# Petition for Writ of Certiorari — DaimlerChrysler Corp. v. Ysbrand > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1255%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 542 U.S. 937 ## Text §..">™Me Court. 1S. FILED 031342MAR 19 2004 Gres oF Heer my — ~ IN THE Supreme Court of the United States DAIMLERCHRYSLER CORPORATION, Petitioner, Vv. SHERYL YSBRAND AND MARY COONEY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Respondents. On Petition For A Writ Of Certiorari To The Supreme Court Of Oklahoma PETITION FOR A WRIT OF CERTIORARI PETER W. HERZOG JAMES F. BENNETT MIGUEL A. ESTRADA Counsel of Record BRYAN CAVE LLP THEODORE J. BOUTROUS, JR. One Metropolitan Square PAUL DECAMP 211 North Broadway Cory J. SKOLNICK Suite 3600 WILLIAM M. JAY St. Louis, MO 63102 GIBSON, DUNN & CRUTCHER LLP (314) 259-2000 ROBERT E. NORTON MARY E. WALDRUP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 DAIMLERCHRYSLER CORP. 1000 Chrysler Drive Auburn Hills, MI 48326 (248) 512-4120 Counsel for Petitioner ONC aN tt i QUESTIONS PRESENTED This Court has repeatedly held that the Commerce and Due Process Clauses of the federal Constitution preclude States from regulating activities beyond their borders. In Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), this Court also held that due process prohibits a court from apply- ing in a class action the law of a single State that lacks sig- nificant contact with the claims of each individual class member. In this case, the Supreme Court of Oklahoma ruled that—in order to facilitate the certification of a nationwide class—Michigan law, the law of the defendant’s principal place of business, should apply to the state-law claims of any plaintiff who bought or possessed one of the defendant’s mi- nivans anywhere in the United States. The questions pre- sented are: 1. Is the lower court’s application of a special choice-of- law analysis, applicable only to class actions, to facilitate cer- tification of a nationwide class inconsistent with the Due Process or Commerce Clause of the federal Constitution? 2. Is the lower court’s application of a single State’s law to the claims of all class members nationwide inconsistent with the Due Process or Commerce Clause of the federal Constitution? ll PARTIES TO THE PROCEEDINGS Petitioner DaimlerChrysler Corporation was formerly Chrysler Corporation, which was also named as a party in the courts below. The membership of the class certified by the trial court, of which the named respondents are members, is defined in the Appendix, infra, at 40a-41a. RULE 29.6 STATEMENT Petitioner is a wholly owned subsidiary of Daimler- Chrysler Motors Company LLC, which is a wholly owned subsidiary of DaimlerChrysler North America Holding Cor- poration, which is a wholly owned subsidiary of Daimler- Chrysler AG, a publicly traded company organized under the laws of the Federal Republic of Germany. ill TABLE OF CONTENTS Page PPE eNO FREE EEE? verecenssoreceeneencsscovecososeoseaseneveessoncess i PARTIES TO THE PROCEEDING ...............ccccsssssssssseseees ll RE Pe OPE PANNE © ccscnccnsanesassesconvosevoronscoosncsossensonebes il MRE I PRRs BEPAII EE Rover cc cevevonsenseorsesscosonsevscossosesorssseces Vv ye ania ese sncengpiniinindinasanmiicencst 1 I ais acchlaiaeeavsiccenonesiaekntieresenssnsenentionnerenssoronsons 1 CONSTITUTIONAL PROVISIONS INVOLVED............... 1 RMR MMEIOT ER SOP BEE CAGE.....2.....ccosscccsccaconesssssceseovensasses 1 REASONS FOR GRANTING THE WRIT ..........ccccceeeeee 7 I. The Oklahoma Court’s Classwide Analysis Conflicts With Decisions Holding That Due Process Requires A Choice-Of-Law Analysis |, ee 8 A. This Court’s Decisions Preclude Applying A State’s Law To Transactions In Which It Has No Significant Regulatory Interest ................... 8 B. Federal Courts Of Appeals And State Courts Have Adopted Conflicting Interpre- tations Of This Court’s Decision In Shutts ............ 13 II. The Oklahoma Court’s Nationwide Certification Conflicts With Decisions Interpreting The Commerce And Due Process’ Clauses’ Restrictions On Extraterritorial Regulation By cies caitistatiinveisireisaenadesbedoieiivdusesceadeinxereeess ioe iv II. The Questions Presented Are Important And Recur Frequently, And Courts Conducting Nationwide Class Certification Proceedings Require This Court’s Guidance At The Earliest Fe irae eniiccsiicssnsubiaxessicnsailiin acd iniiaiiarecasldiecns 24 IV. The Judgment Below Is Final For Purposes Of This Court’s Review Under 28 U.S.C. § 1257(a)......... 