Philip Morris Inc. v. Angeletti

CATHELL, Judge,

dissenting.

I would deny the petition for writ of mandamus and/or prohibition.

“[T]he writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations ... [and] only ‘exceptional circumstances amounting to a judicial “usurpation of power” ’ will justify issuance of the writ.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 , 108 S.Ct. 1133, 1143 , 99 L.Ed.2d 296 (1988); see Goodwich v. Nolan, 343 Md. 130, 146 , 680 A.2d 1040, 1048 (1996) (“[J]udicial review is properly sought through a writ of mandamus ‘where there [is] no statutory provision for hearing or review and where public officials [are] alleged to have abused the discretionary powers reposed in them.’ ” (second and third alterations in original) (quotation omitted)). Maryland Rule 2-231 entrusts to the trial judge in the first instance the decision to certify a class. This, the trial judge has done in this case. Moreover, that decision has come early in the litigation process.

Under these circumstances, the granting of the petition, in my opinion, negatively impacts the ability of the Circuit Court for Baltimore City to manage its own docket. Just as important, by granting the writ of mandamus and rejecting the trial court’s class certification at this early stage of the proceeding, this Court improperly substitutes its discretion for that of the trial judge and, because it does not accord the trial judge the proper deference, tends to undermine the judicial process, Maryland Rule 2-231, and the finality doctrine. In addition, if the circumstances sub judice justify issuance of an extraordinary writ, then virtually every certification order will produce a petition for issuance of an extraordinary writ, alleging *790 perceived problems with the defining of the class. That could, in turn, result in the creation of a “yo-yo” system of class action suits in which no class action will be certified until this Court says it should be.

I. Writ of Mandamus

As we have seen, the writs of mandamus and prohibition are “extraordinary” writs, which are to be used in only the most extreme cases of discretionary abuse. 1 We addressed the prerequisites of such writs in Goodwich, 343 Md. at 145 , 680 A.2d at 1047 :

[The writ of mandamus] is “not a substitute for appeal or writ of error.” In re Petition for Writ of Prohibition, 312 Md. 280, 306 , 539 A.2d 664, 676 (1988). It is, however, “an extraordinary remedy[,]” Ipes v. Board of Fire Commissioners of Baltimore, 224 Md. 180, 183 , 167 A.2d 337, 339 (1961), “that ... will not lie if [there is] any other adequate and convenient remedy[.]” A.S. Abell Co. v. Sweeney, 274 Md. 715, 718 , 337 A.2d 77, 79 (1975) (quoting Applestein v. Baltimore, 156 Md. 40, 45 , 143 A. 666, 668 (1928)). Mandamus is generally used “to compel inferior tribunals, public officials or administrative agencies to perform their function, or perform some particular duty imposed upon them which in its nature is imperative and to the performance of which duty the party applying for the writ has a clear legal right.” Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 514 , 331 A.2d 55, 72 (1975); see also George’s *791 Creek Coal & Iron Co. v. County Commissioners, 59 Md. 255, 259 (1883). The writ ordinarily does not lie where the action to be reviewed is discretionary or depends on personal judgment. [Second, third and fourth alterations in original.]

See also Board of Supervisors v. County Comm’rs, 200 Md. 114, 116 , 88 A.2d 462, 463 (1952) (“The writ of mandamus is an extraordinary remedy afforded to prevent a failure of justice and to preserve peace, order and good government. Mandamus is not available except where the petitioner has a clear legal right to compel performance of a certain positive duty by the respondent and where the law affords no other adequate remedy.” (citation omitted)); Pressman v. Elgin, 187 Md. 446, 451 , 50 A.2d 560, 563 (1947) (“[M]andamus ... was issued only by exercise of the extraordinary power of the Crown on proper cause shown.”).

