009 Ark. 259
SUPREME COURT OF ARKANSAS
No.
08-934
UNION PACIFIC RAILROAD;
HERBERT C. STUART; RODNEY
WAYNE WOODS; AND RONNIE
CHARLES GLOVER,
APPELLANTS,
Opinion Delivered May 7, 2009
AN APPEAL FROM THE CIRCUIT
COURT OF LAFAYETTE COUNTY,
ARKANSAS, NO. CV 09-5-2,
HONORABLE JIM HUDSON, CIRCUIT
JUDGE
VS.
VICTOR S. VICKERS; ROBERT UDELL,
ADMINISTRATOR OF THE ESTATE OF
TRACEY UDELL, DECEASED; AND
JAMES FREEMAN, INDIVIDUALLY
AND ON BEHALF OF ALL OTHER
PERSONS SIMILARLY SITUATED,
APPELLEES,
REVERSED AND REMANDED.
ELANA CUNNINGHAM WILLS, Associate Justice
This is an interlocutory appeal from a class certification order entered by the
Lafayette County Circuit Court on April 16, 2008. Appellee Victor S. Vickers was injured
in a collision with a Union Pacific train on December 31, 2001; appellee Robert Udell is the
father of Tracey Udell, who died as the result of injuries sustained in a collision with a
Union Pacific train in 1999; and appellee James Freeman suffered injures in a 1998 collision
with a Union Pacific train. Vickers, Udell, and Freeman all entered into settlement
agreements with Union Pacific whereby they released Union Pacific from any future claims.
Cite as 2009 Ark. 259
On February 14, 2005, Vickers and Udell filed a class-action complaint against Union
Pacific Railroad (“Union Pacific”) and several of Union Pacific’s employees.1 The
complaint alleged that, shortly after the accidents described above, Union Pacific sought out
the injured individuals in order to settle their claims and release Union Pacific from liability.
The complaint further alleged that Union Pacific informed the injured persons that they
should not hire an attorney; that getting an attorney would cause delay; that obtaining the
advice of an attorney would not benefit them; and that an attorney would cost them more
than it would benefit them. In addition, the plaintiffs asserted that, by developing a
relationship of confidence and trust with the injured parties, Union Pacific gained a position
to exercise influence over them and used that position to settle its claims with the accident
victims for amounts lower than the fair and reasonable value of the claims.
In the complaint, the plaintiffs asserted that Union Pacific had made similar
representations to all the members of the proposed class, which consisted of those
individuals who had settled claims with Union Pacific “as a result of [Union Pacific’s]
fraudulent concealment, misrepresentation, and/or concealment of material facts that would
have caused class members to not settle for the amount settled for and/or to retain an
attorney independent of [Union Pacific] to represent his interests.” The complaint asserted
1
James Freeman was added as a named plaintiff in an amended complaint filed on
April 5, 2007. The named defendants are employees of Union Pacific: Herbert Stuart is
director of Union Pacific’s claims department; Rodney Woods is a claims manager for
Union Pacific; and Ronnie Glover is a claims adjuster for Union Pacific.
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that there were questions of law and fact common to all class members, including, among
others, the questions of whether Union Pacific engaged in business practices of settlement
that violated the Arkansas Deceptive Trade Practices Act (ADTPA) and whether Union
Pacific and the individual defendants had illegally practiced law.2
Union Pacific first moved to dismiss the complaint on March 18, 2005, arguing that,
because the plaintiffs’ claims were barred by their releases, the complaint failed to state facts
upon which relief could be granted. Union Pacific also asserted that the complaint did not
state a claim under the ADTPA because the plaintiffs were not consumers and that it failed
to state facts supporting a claim for the unauthorized practice of law. The circuit court
denied Union Pacific’s motion to dismiss on January 16, 2007.
The plaintiffs filed their motion for class certification on June 1, 2007. In this
motion, they argued that Union Pacific engaged in the same pattern of conduct with respect
to each putative class member, and that this common “unlawful course of conduct and
practice” warranted certification as a class action. Noting that a common course of conduct
generally defeats individual issues regarding causation and damages, the plaintiffs urged that
their claims were founded on a common fraudulent scheme or plan used by Union Pacific
to settle claims with injured individuals for less than the fair value of those claims.