26 STL iinscrstsiercharnicdiuniseaaacsunnaaeeneaaraneesen cso 30 , 7 a q | | § Vv TABLE OF AUTHORITIES - Page(s) Cases ’ Allstate Insurance Co. v. Hague, 449 U.S. 302 CRIED iictidensacsinennidgnaeicinmenaiteniaaaiemuianata 6, 10, 12, 23 Amchem Prods. v. Windsor, 521 U.S. 591 (1997)..........0008 14 American Motorists Insurance Co. v. Starnes, 425 Beas Ge FO Pe snscsicticiteateedeidbsaiemieiaenencuseon die 28 Avery v. State Farm Mutual Automobile Insurance Co., 746 N.E.2d 1242 (Ill. App. Ct. 2001), appeal allowed, 786 N.E.2d 180 (Ill. 2002)............... 18, 22 Bigelow v. Virginia, 421 U.S. 809 (1975) ........cesseesessseesseees 23 Blair v. Equifax Check Services, Inc., 181 F.3d Be. FO GAG SII sinsiniensdsntainiionaicnmmedeas 29, 30 BMW of North America, Inc. v. Gore, 517 U.S. PE NED sivtsiccninsasacgunigtaipaedea en ene 21, 23, 24 Burlington Northern R.R. Co. v. Ford, 504 USS. aE | | ee NET REED cane uLNnars Bee Cc Ign 28 Calder v. Jones, 465 U.S. 783 (1984) .....ccccccsecsssceseceseseeeees 28 Castano v. American Tobacco Co., 84 F.3d 734 ak CE, TIPE iisessiesiacscsaniinsadedciacag retaeonnalen 14 Clark v. TAP Pharmaceutical Products, 798 PRS 0 Ce. FD GU Fe iistiiienrcatratimntanss 18, 22 Collins Radio Co. of Dallas, Texas v. Bell, 623 Fe TOS COM. CC, I 1 hiv vsisictivcsetincsserseoscesennensas 11 Container Corp. of America vy. Franchise Tax SN, RS BE. TP CE isi chwisncivninerceriscidsetaamcnnn 12 Coopers & Lybrand vy. Livesay, 437 U.S. 463 (FEED cvxnnsensissnenconhcennt pneiiniiuaieanstanbintaiasadaasgnliaamaaae 29 v1 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 GROW OE cininesiaccnstscanimiciaiann bcpuramumeniendianaate 26, 27, 29, 30 Debbs v. Chrysler Corp., 810 A.2d 137 (Pa. Super. PTE cctieisnlnissciiieaplncicsadnigomtaiaien eaheiea detect e 16 Flory v. Silvercrest Industries, 633 P.2d 383 (Anz. SPE Pnitehsictiiinesaemisdipeheegiae ania adiaied te Eins 22 Georgine v. Amchem Products, 83 F.3d 610 (3d Cir. 1996), aff'd sub nom. Amchem Prods. y. Windsor, 521 U.S. 591 (1997)... .ccccccessscsesessseccecececececececc, 14 Gillette Co. v. Miner, 459 U.S. 86 (1982) (per IID vsricccnssoninsnchidiicietencacemee aan tee 29 Goodyear Atomic Corp. v. Miller, 486 U.S. 174 QI iisenisokistsioiopicenlakiedieaeaa tae a ens 26 Healy v. Beer Institute, 491 U.S. 324 aE 21, 23 Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (OS I x vessrensenietiedceeetcettae ne eee 17, 25 Home Insurance Co. v. Dick, 281 U.S. 397 (1930)........ 10, 12 Huntington v. Attrill, 146 U.S. 657 ( Re itiiietiuitisdeesinedatades 23 In re Air Bag Products Liability Litigation, 7 F. Supp. 2d 792 (E.D. La. 1998) ...c.cccscosessosessececsseeoeccsse.. 2, 22 In re Bridgestone/Firestone, Inc. Tires Products Liability Litigation, 155 F. Supp. 2d 1069 (S.D. Ind. 2001), rev'd, 288 F.3d 1012 (7th Cir. BUOZ)..02s00000. 4,5 In re Lorazepam & Clorazepate Antitrust Litigation, 289 F.3d 98 (D.C. Cir. |_| SC me 30 J.P. Morgan & Co. v. Superior Court, 6 Cal. Rptr. SG 214 (CL. Appr. 2OOB),.csassecscovsrsesesovevecennenesesenosoesce...., 19 John Hancock Mutual Life Insurance Co. v. Yates, Om UPR IID vissscticsnietoiniecnncien aches 10 Vil Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718 Cs SIE Bacinicisnsesascenieneocsentesinsaiecbeandesvenreeenaes 15 Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 re icsctionssasnnpaitanen'csuedbieun dil dcncsinneihmentasanasaiganinoiialeainaninnnh 14 Martin v. Heinold Commodities, Inc., 510 N.E.2d I: SET Di cpssidiisnenciansenniseshoviatanionaabansaninaciannns 18 Mercantile National Bank v. Langdeau, 371 U.S. Fee cinteiasbicaenivinicanassbnuininascomnedpniandacalemmaticcanetinns 28, 29 New York Life Insurance Co. v. Head, 234 US. IT sissetapncsodnasensipadanennsasaaadlaciachrcebabiindeamastemiantaaes 23 P.J.’s Concrete Pumping Serv. v. Nextel West Corp., 803 N.E.2d 1020 (Ill. App. Ct. 2004) oe. 18 Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, 506 U.S. 139 (1993)... eeesssssseeeseeee 28 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 SS IETUIITED Latnsseshaniiceccheaniuntiacaaapomiaialeieneaiansaeebalamibensanlteia ta passim Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir. Piel antrdeelancdiabatfadaieiouandolsencaceibalagimeeanmaiiaie 30 Radio Station WOW, Inc. v. Johnson, 326 U.S. 120 RE sesaisirsccecbassat cmc cacdbiesellciceilpsaalpedta tallest aicsd ta 30 Republic Natural Gas Co. v. Oklahoma, 334 US. . REMI RES he ktente Oo eee an md aw aE OUT EON ME 30 Shaffer v. Heitner, 433 U.S. 186 (1977).............sssssscssssseeees 28 Southerland v. Northeast Datsun, Inc., 659 S.W.2d gg a 8g, | | Ee eR mn OnE nn TET 22 Southland Corp. v. Keating, 465 U.S. 1 (1984)....... 27, 28, 29 State ex rel. Mobil Corp. v. Gaughan, 565 S.E.2d 794 (W. Va.), cert. denied sub nom. Mobil Corp. v. Adkins, 537 U.S. 944 (2002) .....0csecccsossssscscesseees 20 SS Te Vill State Farm Mutual Automobile Insurance Co. v. Campbedl, 123 &. Ct. 1513 (20GB).....ccccccessccsosnesseessoess 23, 24 Tilley v. TJX Cos., 345 F.3d 34 (1st Cir. 2003)... 