Though the writ of mandamus traditionally has served an extremely limited role, this Court has noted the expanded role of the writ in appellate supervisory review:

“Some commentators have said that under what they view as the traditional approach, writs appropriately issue ‘only to control actions beyond the jurisdiction of an inferior court, or to compel action that the court lacked power to withhold.’ But, according to Wright, in recent times the use of the extraordinary writ has ‘broadened to include use of the writs to correct clear abuse of discretion, and more recently ... to satisfy other peculiar needs for interlocutory review.’ ”

“Earlier commentators, however, recognized that a prerogative writ could issue to control actions of a lower court that were not jurisdictional in nature. As to mandamus, Blackstone asserts that it is designed to ‘enforce the due exercise of those judicial ... powers, with which [inferior courts are invested] ... not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice.’ ... The same remedy is available ‘if, in handling of matters clearly within their *792 cognizance, they transgress the bounds proscribed to them by the laws of England....’”

In re Petition for Writ of Prohibition, 312 Md. 280, 306-07 , 539 A.2d 664, 676-77 (1988) (citations omitted) (alteration in original).

Thus, the law has evolved so that a writ may be issued by this Court to vacate an order of a lower tribunal that constitutes an “abuse of discretion.” In the context of appeal, we have defined an abuse of discretion as an instance “where no reasonable person would take the view adopted by the trial court, or when the court acts without reference to any guiding rules or principles. An abuse of discretion may also be found where the ruling under consideration is clearly against the logic and effect of facts and inferences before the court, or when the ruling is violative of fact and logic.” In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 , 701 A.2d 110, 118-19 (1997) (internal quotations and alterations omitted).

“Abuse of discretion” sufficient to justify issuance of “extraordinary” writs means more than making an erroneous or illogical decision, however; it is different in magnitude than that required to be shown to obtain reversal on appeal. In re Catawba Indian Tribe, 973 F.2d 1133 (4th Cir.1992); Banov v. Kennedy, 694 A.2d 850 (D.C.1997). In Banov , the District of Columbia Court of Appeals stated that “[a]buse of discretion sufficient for reversal in an appeal is not enough to warrant mandamus; for mandamus to issue, a decision [ (of the lower court) ] must qualify as ‘usurpation of judicial power.’ ” 694 A.2d at 858 (quotation omitted). Similarly, the United States Court of Appeals for the Fourth Circuit has observed that a party seeking mandamus “must make the most difficult showing, that of an abuse of discretion amounting to a usurpation of the judicial power, before mandamus will lie to replace the district court’s decision.” Catawba Tribe, 973 F.2d at 1136 ; see also Armstrong v. Martin Marietta Corp., 138 F.3d 1374 , 1386 & n. 23 (11th Cir.1998) (referring to the “clear abuse of discretion” standard: “A district court’s class certification decision, in and of itself, will constitute a ‘clear usurpation of *793 power’ or a failure to carry out a ministerial task only in the most unusual of circumstances.”).

Thus, a trial court’s order granting class certification, even if incorrect and even if the facts are as are alleged by petitioners, without more, should not trigger the granting of an extraordinary writ. Otherwise, there will be a significant further expansion of the extremely limited use of extraordinary writs by appellate courts for regulatory purposes. The Missouri Court of Appeals, in State ex rel. Byrd v. Chadwick, 956 S.W.2d 369, 376 (Mo.Ct.App.1997), stated: “In [issuing the writ], we do not direct the trial court as to how it will exercise its discretion, but rather direct it as to what determinations it must make, and then allow it to make those determinations following issuance of our vwit.” The Tennessee Supreme Court has agreed. See Meighan v. United States Sprint Communications Co., 942 S.W.2d 476 (Tenn.1997) [hereinafter Meighan II ]. (Quoting 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 742, at 7-128 to 7-129 (3d ed.1992)), the Meighan II court stated:

Mandamus is appropriate for abuses of discretion, rather than misinterpretations of questions of law. It may lie if the [trial] court, in determining propriety of the class action, acts outside its jurisdiction, without regard to applicable procedural safeguards, or applies or refuses to apply the criteria of [Federal] Rule [of Civil Procedure] 23 in an arbitrary manner.[ 2 ] However, if a district court has acted within its jurisdiction according to procedural safeguards and applies the criteria of Rule 23 in a nonarbitrary manner, mandamus is inappropriate to secure a de novo review of the ruling on the class.