2
The complaint initially listed five causes of action: fraudulent concealment and
material misrepresentation; violations of the ADTPA; illegal practice of law; negligence;
and conversion. At the hearing on the class-certification motion, the plaintiffs amended their
pleadings to reflect only the unauthorized-practice-of-law and ADTPA claims.
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Union Pacific responded on July 2, 2007, asserting that there was no common pattern
in conducting settlement negotiations and that each settlement negotiation was “individual
and unique,” turning on oral discussions that were different for every putative class member.
Union Pacific further argued that, despite extensive discovery, the plaintiffs’ motion for
class certification was “bereft of any mention of any facts establishing any common pattern
or predominant classwide issue suitable for class treatment.” Further, Union Pacific
contended that the proposed class “depend[ed] on individual determinations on a case-bycase basis as to whether someone is in or out of the proposed class.” Thus, the claims were
not suitable for class treatment “because each cause of action requires individual fact-finding
as to the content of oral discussions between hundreds of different claimants and at least
twenty different UP claims representatives.” In the absence of a predominant issue that was
common to the entire class, Union Pacific argued, class certification was inappropriate.
The circuit court held a hearing on the plaintiffs’ class-certification motion in October
2007. At that time, the plaintiffs altered the definition of their class and proposed a set of
common issues of law and fact. On April 16, 2008, the circuit court entered an order
granting class certification. In its order, the court adopted the precedent submitted by the
plaintiffs and made numerous factual findings. Among them, the court found that, in
approximately 1992, Union Pacific established, as part of a uniform company-wide policy
and practice, a claims resolution system to settle claims and potential claims against it. The
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court found that the company trained its claims representatives in handling claims, and its
policy was to contact injured persons within twenty-four to forty-eight hours of the incident
to initiate the settling of claims against the company. The court further found that, as part
of the settlement process, Union Pacific would prepare a release and obtain the injured
person’s signature on it. Additionally, the court determined that the result of this process
was Union Pacific’s “obtaining substantial economic benefits by saving money on the
amount of claims paid out, avoiding additional litigation expenses . . . [and] obtaining full
releases from class members for settlement amounts typically and significantly less than the
value of a claimant’s claim.”
In certifying the class, the court determined that the plaintiffs had satisfied each of
the requirements of Ark. R. Civ. P. 23. The court found that the class would have
approximately three hundred members, so the numerosity requirement had been satisfied.
The court also determined that the plaintiffs had satisfied the commonality requirement,
declaring that there were five questions of fact or law common to all members of the class:
1.
Did Defendants prepare or fill in legal documents?
2.
Did Defendants select and/or complete legal instruments?
3.
Did Defendants advise claimants regarding legal rights?
4.
Did Defendants engage in the unauthorized practice of law?
5.
Did Defendants engage in deceptive trade practices under the Arkansas
Deceptive Trade Practices Act?
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The court also found that the representatives’ claims were typical of those of the
class, and that the named representatives were adequate to represent the class. Finally, the
court found that the common issues predominated over any individual questions and that a
class action was the superior method for handling the matter. Accordingly, the court
certified the class consisting of “[a]ll unrepresented, non-railroad-employee citizens of
Arkansas who settled personal injury or wrongful death claims with Union Pacific from
1992 to February 14, 2005.”
On appeal, Union Pacific challenges the trial court’s ruling regarding only three of
the Rule 23 requirements: commonality, predominance, and adequacy. In addition, Union
Pacific assigns two other points of error, contending that 1) the circuit court’s order made
findings of fact that were unsupported by the record, and 2) the court abused its discretion
by including in the class plaintiffs whose settlements had previously been approved by a
probate court.3
We have held that circuit courts are given broad discretion in matters regarding class
certification and that we will not reverse a circuit court’s decision to grant or deny class
certification absent an abuse of discretion. See Ga.-Pac. Corp. v. Carter, 371 Ark. 295, 265
S.W.3d 107 (2007); Beverly Enters.–Ark., Inc. v. Thomas, 370 Ark. 310, 259 S.W.3d 445
3
Union Pacific does not challenge the court’s conclusions regarding numerosity,
typicality, or superiority; therefore, the court need not address them. See Advance Am.
Servicing of Ark., Inc. v. McGinnis, 2009 Ark. 151, 300 S.W.3d 487.