30 Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349 Cs ee FE. MED scuictiiss neniniiapsedcibeaseontaliowvadiaaimeaskens 17 Walsh v. Ford Motor Co., 807 F.2d 1000 (D.C. ORM ae RODIS AU CAD HA anR AA METRE 15 Washington Mutual Bank v. Superior Court, 15 ee PE 8 ae EE diss sehiccteddancnieectactssraiiaoee lens: 19 : ~ Zinser v. Accufix Research Institute, 253 F.3d ; 1180 (9th Cir. 2001) ...ccseccssecssee. SERB ALIS eee 14 Statutes 2B U.S.C. § 12578) seossssccsscsessscssssserssessssssssesseseesesee -..1, 26 2B U.S.C. § 1291 cssccscssccscsssssssssssssssssesesssessisssssessssseeeeenee 29 ) Rules AE a a ache airs tansnoinnivanciesendicttantanseatccnneavanimasee 6 i FED. R. CIV, P. 23(a)(2)ecccccccsesssssssessssssssossessusesessseceeececeee 25 Fa Be ats Wy IEE sak tsudanebcesaenduanaie nue vonmamiavccsacecuiuatie a FED. R. CIV. P. 23(6)(3) sossssstsesssssssnsssssstsetnneensentcee 25 | FED. R. CIV. P. 23(b)(3)(D) -vvossssssscsssssssssnsseneeenetnsssne 25 en, Pa ee 30 State Statutes | Cont. CHV. CORB UTGEN cco ececccscacscescseccesiaceoseane 22 Agency Decisions Denial of Motor Vehicle Defect Petition, 62 Fed. Reg. 41,477 (Aug. 1, 1997) ..scscccccccsssssssessssesssssssesesecsssseveces 2 1X Other Authorities John H. Beisner & Jessica Davidson Miller, They're Making a Federal Case Out of It... In State Court, 25 HARV. J.L. & PuB. PoL’y 143 RTD vescdunicisas tvcbenvavieansannitinoustiiea aaheeaeeaneiie ee: 19, 24 DEBORAH R. HENSLER ET AL., RAND INST. FOR CIVIL JUSTICE, CLASS ACTION DILEMMAS Arthur R. Miller, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the “Class Action Problem,” 92 HARV. L. REV. 664 (1979)... 7 RESTATEMENT (SECOND) OF CONFLICT OF LAWS ee iii iataseiemanen piulaladtiad ne tee ote 11 J. WHITE & R. SUMMERS, UNIFORM COMMERCIAL ee es I esivvevicnsibeareteiiccinkiteeas 16 PETITION FOR A WRIT OF CERTIORARI Petitioner DaimlerChrysler Corporation (“DCC”) re- spectfully prays that a writ of certiorari issue to review the judgment of the Supreme Court of Oklahoma in this case. OPINIONS BELOW The opinion of the Supreme Court of Oklahoma (App., infra, 1a-20a) 1s reported at 81 P.3d 618 (Okla. 2003). The opinion and order of the District Court in and for Sequoyah County, Oklahoma, granting respondents’ motion for class certification (App., infra, 21a-42a) is unreported. JURISDICTION The judgment of the Supreme Court of Oklahoma was entered on February 25, 2003. DCC filed a timely petition for rehearing, which the Supreme Court of Oklahoma denied on November 6, 2003. App., infra, 43a. On January 26, 2004, Justice Breyer extended the time for filing a petition for a writ of certiorari to and including March 26, 2004. App. No. 03A624. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a). CONSTITUTIONAL PROVISIONS INVOLVED The relevant provisions of the federal Constitution are set out in the Appendix, infra, at 45a-46a. STATEMENT OF THE CASE The fifty States have decided to adopt widely divergent limitations on actions for breach of warranty. The issue raised in this case is whether a single State can use its choice- of-law rules to circumvent those limitations. With the ex- press purpose of allowing certification of a nationwide plain- tiff class, the Oklahoma Supreme Court ordered the applica- tion of the law of Michigan to every one of the millions of warranty claims at issue, including the claims of the vast ma- é jority of class members who have essentially no contact with either Oklahoma or Michigan. In doing so, the court below refused to consider which State had the greatest connection to or interest in any individual plaintiff's claim, and essen- tially acknowledged that the outcome of the choice-of-law analysis would differ if conducted on an individualized basis rather than en masse. Moreover, the warranty claims that the lower courts certified are unrecognized by—indeed, contrary to—the laws of many States, laws that under a conventional choice-of-law analysis would govern the claims of a large segment of the certified class had those plaintiffs sued indi- vidually rather than collectively. 1. This litigation involves allegedly defective airbags in minivans. Airbags deploy rapidly when sensors detect an impact with the vehicle; the plaintiffs in this case allege that the passenger-side airbags installed in certain DCC minivans can deploy too forcefully. The National Highway Traffic Safety Administration had previously rejected an identical claim relating to the same passenger vehicles, concluding that there was no evidence of a defect that would warrant a recall. See Denial of Motor Vehicle Defect Petition, 62 Fed. Reg. 41,477, 41,478 (Aug. 1, 1997). A number of plaintiffs continued to press the theory that the airbags were defective, bringing claims against DCC and other manufacturers under Louisiana and Texas law, including Texas’s version of the Uniform Commercial Code. The federal district court in which these claims were consolidated rejected the claims on their merits. Jn re Air Bag Prods. Liab. Litig., 7 F. Supp. 2d 792, 799, 802-04 (E.D. La. 1998). 