Meighan, 942 S.W.2d at 481 ; cf. In re NLO, Inc., 5 F.3d 154, 159-60 (6th Cir.1993) (“Assuming arguendo that the district court’s certification under [Federal] Rule [of Civil Procedure] 23(b)(2) is erroneous, it is not so clearly erroneous ... that mandamus is the proper remedy.”).

*794 Some of the cases relied upon by petitioners in this case provide examples of trial courts applying class action criteria in an arbitrary manner. The class certification order in In re American Medical Systems, Inc., 75 F.3d 1069, 1076-77 (6th Cir.1996), indicated that the plaintiffs had proven the “commonality” element because they had “a common right to assert a claim against [defendants” and the “typicality” element because “all plaintiffs allege[d] injury” by the defendants’ products. The Sixth Circuit granted the writ, holding that the trial court order was so vague as to constitute a “disregard of the federal rules.” Id. at 1088,1090 .

Ex Parte Green Tree Financial Corp., 684 So.2d 1302, 1307 (Ala.1996), involved a class certification in which the trial court “entered an order based upon little or no evidentiary underpinnings.” The Alabama Supreme Court was concerned that the order “merely parrot[ed]” the language of the class action rule and had illegally ordered both a mandatory and an “opt-out” class. Id. It held, relying in part on its earlier decision in Ex Parte Blue Cross & Blue Shield, 582 So.2d 469, 476-77 (Ala.1991), in which mandamus was issued to vacate an order for certification when neither party moved to proceed by way of class action or produced any evidence to justify so proceeding, that such circumstances warranted the granting of a writ. See Ex Parte Green Tree, 684 So.2d at 1305 .

In these cases, there was a blatant disregard of the applicable rule. Following their teaching, this Court should issue the writ only upon a blatant disregard of Maryland Rule 2-231. There was no blatant disregard of Maryland Rule 2-231 in this case. On the contrary, the circuit court reviewed, and applied, the procedural elements of that rule to the circumstances of the multiple claims before it. It simply did not abuse its discretion to so extreme an extent as to constitute an usurpation of judicial power. As I perceive it, whether the trial court made the correct choice, which is, in part, what the majority focuses on, is not yet properly before us.

II. Trial Court Discretion

The only guidance provided to this State’s circuit court judges to assist them in determining whether to certify a class *795 is contained in Maryland Rule 2-231. That Rule requires trial judges to exercise independent judgment in making that decision. It is not in the interest of the Maryland judicial system to discourage trial judges from utilizing discretion when applying basic procedural rules. The wording of Rule 2-231, the history of its adoption, and the relevant case law make it apparent that that is not what this Court intended when it adopted the Rule. Accordingly, striking of the trial court’s class certification at this stage of the proceedings is inappropriate.

Rules of practice and procedure are interpreted in the same manner as a statute, that is, the same canons of construction apply in both cases. See, e.g., State v. Bell, 351 Md. 709, 717 , 720 A.2d 311, 315 (1998); New Jersey v. Strazzella, 331 Md. 270, 274 , 627 A.2d 1055, 1057 (1993). Thus,

“[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995). Legislative intent must be sought first in the actual language of the statute. Where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts normally do not look beyond the words of the statute to determine legislative intent.

Id. at 717-18, 720 A.2d at 315 (some citations omitted).

Maryland Rule 2-231(c) states:

(c) Certification. On motion of any party or on the court’s own initiative, the court shall determine by order as soon as practicable after commencement of the action whether it is to be maintained as a class action. A hearing shall be granted if requested by any party. The order shall include the court’s findings and reasons for certifying or refusing to certify the action as a class action. The order may be conditional and may be altered or amended before the decision on the merits.