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(2007). When reviewing a circuit court’s class-certification order, we review the evidence
contained in the record to determine whether it supports the circuit court’s decision. Ga.Pac., supra. We have stated:
[T]he issue of whether to certify a class is not determined by 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. We have also observed that 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. Although we do not delve into the merits of the underlying claims in a
potential class-action case, we will review the trial court’s order to determine whether
the requirements of Rule 23 are satisfied.
Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 186 S.W.3d 705 (2004) (internal citations
omitted).
Rule 23 of the Arkansas Rules of Civil Procedure governs class actions and class
certification. The rule provides, in pertinent part, as follows:
(a) Prerequisites to Class Action. One or more members of a class may sue or
be sued as representative parties on behalf of all only if (1) the class is so numerous
that joinder of all members is impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the representative parties and
their counsel will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action
if the prerequisites of subdivision (a) are satisfied, and the court finds that the
questions of law or fact common to the members of the class predominate over any
questions affecting only individual members, and that a class action is superior to
other available methods for the fair and efficient adjudication of the controversy.
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This court has reviewed the provisions of Rule 23 on numerous occasions and has
held that, in order for a class-action suit to be certified, six factors must be met. Specifically,
the party seeking certification must establish: (1) numerosity; (2) commonality; (3)
predominance; (4) typicality; (5) superiority; and (6) adequacy. Williamson v. Sanofi
Winthrop Pharm., Inc., 347 Ark. 89, 60 S.W.3d 428 (2001).
Because Union Pacific first challenges the trial court’s conclusions regarding
commonality and predominance, we begin our analysis by setting out the tests for those two
Rule 23 requirements. Rule 23(a)(2) of the Arkansas Rules of Civil Procedure requires a
determination by the trial court that “there are questions of law or fact common to the class.”
See also Williamson, 347 Ark. at 96, 60 S.W.3d at 432. In Williamson, this court noted
that, under our case law, this requirement is case-specific. Id. There, the court cited
Professor Newberg’s treatise on class actions as follows:
[T]he common question prerequisite is interdependent with the notion of joinder
impracticability under Rule 23(a)(1). Consideration of the common question issue
requires an answer to the question: Common to whom?
....
Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation
be common. The test or standard for meeting the rule 23(a)(2) prerequisite is . . . that
there need be only a single issue common to all members of the class. . . .When the
party opposing the class has engaged in some course of conduct that affects a group
of persons and gives rise to a cause of action, one or more of the elements of that
cause of action will be common to all of the persons affected.
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Id. at 96, 60 S.W.3d at 432 (quoting Herbert B. Newberg, Newberg on Class Actions § 3.10
(3d ed. 1993)).
The Williamson court also noted that the circuit court “must determine what elements
in a cause of action are common questions for the purpose of certifying a class.” Id.; see
also BPS, Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000). In addition, we have
said that commonality is satisfied where the “defendant’s acts, independent of any action by
the class members, establishes a common question relating to the entire class.” Williamson,
347 Ark. at 97, 60 S.W.3d at 433.
Predominance is a more stringent requirement than commonality. BPS, Inc., supra;
Baker v. Wyeth-Ayerst Labs. Div., 338 Ark. 242, 992 S.W.2d 797 (1999) (citing Amchem
Prods., Inc. v. Windsor, 521 U.S. 591 (1997)). If there is a common question of law or fact,
the court must then determine whether that common question predominates over questions
that affect only individual members. Ark. R. Civ. P. 23(b); Lenders Title Co. v. Chandler,
358 Ark. 66, 186 S.W.3d 695 (2004); BPS, Inc., supra. The starting point for examination
of this issue is whether a common wrong is alleged and whether a common question of law
or fact exists in the case for all class members. Lenders Title, supra. If so, the next issue is
whether the common question predominates over individual questions. Id.
When deciding whether common questions predominate over other questions
affecting only individual members, this court does not merely compare the number of
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individual versus common claims. Id. Rather, this court decides if the preliminary,
overarching issues common to all class members “predominate over” the individual issues,
which can be resolved during the decertified stage of a bifurcated proceeding. Id. Thus, the
mere fact that individual issues and defenses may be raised regarding the recovery of
individual members cannot defeat class certification where there are common questions
concerning the defendant’s alleged wrongdoing that must be resolved for all class members.