2. This lawsuit was brought in state court in Sequoyah County, Oklahoma, as a putative nationwide class action, with respondents Ysbrand and Cooney as the named class members. Only Ysbrand is an Oklahoma resident; Cooney resides in Delaware, DCC’s state of incorporation. App., in- fra, 48a. Respondents’ complaint alleged that the airbags in eS 3 respondents’ minivans were defective because they might deploy forcefully and cause injury. Respondents did not al- lege actual physical injury and, indeed, excluded from the definition of the proposed class anyone who had been injured by an air bag deployment. /d. at 50a, 63a-64a. The complaint asserted four claims, none specifically based on the law of any individual State (although the plain- tiffs specifically noted duties allegedly owed under Okla- homa and Delaware law, App., infra, 58a). Counts alleging “breach of express warranty,” “breach of implied warranty of merchantability,” and “breach of implied warranty of fitness” relied on provisions of the Uniform Commercial Code (UCC)—which is not itself law,-except insofar as States adopt it. Jd. at 60a-62a. The fourth count asserted a claim for common-law “fraud and deceit.” Jd. at 62a-63a. The state trial court issued an order inviting the plaintiffs to move for certification of a nationwide class, which they did. DCC opposed the motion on federal-law grounds, as- serting, inter alia, that the laws of different States must be applied to the various class members’ claims. See App., in- fra, 69a-73a; see also id. at 75a. After briefing, the trial court entered an order drafted by the plaintiffs (id. at 19a-20a), which certified a nationwide class comprising all current owners of several models of minivans but excluding anyone injured by his airbag. Jd. at 40a-41a.' The class includes in excess of one million potential claimants. See id. at 27a. ' The class definition included: [ajll entities and adult persons domiciled or residing in any of the fifty states of the United States of America or in the Dis- trict of Columbia, who purchased and who, according to motor vehicle registration records maintained by their respective states or districts of residence or domicile, can be identified as the current owner of at least one (1) model year 1996-1997 “minivan” automobile marketed by defendant as Chrysler alas niin The trial court’s opinion relied on the subsequently re- versed decision of the Southern District of Indiana in Jn re Bridgestone/Firestone, Inc. Tires Products Liability Litiga- tion, 155 F. Supp. 2d 1069 (S.D. Ind. 2001), rev'd, 288 F.3d 1012 (7th Cir. 2002), for the proposition that choice-of-law issues need not impede class certification. App., infra, 36a. Save for this citation of a now-reversed decision discussing Indiana choice-of-law rules, the trial court’s opinion con- tained no choice-of-law analysis at all and did not identify which State’s law it intended to apply. The opinion con- cluded only that “the alleged choice of law problems identi- fied by the defendants does [sic] not bar certification.” Jd. 3. DCC appealed the class certification to the Oklahoma Supreme Court, which by a 6-3 vote affirmed the certifica- tion of a nationwide class as to the warranty claims, but re- versed as to the fraud claim.” The court concluded that under Oklahoma choice-of-law principles, the law of each plain- tiff's home State would apply to the fraud claim. Applying the laws of all 50 States would “present[] an overwhelming burden which would make the class unmanageable and a class action determination of that claim inappropriate.” Town & Country or Chrysler Minivan or Plymouth Voyager or Plymouth Grand Voyager or Dodge Caravan, which was manufactured by defendant for sale in any of the fifty states of the United States of America or the District of Columbia, or which defendant marketed in any of the fifty states of the United States of America or the District of Columbia as a product of its own manufacture, ... which contains on the driver side and/or passenger side of the forward seating area a passive restraint system commonly known as an “air bag” . . . . App., infra, 40a-41a. 5 2 DCC raised federal-law issues in its initial statement of issues on appeal and again throughout its appellate briefing. £.g., App., infra, 88a-89a, 96a, 99a-100a, 1lla n.18. 