The rule is plain and unambiguous. Rule 2-231 not only grants trial judges discretion to certify class actions, but it directs them to: “determine by order as soon as practicable *796 after commencement of the action whether it is to be maintained as a class action.” Id. As worded, subsection (c) clearly demonstrates the intent of this Court to give trial judges the discretion and authority to certify class actions. Rule 2-231(c) also provides guidelines for a trial judge to follow in ordering or denying class certification: the court’s findings and reasons for certifying or refusing to certify the action as a class action must be included in the court’s order. Whether correct or not in this case, the trial judge’s memorandum opinion concerning the class certification, clearly undertakes to address the procedural aspects of this rule.

Maryland Rule 2-231(c), by providing that the “order may be conditional and may be altered or amended before the decision on the merits,” also addresses concerns and questions that may arise as to the size, limitations and management of the class. It allows a trial court to expedite litigation of a class action when the parameters of the class have not yet been finalized. The Rule contemplates, in other words, that the determination of class certification be under the continued scrutiny of the trial judge. Thus, the trial court is given discretion, and is expected, to expand or whittle down the class as it sees fit; it is given the ability to amend a certified class to more appropriate limits, as circumstances occurring during the pre-trial proceedings dictate. Therefore, rather than a petition for an extraordinary writ, the better corrective measure for an oversized or inaccurate class is a motion, directed to the trial judge, to amend the certification order.

“The ... language [of the Rule] is not read in isolation, but ‘in light of the full context in which [it] appear[s], and in light of external manifestations of intent or general purpose available through other evidence.’ ” Stanford v. Maryland Police Training & Correctional Comm’n, 346 Md. 374, 380 , 697 A.2d 424, 427 (1997) (alterations in original) (quoting Cunningham v. State, 318 Md. 182, 185 , 567 A.2d 126, 127 (1989)). Looking at it in light of the full context in which it appears, Title 2, “Civil Procedure—Circuit Court,” reveals that Rule 2-231, by design, contemplates that the circuit court exercise discretion in making the decision that the rule addresses. Without any *797 doubt, the all-inclusive wording of Maryland Rule 2-231 places the determination, in the first instance, of class certification with the circuit court judges.

“When we pursue the context of statutory language, we are not limited to the words of the statute as they are printed... . We may and often must consider other ‘external manifestations’ or ‘persuasive evidence,’ including a bill’s title and function paragraphs, amendments that occurred as it passed through the [enactment process], its relationship to earlier and subsequent [rules], and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.”

Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 514-15 , 525 A.2d 628, 632-33 (1987).

The history of Rule 2-231’s promulgation provides additional evidence of its intended meaning. In the early 1960’s, this Court adopted Maryland Rule 209, thereby addressing the need for a class action. See generally Memorandum from Neil Tabor to William H. Adkins and Clinton Bamburger on Class Actions (June 16, 1961) (on file with the Rules Committee). “[T]he primary purpose of this rule is to overcome the impracticalities of overtly cumbersome joinder requirements.” Kirkpatrick v. Gilchrist, 56 Md.App. 242, 249 , 467 A.2d 562, 566 (1983); see also Tabor Memorandum, supra. The Court of Appeals Standing Committee on Rules of Practice and Procedure (the Rules Committee) patterned Maryland Rule 209, not after Federal Rule of Civil Procedure 23, but after a generally formatted proposal for a similar rule in New York. See Minutes of the Rules Committee, at 25 (May 11-12, 1979). Rule 209 was adopted to codify the right to maintain a class action, as the Rules Committee recommended, and, so, this Court used general, rather than specific language. See Md. Rule 209 (1982).

In the early 1980’s, the Rules Committee proposed changes to the rule designed to eliminate jurisdictional and statutory shortcomings, eventually resulting in the adoption of the pres *798 ent rule. Minutes of the Rules Committee, at 14-16 (Nov. 21, 1980). The overriding goal of the proposal was to ensure a class certification process “generally requiring that a judge should give early consideration to the question of whether a class action should be maintained. The timing of this determination could be left to the trial judge’s discretion.” Id. at 19.