Id.; USA Check Cashers of Little Rock v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002).
We turn, then, to determining whether there was a common question of law or fact
that predominated over individual issues in this case. The first question to be asked is
whether there is at least one single issue common to all members of the class. In its first
argument on appeal, Union Pacific contends that the issues that will determine the outcome
of this case require individualized consideration and are thus unsuited for class treatment.
Union Pacific frames the threshold issues in this case as being whether it engaged in unfair
and inappropriate claims settlement practices by making oral misrepresentations, forming
improper relationships of trust with the claimants, and omitting information that its claims
representatives had a duty to disclose. Union Pacific contends that these issues require
individualized examination of each settlement, which renders class treatment inappropriate.
Union Pacific further urges that the crux of the complaint is that the railroad
improperly induced injured parties to settle for less than the true value of their claim.
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Therefore, each class member’s claim depends on that party’s individual, oral dealings with
a Union Pacific claims representative. Union Pacific argues that, in each instance, the court
must ask whether the claims agent misrepresented critical facts, omitted information, misled
the claimant, or gave advice on which the claimant relied to his or her detriment. Union
Pacific contends that these issues, which form the elements of the underlying cause of
action, will be unique to every class member, and therefore, there is no one single issue that
is common to every member.
The appellees respond that the underlying question is simply whether Union Pacific
engaged in the unauthorized practice of law. They argue that the actions of the claims
representatives in enticing the claimants to settle were undertaken as part of a “common
scheme . . . that is repeated time and time again.” The appellees point to the deposition
testimony of Herb Stuart, a retired Union Pacific claims director, who stated that “the claims
department tries to develop relationships with claimants after these claims happen. It is our
intention to develop [a] relationship of trust and confidence. . . . [T]he goal is to resolve the
claim while the claimant is still unrepresented.” Therefore, the appellees contend that,
regardless of any individual questions that might arise, there is a common, predominant
scheme or plan by which Union Pacific undertakes to settle potential claims in all such cases.
Further, the appellees argue that Union Pacific is essentially asking this court to examine the
merits of each class member’s claim, which is inappropriate at the class-certification stage.
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In Williamson, a case involving the commonality requirement of Rule 23, this court
affirmed the circuit court’s denial of class certification when the alleged “common wrong”
was a purported contract between each individual class member and his or her employer,
Sanofi-Winthrop. The basis of the complaint was that Sanofi-Winthrop had created an
incentive program with its sales people and had promised to pay bonuses on the basis of the
employees’ performances. The named plaintiff, Williamson, argued that there were issues
in common for each sales person, such as the fact that they all qualified for the bonus
program, they were all Sanofi-Winthrop employees, and none of them received payment
under the program. Williamson, 347 Ark. at 93, 60 S.W.3d at 431.
However, this court pointed out that the underlying essence of the action was whether
a contract had been formed when Sanofi-Winthrop offered the incentive program and
whether each salesperson increased sales in response. The court explained that, although
it is improper to examine the merits of the underlying lawsuit, “consideration of the elements
of the underlying claim is important to determine whether any questions are common to the
class and whether those questions will resolve the issue.” Id. at 98, 60 S.W.3d at 433. This
court concluded that one element of a contract — whether there had been a meeting of the
minds such that a valid contract had been formed — required an individualized inquiry into
each party’s understanding of the terms of the alleged contract. Id. at 98, 60 S.W.3d at 434.
“Therefore, before even reaching any common question about a breach of contract, each
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potential class member would have to establish the existence of a contract between himself
and Sanofi . . . . This does not lend itself to a class action[.]” Id. at 97, 60 S.W.3d at 433
(emphasis added). Commonality was thus determined to be lacking.
In the present case, as noted above, the appellees argue that certification was proper
because each class member’s claims would be rooted in Union Pacific’s common or uniform
course of conduct in handling and settling injury and death claims. Union Pacific, however,
responds that it had no uniform scheme or policy and that each claimant was treated
individually; therefore, each claimant’s case would have to be examined to determine
whether a Union Pacific claims representative engaged in fraudulent or deceptive conduct
that amounted to the unauthorized practice of law.