5 App., infra, 16a. The court accordingly held that certifying the fraud claims was an abuse of discretion. See id. How- ever, the court reached a different conclusion as to the war- ranty claims. The court accepted respondents’ contention, raised for the first time in their appellate briefing, that the trial court had intended to create a manageable class, in which common issues of law predominate, by applying Michigan law to the warranty claims of every single plaintiff in the nationwide class. The state Supreme Court discerned this intent from the trial court’s citation of Bridgestone/Firestone. App., infra, 10a-lla. The court conceded in a footnote that that deci- sion’s choice-of-law analysis had been reversed by the Sev- enth Circuit, but asserted that the classwide application of Michigan law—without any individualized analysis—was nonetheless permissible in a state that, like Oklahoma, ap- plies the “most significant relationship” test to determine the law governing a contract claim. Jd. at llan.4. Reviewing the trial court’s implicit holding, the court proceeded to apply the “most significant relationship” test, but did so on a classwide rather than individual basis. Al- though the court conceded that the home State of each indi- vidual plaintiff had a “significant” interest in applying its own law to the claims of its citizens, or to transactions con- ducted within its borders, the court stated that no one plain- tiffs home State had a more significant interest than any other in applying its law to the claims of the entire class. App., infra, 13a (“[T]he relative interest of each buyer’s home state in applying its version of the UCC is more or less equal.”). Michigan, the State in which DCC maintains its principal place of business, was “the only state where con- duct relevant to all class members occurred.” Jd. Citing fac- tors from the Restatement (Second) of Conflict of Laws, the court stated that “[t]he needs of the interstate system and the basic policies of predictability and uniformity of result re- aa aa ae 6 quire that the issue of product defect be determined in one forum with one result rather than in 51 jurisdictions with the very real possibility of conflicting decisions.” Id. The court concluded, “Michigan law applies.” Jd. at 13a-14a. In reaching that conclusion, the court rejected DCC’s ar- gument that the Constitution precluded applying the law of a single State—whether Oklahoma, Michigan, or any other— without conducting an individualized choice-of-law analysis to verify that the State in question has sufficient contact with each plaintiff's claim to justify imposing its regulatory re- gime on the parties. The court stated that its application of Michigan law was “consistent with the constitutional impera- tive that ‘for a state’s substantive law to be selected in a con- stitutionally permissible manner, that state must have a sig- nificant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.”” App., infra, 14a (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985), and Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981) (plurality opinion)). Having determined that Michigan law applied to the warranty claims, the state Supreme Court affirmed the trial court’s certification of a nationwide class with respect to those claims. The court found that common questions of law predominated, in light of its conclusion that Michigan law governed the claims of every member of the plaintiff class. The other requirements of Oklahoma’s class-certification rule (which mirrors Rule 23 of the Federal Rules of Civil Proce- dure) were satisfied with respect to the warranty claims, the court believed, leaving the decision to certify the class within the trial court’s discretion. App., infra, 17a-20a. Chief Justice Watt and Justices Hargrave and Winchester each registered full or partial dissent from the majority opin- ion. None filed a separate opinion. App., infra, 20a. DCC sought rehearing, supported by the State of Michi- gan and numerous other amici. Michigan’s brief pointed out ee 7 that applying the plaintiffs’ novel theory of Michigan prod- ucts-liability law to the entire nationwide class violated basic constitutional principles of federalism and State sovereignty and undermined the same Michigan interests that the Okla- homa court had purported to protect. The Supreme Court of Oklahoma denied rehearing by a 5-4 vote, with Justice Kau- ger—who had previously joined the majority opinion— voting with the dissenters. App., infra, 43a. The state court has stayed the effectiveness of its mandate pending this Court’s disposition of the petition for a writ of certiorari. REASONS