It is apparent from this history that the rule was recommended and adopted as a tool for the trial court to advance efficiency by (1) allowing class actions and (2) giving the trial courts the power to administer them. It is clear that it was the intention that the trial court’s class certification decision be given due deference. Expedition of litigation is an expected result of increased court efficiency. Yet, granting the writ requested here subjects the class certification decision to the possibility of being bogged down immediately in a pretrial appellate process seeking mandamus review. That is counterproductive and inconsistent with the intent of Rule 2-231.

This Court and the Court of Special Appeals both have previously interpreted the rule as giving great deference, at least at the preliminary stages, to a trial judge’s class certification decision. In Bender v. Secretary, Maryland Department of Personnel, 290 Md. 345 , 430 A.2d 66 (1981), the issue was whether certain parties were necessary parties and, thus, had to be added by amendment or class certification. Rather than answering that question ourselves, we remanded the case to the trial court for a decision as to whether a class certification was appropriate. Id. at 356 , 430 A.2d at 72-73 . This Court then acknowledged that the determination whether class certification is appropriate is a question better left, at least initially, to the trial judge’s discretion.

The samé rationale was later utilized by the Court of Special Appeals in Kirkpatrick, supra. That court held that a trial judge should not have dismissed an action based on lack of necessary parties without also ruling on a motion for class action certification. “The message suggested to us by Bender apropos to our present concern, is that the trial judge should have decided appellee[’s] renewed request for ruling on class *799 action before or concurrently with the ruling on the appellants’ motion for preliminary relief predicated upon want of necessary parties.” 56 Md.App. at 250 , 467 A.2d at 566 .

The Court of Special Appeals logically concluded that certification of a class is an issue initially left to the trial judge. Following Bender , the intermediate appellate court remanded the case, allowing the trial court to determine whether class certification was appropriate. Although, in that regard, the court suggested courses of action for the trial judge to take after determining whether the certification was appropriate, id. at 250-51, 467 A.2d at 567 , it was clear in stating that, on that score, it “by no means suggested] the conclusion to be reached... . ” Id.

Bender and Kirkpatrick illustrate that Maryland’s appellate courts have resisted treading, prior to finality, on territory generally left to the discretion of the trial court, absent extraordinary circumstances amounting to a usurpation of power. In both cases, the appellate courts treated the class certification decision as a discretionary matter to be decided by the trial judge.

Petitioners rely heavily on Amchem Products, Inc. v. Windsor, 521 U.S. 591 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997), a case in which the Supreme Court overturned a trial court order that hastily certified a class for settlement purposes without properly analyzing and applying the class action rule. That case, however, is distinguishable. In Amchem Products, the Supreme Court feared that the trial judge did not use any discretion in certifying the class because “within the space of a single day ... the settling parties ... presented to the District Court a complaint, an answer, a proposed settlement agreement, and a joint motion for conditional class certification.” Id. at 601-02 , 117 S.Ct. at 2239 , 138 L.Ed.2d 689 . The Supreme Court’s concern in Amchem Products was the haste with which the certification determination was made. We do not have the same procedural concerns here. The record clearly shows that, in the case sub judaíce, the trial judge used discretion and seriously considered the certification issues; in *800 a deliberate manner, he exercised his discretion. Indeed, the majority does not take issue with the manner in which the trial court exercised discretion, only the result of that exercise of discretion.

Whether his determinations are correct or not, the process the trial judge used to arrive at them, was clearly correct. When there is evidence, as in Amchem Products, that a trial court did not take the proper steps to certify a class, then there may be some evidence of an abuse of discretion and, therefore, justification for issuing mandamus. That is not the case here.

The trial court’s exercise of discretion in formulating the issues and scope of class actions is not final until, at least, the commencement of the trial on the merits. In fact, it may not achieve finality until final judgment is rendered. As I see it, the view espoused by the majority makes the trial court’s exercise of discretion, even at the very beginning of the proceedings, a final exercise of discretion. This is inconsistent with Rule 2-231 and with the view taken by courts in other jurisdictions.