Union Pacific asserts that, in order to recover, the appellees must have the settlements
and releases set aside; however, in order to do so, the appellees must prove that the releases
were fraudulently obtained by the railroad’s claims representatives. This, Union Pacific
contends, would clearly involve an examination of the representations made to each
individual class member, and answering the five questions certified as common by the circuit
court would not resolve that question. See Williamson, 347 Ark. at 98, 60 S.W.3d at 433
(consideration of the elements of the underlying claim is important to determine whether any
questions are common to the class and whether those questions will resolve the issue); Mittry
v. Bancorpsouth Bank, 360 Ark. 249, 255 n.3, 200 S.W.3d 869, 872 n.3 (2005) (same).
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The appellees, on the other hand, urge that it is unnecessary to set aside the
settlements and releases, because they have an independent action based solely on the
unauthorized practice of law, the elements of which are set out in Arkansas Bar Ass’n v.
Union National Bank of Little Rock, 224 Ark. 48, 273 S.W.2d 408 (1954), and on the
Arkansas Deceptive Trade Practices Act. As formulated by the appellees, the question is
simply whether Union Pacific and its representatives engaged in actions that only a lawyer
can perform; therefore, answering the questions certified as common by the trial court will
directly resolve the issue.
There is thus some disagreement between the parties in this case over the elements
of the underlying cause of action. It is not necessary to resolve this aspect of the
commonality question, however, because even assuming there are questions that are
common to all class members and that would give rise to a cause of action, we conclude that
it cannot be said that any such common issues predominate over individual ones. Class
certification is inappropriate where there is “no one set of operative facts [that] establishes
liability.” Baker v. Wyeth-Ayerst Labs. Div., 338 Ark. at 247, 992 S.W.2d at 800 (quoting
Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988)); see also Mittry v.
Bancorpsouth Bank, 360 Ark. 249, 200 S.W.3d 869 (2005).
The circuit court concluded that the five certified questions predominated over any
individual issues, finding that there was an “overarching course of wrongful conduct by
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[Union Pacific] involving, inter alia, the selecting, filling-in, preparation, . . . interpreting
of legal documents, [and] giving legal advice and settling personal injury claims that
predominates over individual considerations.” In reaching this conclusion, the lower court
relied on three of this court’s opinions in which we held that claims concerning the
unauthorized practice of law satisfied the predominance requirement of Rule 23: Asbury
Auto. Group, Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006); Lenders Title Co. v.
Chandler, 358 Ark. 66, 186 S.W.3d 695 (2004); and Am. Abstract & Title Co. v. Rice, 358
Ark. 1, 186 S.W.3d 705 (2004).
In Asbury Automotive, the complaint alleged that Asbury Automotive Group charged
a document preparation fee that amounted to the unauthorized practice of law. The circuit
court certified a class of all individuals who had paid such a fee during a given time frame.
On appeal, Asbury argued that the issue common to all class members did not predominate
over individual issues, and that any determination of whether it had violated the ADTPA
would require individualized inquiries because one element of the ADTPA would involve
the question of whether each individual class member relied on a car dealer’s allegedly
deceptive conduct. Asbury Auto., 366 Ark. at 610–11, 237 S.W.3d at 469. This court
rejected the argument, concluding that the predominating questions concerned the charging
of the fee and the basis for charging the fee. “These overarching issues can be resolved
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before the circuit court reaches any individual issues, such as the degree or reliance of each
class member on the misrepresentation.” Id. at 611, 237 S.W.3d at 469.
Similarly, in both Lenders Title, supra, and American Abstract, supra, class action
lawsuits alleged that the title companies’ practices of charging a fee for preparing legal
documents amounted to the unauthorized practice of law. In Lenders Title, among the
common, predominant questions of law established in the circuit court’s order granting class
certification were whether the filling in of blanks on a preprinted legal form constitute the
practice of law, whether the practices of the title company violated the ADTPA, and whether
the fee covered the preparation of legal documents or non-legal documents. Although
Lenders Title asserted that these questions required individualized consideration for each
class member, this court rejected the argument, concluding that the questions framed by the
trial court were “clearly preliminary, threshold matters that must be decided before any
individual issues can be considered.” Id. at 78, 186 S.W.3d at 702. Because these
questions were common, the fact that other individual issues existed could not be used to
defeat class certification. Id.