FOR GRANTING THE WRIT The decision below creates a true Frankenstein monster of mismatched parts: Michigan law, Oklahoma forum, na- tionwide adjudication.» The Supreme Court of Oklahoma sanctioned an application of choice-of-law principles that, applied to an individual plaintiff, plainly would be constitu- tionally inadequate. But the protections of the Due Process and Commerce Clauses are no weaker in the context of a class action. In addition, Oklahoma’s use of a nationwide class to override the conflicting warranty laws of other juris- dictions violates the Due Process and Commerce Clauses’ restrictions on individual States’ ability to extend their regu- latory reach beyond their own borders. Notwithstanding this Court’s prior guidance, state courts are increasingly receptive to the argument that Due Process and Commerce Clause protections should be diluted when needed to expedite classwide adjudication. These courts are becoming the forum of choice for counsel representing na- tionwide plaintiff classes, and their choice-of-law decisions are becoming a means of overriding the regulatory decisions > Of, Arthur R. Miller, Of Frankenstein Monsters and Shin- ing Knights: Myth, Reality, and the “Class Action Problem,” 92 HARV. L. REV. 664 (1979). cineeeetiinmaisiiiiiaiieaaianiiiins 8 of their sister States. This Court should grant review to pro- vide much-needed guidance to courts considering requests to certify multistate plaintiff classes in actions premised on state law, an increasingly common phenomenon. I. The Oklahoma Court’s Classwide Analysis Conflicts With Decisions Holding That Due Process Requires A Choice-Of-Law Analysis Specific To Each Plaintiff This Court has consistently held that plaintiffs in both individual and class actions do not enjoy an unfettered nght to select the substantive law that governs their claims. Choice-of-law principles may not direct the application of a State’s body of law to a plaintiff's claim if the State has little or no connection with the underlying conduct: the Due Proc- ess Clause precludes such an unforeseeable and unfair result. Lower federal and state courts have interpreted this Court’s cases to require, in the context of a putative nationwide class action, that choice-of-law principles be applied to each po- tential plaintiff, not to the litigation as a whole with the goal of certifying a class. The decision below contravenes these decisions and threatens to draw in litigants seeking a jurisdic- tion friendly to classwide adjudication. A. This Court’s Decisions Preclude Applying A State’s Law To Transactions In Which It Has No Significant Regulatory Interest The Due Process Clause places a substantive limitation on choice-of-law determinations: although the forum State ; has some freedom to select among the applicable rules of de- cision, the selection must be made from among bodies of law to which the parties may constitutionally be subjected. This constitutional requirement cannot be subordinated to the state forum’s desire to apply its lenient class-certification rules. The Oklahoma Supreme Court thus erred by applying a dif- ferent choice-of-law rule expressly to make a nationwide class possible. 9 1. The starting point for analyzing constitutional limits on choice-of-law rules in class actions is this Court’s deci- sion in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), which the court below cited but ignored. In Shutts this Court considered the claims of a multistate class of plain- tiffs who brought suit in Kansas state court against an out-of- state corporation. The state courts agreed with plaintiffs that Kansas law should govern the claims of the entire class, cit- ing the plaintiffs’ choice of Kansas as the forum and that State’s preference for applying its own law in its own courts absent exceptional circumstances. Jd. at 803. This Court reversed, holding that Kansas could not con- stitutionally apply its own law to the claims of the entire class. Even though Kansas had personal jurisdiction over both the defendant (through its conduct of business in that State) and the plaintiff class members (through their named representatives), these contacts were insufficient to justify applying Kansas law to the dispute, which involved a set of oil and gas leaseholds located in other States. 