In consolidated appeals after final judgment had been entered, the District of Columbia Court of Appeals recognized the importance of allowing a trial court wide discretion in reviewing certifications of class actions:

When seeking class certification, a plaintiff must meet each of the four requirements of Super. Ct. Civ. R. 23(a)----[ 3 ] The party seeking certification has the burden of showing that the request for class certification complies with the requirements of the rule. Whether that burden has been met is a matter entrusted to the trial court’s discretion, and its decision will not be reversed unless that discretion has been abused.

Cowan v. Youssef, 687 A.2d 594, 602 (D.C.1996) (footnote omitted) (citing Yarmolinsky v. Perpetual Am. Fed. Sav. & *801 Loan Ass’n, 451 A.2d 92 , 94 (D.C.1982)); see also In re NLO, Inc., 5 F.3d at 157 (stating that trial courts “unquestionably have substantial inherent power to manage their dockets.”); Ex Parte Gold Kist, Inc., 646 So.2d 1339, 1341 (Ala.1994) (noting that “class certification is generally left to the sound discretion of the trial court.”).

The Supreme Court of Tennessee has also held that it is generally premature for an appellate court to second guess a trial judge’s exercise of discretion in certifying a class: “the determination of whether an action should proceed as a class action is a matter which is left to the sound discretion of the trial judge. Only upon a finding of an abuse of that discretion should the trial judge’s decision be modified on appeal.” Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 637 (Tenn.1996) [hereinafter Meighan I ] (emphasis added) (citing Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir.1988)). That court pointed out as well that “[i]t is well established that the existence of separate issues of law and fact, particularly regarding damages, do not negate class action certification.” Id.; see also Amendments to Rules of Civil Procedure, 39 F.R.D. 69 , 103 (1966) (noting that an act of fraud against numerous persons is an “appealing situation” for a class action suit, despite the separate level of damages each party may have). Reflecting on the trial judge’s ability to amend and change the limits of the class, the Meighan I court stated: “it is properly the trial court’s prerogative to make the initial determination of and any subsequent modifications to class certification. The trial court retains significant authority to redefine, modify, or clarify the class.” Meighan I, 924 S.W.2d at 637 .

III. Class Certification

The prerequisites to a class action are outlined in Rule 2-231:

(a) Prerequisites to a 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 ques *802 tions 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 will fairly and adequately protect the interests of the class.

(b) Class actions maintainable. Unless justice requires otherwise, an action may be maintained as a class action if the prerequisites of section (a) are satisfied, and in addition:

(3) 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. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions, (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum, (D) the difficulties likely to be encountered in the management of a class action.

Subsection (a)(1) requires, for class certification, that the class be so numerous that joinder of all members is impracticable. In the case sub judice, the plaintiffs allege, petitioners do not contest, and the trial judge determined, that the class consists of tens of thousands of Maryland citizens. Clearly, a class of that size would justify class certification. But, for our purposes, whether his determination is correct or not, the trial judge did address this factor.

To meet the requirements of Rule 2-231(a)(2), there must be found to be questions of law or fact common to the class. When initially considering the issue of commonality, the standard is relatively low because the “ ‘commonality’ requirement is subsumed under, or superseded by, the more stringent [Federal] Rule 23(b)(3) requirement that questions common to the class ‘predominate over’ other questions.” See Amchem *803 Prod., 521 U.S. at 609 , 117 S.Ct. at 2243 , 138 L.Ed.2d 689 . Generally, therefore, this requirement is relatively easy to satisfy and “there need be only a single issue common to all members of the class.” 1 Newberg, supra, § 3.10, at 3-50.

In the case sub judice, the plaintiffs’ complaint and class certification motion allege numerous questions of law and fact that may be common to the class, including whether cigarettes and smokeless tobacco products are addictive, whether the defendants manipulated nicotine levels in their products, whether the defendants conspired to conceal and distort the results of their tobacco research, and whether affirmative defenses are available. It is the function, initially, of the trial judge to determine whether there are significant “ ‘issues involved [that] are common to the class as a whole’ and ... ‘turn on questions of law applicable in the same manner to each member of the class.’ ” General Tele. Co. v. Falcon, 457 U.S. 147, 155 , 102 S.Ct. 2364, 2369 , 72 L.Ed.2d 740 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 701 , 99 S.Ct. 2545, 2557 , 61 L.Ed.2d 176 (1979)). Again, whether correctly or not, these issues were addressed by the trial judge.