In American Abstract, supra, the complaint also alleged that a title company had
engaged in the unauthorized practice of law and had violated the ADTPA. There, the circuit
court found that a common wrong had been alleged against American Abstract, and that the
common issues predominated over any individual issues. American Abstract, 358 Ark. at
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9, 186 S.W.3d at 710. On appeal, American Abstract argued that there were individual issues
of reliance and damages, as well as questions regarding whether each class member sought
legal advice and whether American Abstract had given legal advice. Id.
As in Lenders Title, supra, this court rejected those arguments, explaining that the
“starting point in examining the predominance issue is whether a common wrong has been
alleged against the defendant.” Id. at 9–10, 186 S.W.3d at 710. The court noted that the
“common wrong” was whether American Abstract had violated the ADTPA by the way it
handled and charged document preparation fees for every member of the class. Despite
American Abstract’s argument that there were individual questions, such as whether and
how much interest each class member’s escrow account had earned, this court concluded
that there were issues that were common to each member of the class that could be resolved
before any of the individual issues. Therefore, the court held that the predominance element
of Rule 23 had been satisfied. Id., 186 S.W.3d at 710–11.
In each of these three cases, it was undisputed that the defendant had engaged in a
uniform practice, such as charging a document preparation fee, with the class members;
therefore, the question of whether that uniform practice constituted the unauthorized practice
law clearly predominated over any individual issues. In the present case, the appellees
complain that Union Pacific’s practices in reaching settlements with and obtaining releases
from injured individuals constituted the unauthorized practice of law. However, those
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practices varied from class member to class member. For example, probate documents were
filed in connection with the settlement and release of claims in some cases but not in others,
and the documents varied from case to case. At oral argument, counsel for the appellees
conceded that such documents were filed in court for only approximately fifteen percent of
the class members. In addition, the alleged common question of whether Union Pacific
advised claimants of their legal rights will vary from person to person. Oral representations
made to the plaintiffs by Union Pacific’s claims representatives in order to broker a
settlement would have been different in each case.
The appellees attempt to refute this point by citing the deposition testimony of Herb
Stuart, a retired Union Pacific claims director, who stated that “the claims department tries
to develop relationships with claimants after these claims happen. It is our intention to
develop [a] relationship of trust and confidence. . . . [T]he goal is to resolve the claim while
the claimant is still unrepresented.” The appellees argue that Stuart’s testimony supports a
conclusion that Union Pacific’s practices were the same with respect to every individual
claimant.
However, while Stuart may have described Union Pacific’s general plan or goal for
handling claims, his testimony does not prove that there was a common pattern of facts in
every case. To the contrary, Stuart also testified that, in evaluating cases, claims
representatives would have to consider “various factors, including how the claimants will
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present themselves, potential expenses, the investigation, the relationship with the client, and
other issues . . . that might be important.” He stated that “[e]ach case and the settlement
amount will always be different because of the different facts and circumstances.”
Clearly, there is “no one set of operative facts,” see Baker v. Wyeth-Ayerst, 338 Ark.
at 247, 992 S.W.2d at 800, that establishes Union Pacific’s liability to any given class
member. In Baker, the plaintiffs attempted to certify a class of individuals who had allegedly
suffered injury after taking the “Fen-Phen” combination of diet drugs. The circuit court
denied class certification, concluding that the plaintiffs all had different medical histories
and conditions; different situations involving informed consent, prescription amounts, and
duration of taking the drug; and different injuries and damages. This court affirmed the
denial of class certification, holding that “the only thing the plaintiffs have in common is that
they all took one or a combination of the diet drugs listed in the complaint.” Baker, 338
Ark. at 249, 992 S.W.2d at 801; see also Mittry v. Bancorpsouth Bank, supra (individualized
questions concerning the defendant’s responsibility for diminished sales prices of class
members’ bonds predominated over any common questions, rendering class certification
inappropriate); Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995) (where the only
common issue was the fact that patients had the same kind of surgical implant, but where
all other issues such as informed consent, proximate causation, and damages were different
for every class member, common issues did not predominate).
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Similarly, in the instant case, the only thing that all of the plaintiffs have in common
is that they settled a claim against Union Pacific. In short, there is no “one set of operative
facts” that may or may not have constituted the unauthorized practice of law or a violation
of the ADTPA. Accordingly, we conclude that there is no common question of law or fact
that predominates over the questions affecting only individual class members.