472 US. at 819-20. Moreover, the choice of law was anything but aca- demic: choosing one of the other potentially applicable rules of decision would change the outcome. Because there was a material conflict between the substantive law of Kansas and that of Texas and Oklahoma (the other possible sources of law), the due process rights of the parties were violated by imposing Kansas law upon them. Jd. at 817-18. This Court specifically rejected the notion that these limitations should be relaxed in order to give effect to the class action as a favored form of adjudication. Rather, these constitutional principles must be applied to the claims of each class member: the State whose law is applied “must have a ‘significant contact or significant aggregation of con- tacts’ to the claims asserted by each member of the plaintiff class, contacts ‘creating state interests,’ in order to ensure that the choice of [that] law is not arbitrary or unfair.” 472 10 U.S. at 821-22 (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981) (plurality opinion)) (emphasis added). If the claims of some class members are based on “a transaction with little or no relationship to the forum,” the forum State may not apply its own law solely to homogenize the plain- tiffs’ claims artificially and make them suitable for class- action adjudication. /d. at 821. The class action, the Court stressed, is nothing more than a procedural device; the Con- Stitution’s substantive restrictions on a State’s power to apply its own law beyond its borders are “not altered by the fact that it may be more difficult or more burdensome to comply ... because of the large number of transactions which the State proposes to adjudicate” in a single action. Jd. The Court in Shutts also stressed the general principle that even a named plaintiff's choice of the forum is not con- trolling as to choice of law. 472 U.S. at 820 (citing John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 182 (1936), and Home Ins. Co. v. Dick, 281 U.S. 397, 408 (1930)). Simply because the plaintiff chooses a court into which the defendant may be haled does not mean that the plaintiff may also choose his preferred body of Jaw without limitation: “If a plaintiff could choose the substantive rules to be applied to an action ... the invitation to forum shop- ping would be irresistible.” Jd. (quoting Allstate, 449 U.S. at 337 (Powell, J., dissenting)) (internal quotation marks omit- ted; alteration in original). Due process does not permit a state court to subject a party to a body of substantive law that is SO contrary to its expectations as to be “arbitrary and un- fair.” Jd. at 822. That constitutional limitation precluded applying Kansas law to transactions involving property out- side Kansas, an out-of-state defendant, and, for the most part, non-Kansas plaintiffs. 2. Shutts makes clear that the Supreme Court of Okla- homa erred by certifying a nationwide class according to an Oklahoma choice-of-law principle favoring classwide adju- 11 dication. The state court failed altogether to examine whether either Oklahoma or Michigan had a sufficient nexus with “each member of the plaintiff class,” Shutts, 472 US. at 821, to justify applying its law on an individual basis. Rather, the state court committed precisely the error that Shutts condemns: forsaking individualized assessment of contacts for the sake of classwide adjudication. The Oklahoma court’s selection of Michigan law to gov- em the claims of every minivan-owning plaintiff in the coun- (ry, contrary to customary choice-of-law principles and DCC’s reasonable expectations, gives rise to exactly the sort of unfair arbitrariness that Shutts forbids. As even the state Supreme Court conceded, applying ordinary choice-of-law principles to a warranty claim results in selecting the law of the place of delivery, which for nearly every member of the plaintiff class would mean the law of her home State—nor the law of Michigan. See App., infra, 13a (“‘[I]n a contract for a sale of goods the most significant contact is the place of delivery unless another state has a more significant relation- ship.’” (quoting Collins Radio Co. of Dallas, Tex. v. Bell, 623 P.2d 1039, 1047 (Okla. Ct. App. 1980)); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 191 & cmts. e, f. Thus, had respondent Cooney, a Delaware resident, filed this law- suit in Sequoyah County as an individual rather than a Class representative, the Oklahoma courts never would have se- lected Michigan law to govern her claim. As the state Su- preme Court recognized, every State retains a Significant in- terest in applying its own warranty law to products sold within its borders. App., infra, 13a. That interest cannot be trumped by the desire of two named plaintiffs to invoke the procedural rules of the courts of Sequoyah County. 