Rule 2-231(a)(3) requires a factual finding that the claims or defenses of the representative parties are typical of the claims or defenses of the class. “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.” 1 Newberg, supra, § 3.10 at 3-77. The plaintiffs in the case sub judice, at the least, allege a common course of deceptive conduct by defendants that was designed to create and sustain addiction to nicotine. Again, regardless of the correctness of his ruling, the trial judge addressed the issue.

Rule 2-231(a)(4) requires the trial judge to find that the representative parties will fairly and adequately protect the interests of the class. Petitioners contend that this requirement was not met because an impermissible conflict of interest prevents class counsel from adequately representing the puta *804 tive class. The trial judge considered this argument and ruled that there was no impermissible conflict of interest. His rationale was that the issue of this type of dual representation had been implicitly approved by this Court. See Attorney Grievance Comm’n v. Harlan, 320 Md. 571 , 578 A.2d 1196 (1990). Additionally, “[a] possible conflict does not itself preclude the representation.” Md. Rule of Professional Conduct 1.7 cmt. Whether ultimately determined on review to be correct or not, this finding was neither an abuse of discretion nor an usurpation of power.

In addition to meeting the four requirements of subsection (a), a class action must also fall within one of the four categories contained in subsection (b) of Maryland Rule 2-231. The trial judge determined that the plaintiffs met the requirements of Maryland Rule 2—231(b)(3), which requires the court to find “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.” The judge, as required to do, considered both whether the issues predominate and whether a class action is the superior way to handle this case. With respect to whether a class action was the superior method available for the fair and efficient handling of the case, for example, the trial judge considered whether the class members would be better off handling their own lawsuits, whether existing litigation is so prolific that it would defeat the purpose of class action, whether all litigants should be forced into court, and whether the litigation is manageable as a class action. Whatever may be said as to the correctness of his conclusion, the trial judge certainly did not ignore the issue.

Had the trial judge not exercised discretion at all, I might perceive that issuance of an extraordinary writ was in order. Petitioners, however they couch the issue, ask us to preliminarily assess the correctness of the judge’s exercise of discretion, not whether it was exercised. Correctness of the ruling, as I see it, is a matter for review in the normal appellate process. At that time, our review will be of the “final” class of *805 litigants that results from the trial judge’s continued supervision and modification of the class.

Nor is there a basis in this record for concluding that the trial judge usurped his judicial authority. The trial judge’s memorandum opinion, whether correct or not, is comprehensive, detailed, and specific, demonstrating only a deliberate effort to comply with Maryland Rule 2-231. The only rationale for decertifying this class at this point is that the majority would arrive at a different conclusion than the trial court on the set of facts presented. This, in my view, is neither a good nor a sufficient reason.

By the time this case would arrive here in the normal course, the facts established at trial may well be manifestly different, and the class may be different as well, as the trial court modifies and narrows the class in accordance with the pretrial development of the facts. The trial court’s ultimate decision as to the size of the class might well be satisfactory to the entire Court. We will never know as the majority usurps the trial court’s role in the process. This Court, as I see it, should not substitute its discretion for that of the trial judge, or determine that the trial judge has abused his discretion, at this early stage of the proceeding, when the exercise of discretion is supposed to be continuing, so that the final decision of the trial court may, or may not, be an abuse of discretion.

To hold otherwise sets a dangerous precedent. First, it improperly replaces the trial court’s discretion with ours. Second, the situation may, in the end, not warrant such an extraordinary remedy. It also might serve to deny to the trial judge the initial deference in such matters to which the trial courts are entitled and might render the application of Rule 2-231 subject to a “y°-yo” system of appeals from class action certifications where the appellate courts, not trial courts, will end up certifying classes.