This court has noted that a trial court has broad discretion to allow or disallow an
action to proceed as a class action. However, we have never held that a trial court’s
discretion is “so broad that it cannot be the subject of a proper review.” Arthur v. Zearley,
320 Ark. at 289, 895 S.W.2d at 936-37. In this case, we hold that the circuit court abused
its discretion in certifying a class action, and we reverse and remand with instructions to
decertify the class.4
Special Justice JENNIFER WILSON-HARVEY joins.
IMBER, J., dissents.
GUNTER, J., not participating.
ANNABELLE CLINTON IMBER, Justice, dissenting. I respectfully dissent. In my view,
the majority opinion fails to abide by two of our most strongly held principles of classcertification review: an abuse-of-discretion standard of review that is highly deferential to
the circuit court’s order, and a refusal to delve into the merits of the underlying claims. The
4
Because we reverse on Union Pacific’s first argument, we do not reach the
remainder of the issues it raised on appeal.
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result is a higher burden of proof than we have previously required in demonstrating
predominance of common issues.
The majority acknowledges that, in reviewing a certification decision, it is “totally
immaterial whether the petition will succeed on the merits or even if it states a cause of
action.” Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004). Yet,
the majority implies that this case is unsuitable for class treatment because Appellees have
failed to prove that Union Pacific acted in conformity with its stated plan for settling claims
in every case. In fact, the majority makes a distinction between demonstrating the existence
of a plan or scheme and proving that the plan was adhered to in every instance, suggesting
that the former has been done while the latter has not. I submit that Appellees are not
required to prove, at this stage, that similar representations were made in every settlement
negotiation. They have demonstrated, through the deposition testimony of Herbert Stuart,
former director of Union Pacific’s claims department, that Union Pacific had developed a
“consistent pattern and practice” for settling claims. This is sufficient for class certification.
More particularly, Stuart testified that the railroad had a pattern of meeting with
potential claimants, usually within twenty-four to forty-eight hours of an accident, with the
goal of resolving claims while the potential claimants were “still unrepresented” by legal
counsel. In the negotiations, claims representatives attempted to establish relationships of
trust and confidence with potential claimants and prepared settlement documents to be filed
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in court. Stuart further testified that the railroad had a consistent pattern and practice of not
sharing information gathered in investigations unless specifically requested by the claimant.
According to Stuart, the goal was to save money “in the area of the additional expenses, and
the claim rep time, and the risk avoidance.” Other evidence in the record establishes that
claims representatives routinely discouraged potential claimants from employing legal
counsel. Specifically, the proposed class representatives testified that they were told that “a
lawyer wouldn’t do you any good” and that “if you get a lawyer, you probably wouldn’t . .
. get a certain amount . . . because most of it would go to the lawyer’s fee.” Additionally,
questionnaires completed by potential class members for purposes of the lawsuit showed that
a number of potential claimants were told that they could not hire an attorney, that “it
wouldn’t do any good” to hire an attorney, and that an attorney would “get all the money.”
Some potential claimants believed that the Union Pacific claims representative with whom
they negotiated was acting as their attorney. According to Stuart’s deposition testimony,
claims representatives clarified that they were not lawyers only when asked.
We have previously affirmed findings of predominance when the underlying
allegations concerned an overall scheme and course of conduct. See, e.g., SEECO, Inc. v.
Hales, 330 Ark. 402, 954 S.W.2d 234 (1997). In the SEECO case, plaintiffs asserted various
claims rooted in an alleged failure to enforce the provisions of a gas-sales contract and
sought damages on several theories, including fraud, breach of contract, and civil conspiracy.
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Id. at 404–06, 954 S.W.2d at 235–36. This court affirmed the trial court’s grant of class
certification, noting that the issue of a fraudulent scheme was “central” and “a common
starting point for all class members.” Id. at 412, 954 S.W.2d at 240. We held that “[t]he
overarching issue which must be the starting point in the resolution of this matter relates to
the existence of the alleged scheme.” Id. at 414, 954 S.W.2d at 241 (emphasis added). The
same may be said of the instant case. The overarching issue, which predominates over all
others, is Appellees’ allegation that Union Pacific’s pattern and practice of settling claims
amounted to the unauthorized practice of law and an ADTPA violation. In other words, it
is the existence of the alleged scheme that is the starting point in the resolution of Appellees’
claims against Union Pacific. Thus, the case involves “preliminary, common issues of
liability and wrongdoing that affect all class members,” and the circuit court may
subsequently resolve individual issues in bifurcated proceedings. Gen. Motors Corp. v.