In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir.), cert. denied, 516 U.S. 867 , 116 S.Ct. 184 , 133 L.Ed.2d 122 (1995), cited by petitioners as a leading case in which manda *806 mus was issued to vacate a class certification, provides an example of how appellate courts become involved in this “yo-yo” pretrial appeal process, ultimately weakening the final judgment rule. On remand from the grant of the writ, the trial court in that case apparently certified a new class. The defendants, having tasted victory in the first mandamus proceeding, challenged the plaintiffs’ schedule of expert witnesses by again petitioning to the Seventh Circuit for the writ, which was refused. See generally In re Rhone-Poulenc Rorer Pharm., Inc., 138 F.3d 695 (7th Cir.1998).

In another example, In re School Asbestos Litigation, 789 F.2d 996 (3d Cir.1986), 4 the Third Circuit, hearing an interlocutory appeal under 28 U.S.C. § 1292 (b), upheld a mass tort class certification for compensatory damages only. The defendants later moved to decertify the class, which the trial court denied. They petitioned the Third Circuit for a writ of mandamus to vacate the order, but the writ was denied. See generally, In re School Asbestos Litigation, 921 F.2d 1338 (3d Cir.1990). Later, the trial court denied the defendants’ motion for partial summary judgment. The defendants for the third time petitioned the Third Circuit for a writ to overturn the trial court’s order. See generally In re Asbestos School Litigation, 46 F.3d 1284 (3d Cir.1994).

These examples reflect exactly what can happen in class action lawsuits if this Court modifies the final judgment rule as it pertains to pretrial class action decisions. Every defendant in major civil litigation who is disappointed by an important pretrial ruling will contend that that defendant’s case presents extraordinary circumstances justifying early appellate intercession. Holding that the writ should issue here confers on such defendants the power to stall. In turn, plaintiffs and witnesses will die, become impossible to locate, or their memories will fail. Evidence will disappear or be *807 destroyed with time. Plaintiffs will become discouraged and drop their suits or simply run out of money to fund them. At the same time, this Court will become more and more involved with supervising pretrial matters in major civil litigation. That is not the role we should assume except in the most extraordinary circumstances.

Chief Judge BELL and Judge RODOWSKY have authorized me to state that they concur with the views expressed herein.

. A writ of prohibition is inappropriate in this case. The class action certification order being challenged in this case has already been issued. A writ of prohibition can only be issued to prevent the lower court from entering an order. Once an order, including an order for class certification, is entered, the writ is no longer available. See, e.g., Bates v. McNeil, 318 Ark. 764, 767 , 888 S.W.2d 642, 644 (1994); Sparkman v. McClure, 498 So.2d 892, 895 (Fla. 1986); State ex rel. McDonnell Douglas Corp. v. Gaertner, 601 S.W.2d 295, 296 (Mo.Ct.App.1980); State ex rel. Alfred v. Anderson, 87 N.M. 106, 107-08 , 529 P.2d 1227, 1228 (1974); Mor-Gran-Sou Elec. Coop. v. Montana-Dakota Util. Co., 160 N.W.2d 521, 523 (N.D.1968); State ex rel. Stefanick v. Municipal Ct. of Marietta, 21 Ohio St.2d 102, 104 , 255 N.E.2d 634, 635 (1970).

. Maryland Rule 2-231 is derived from Federal Rule of Civil Procedure 23.

. The language of Maryland Rule 2-231 and D.C.Super. Ct. Civ. R. 23 are nearly identical.

. The Supreme Court denied a writ of certiorari to the Third Circuit in two separate appeals. See National Gypsum Co. v. School Dist. Of Lancaster, 479 U.S. 915 , 107 S.Ct. 318 , 93 L.Ed.2d 291 (1986); Celotex Corp. v. School Dist. Of Lancaster, 479 U.S. 852 , 107 S.Ct. 182 , 93 L.Ed.2d 117 (1986).