Bryant, 374 Ark. 38, 44, 285 S.W.3d 634, 639 (2008).
The majority also seems to suggest that class treatment is inappropriate because the
question of whether Union Pacific engaged in uniform settlement practices is disputed. The
opinion points to our decisions in Lenders Title Co. v. Chandler, 358 Ark. 66, 78, 186
S.W.3d 695, 702 (2004), and other similar cases, wherein the defendant’s practice of
charging a document preparation fee was characterized as “admitted.” In my mind, this is
a distinction without a difference. Like the defendants in Lenders Title, American Abstract
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& Title Co. v. Rice, supra, and Asbury Automotive Group, Inc. v. Palasack, 366 Ark. 601,
237 S.W.3d 462 (2006), Union Pacific has effectively admitted to a common plan. It only
disputes the allegation that its claims representatives consistently adhered to this plan, and
the majority seems to prematurely decide the merits of this dispute. To require Appellees at
this stage to meet proof with proof and disprove Union Pacific’s assertion that it did not
consistently adhere to a plan is to engage in a premature merits determination. We have
repeatedly refused to impose such a burden at this early stage.
The majority opinion quotes from our decision in Baker v. Wyeth-Ayerst Laboratories
Division, 338 Ark. 242, 247, 992 S.W.2d 797, 800 (1999), in holding that “no one set of
operative facts” establishes Union Pacific’s liability. Interestingly, that quote originated from
a discussion in a Sixth Circuit opinion addressing the complexity of individual issues
presented by toxic-tort and products-liability cases as opposed to mass-accident cases, where
injuries are caused by a single catastrophic event occurring at one time and place. See
Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988). The Sixth Circuit held in
Sterling that, “[i]n complex, mass, toxic tort accidents, where no one set of operative facts
establishes liability, no single proximate cause equally applies to each potential class member
and each defendant, and individual issues outnumber common issues, the district court
should properly question the appropriateness of a class action for resolving the controversy.”
Id. at 1197. These types of cases were distinguished from mass-accident cases, where “the
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cause of the disaster is a single course of conduct which is identical for each of the
plaintiffs.” Id. The language was quoted in Baker for the same proposition, and we noted
that “we have been more inclined to approve class certification in mass-accident cases than
in products-liability or toxic-tort cases.” 338 Ark. at 247, 992 S.W.2d at 800. Outside of that
framework, we have been decidedly more flexible than the federal courts, holding that issues
of causation will not bar a finding of predominance and that, in determining predominance,
we do not merely compare the number of individual versus common issues. Gen. Motors
Corp. v. Bryant, supra.
Finally, and most importantly, I cannot agree with the majority’s conclusion that the
circuit court’s order in this case amounted to an abuse of discretion. It is telling that the
cases relied upon in the majority opinion are those in which we have affirmed a circuit
court’s denial of class certification. See Mittry v. Bancorpsouth Bank, 360 Ark. 249, 200
S.W.3d 869 (2005); Williamson v. Sanofi Winthrop Pharm., Inc., 347 Ark. 89, 60 S.W.3d
428 (2001); Baker v. Wyeth-Ayerst Labs. Div., supra. Under our abuse-of-discretion
standard of review, reversing a grant of class certification is another matter altogether. We
took special care in Williamson v. Sanofi Winthrop Pharmaceuticals, Inc., to point out that
“this court reviews class-action certifications or denials under an abuse-of-discretion
standard, and we will not reverse the trial court’s decision unless the appellant can
demonstrate that the court abused its discretion in reaching its decision.” 347 Ark. at 101,
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60 S.W.3d at 436. However, because we could not say that the trial court had abused its
discretion in denying class certification, we affirmed the denial. Id. I cannot say that the
circuit court in the instant case abused its discretion in granting class certification, and I
believe that the majority errs in engaging in a merits analysis to reach the conclusion that it
did. For these reasons, I must dissent.
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