3. Although conducting the choice-of-law analysis on a classwide basis would conflict squarely with this Court’s holding in Shutts irrespective of what body of law the state court ultimately selected, the application of Michigan law to 12 respondents’ claims also contravenes other decisions of this Court. For example, in Home Insurance Co. v. Dick, 281 U.S. 397 (1930), this Court held that Texas could not consti- tutionally apply its own law to a Texas resident’s contract claim that arose entirely outside Texas. See id. at 404, 407- 10. Texas law, if applied, would have modified the insurance contract, “abrogat[ing] a contractual right and impos[ing] li- ability [where] the parties ha[d] agreed that there should be none.” Jd. at 406-07. Although the plaintiff suing on the contract was a permanent resident of Texas, “nothing in any way relating to the policy sued on ... was ever done or re- quired to be done in Texas.” Jd. at 408. This Court accord- ingly held that applying Texas law would violate the defen- dant’s due process rights. See also, e.g., Allstate, 449 US. at 310-11 (plurality opinion) (Dick stands “for the proposition that if a State has only an insignificant contact with the par- ties and the occurrence or transaction, application of its law is unconstitutional”); id. at 333 n.1 (Powell, J., dissenting) (Dick “is a case where the reasonable expectations of a liti- gant were frustrated” by the state court’s application of a dif- ferent body of law). Dick makes clear that even in an individual action, the Constitution restricts courts from applying the substantive law of a State that lacks sufficient connection to the subject | matter of the litigation. (Dick applied the Due Process Clause, but the same result would follow a fortiori under the : Commerce Clause’s restrictions on extraterritorial regulation. See infra Section II; cf Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 164 (1983).) The residence of one of the parties is insufficient, standing alone, when the litigation turns on actions that that party performed elsewhere—as in this case, in which plaintiffs’ contract-based theory turns on the alleged breach of express and implied warranties that supposedly attended DCC’s nationwide sale of minivans. Thus, had respondent Cooney, the Delawarean, sued indi- vidually in Sequoyah County, the Due Process Clause (and, 13 as noted above, Oklahoma’s choice-of-law rules) would have precluded her from demanding the application of Michigan warranty law. Indeed, a contrary holding would have al- lowed a State’s regulatory authority over its residents’ com- mercial transactions to extend wherever the residents might roam, reasoning altogether inconsistent with this Court’s Due Process and Commerce Clause cases. This constitutional problem is only heightened in the context of a nationwide class action like this one, in which a state court proposes to “bootstrap” one State’s constitutionally insufficient contacts with individual litigants into constitutionally sufficient con- tacts with an entire class. Shutts, 472 U.S. at 821. Such a course of action is precisely what Shutts forbids. See id. at 822-23 (applying Dick in the class context). B. Federal Courts Of Appeals And State Courts Have Adopted Conflicting Interpretations Of This Court’s Decision In Shutts This Court made clear in Shutts that due process pre- cludes courts from applying by rote the law of the forum, the law that facilitates class certification, or the law of the plain- tiffs’ election. The federal courts of appeals and several state courts have faithfully applied that teaching and hold that an individualized choice-of-law analysis is required before any multistate class involving state-law claims may be certified. Other jurisdictions, however, have adopted rules similar to that espoused by the court below. Ordering the classwide application of a single State’s law in order to facilitate the adjudication of nonresidents’ claims conflicts with these well! reasoned precedents from sister jurisdictions. This Court’s review is warranted to resolve this conflict. 1. The federal courts of appeals, which frequently are called upon to examine the certification of plaintiff classes in actions under state law, continue to apply Shutts faithfully, requiring an individualized choice-of-law analysis as part of the inquiry into the “commonality” and “predominance” re- io quirements for class certification. Because Oklahoma and a few other jurisdictions have departed from this rule, the dif- ference in result that comes from adjudicating state-law claims in federal court rather than state court—a forum- shopping incentive that federal Erie rules are designed to mitigate, see, e.g., Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)}—becomes all the more stark. The Third Circuit has spoken most directly to this issue. In Georgine v. Amchem Products, 83 F.3d 610 (3d Cir. 1996), aff'd sub nom. Amchem Prods. v. Windsor, 521 U.S. 591 (1997), the court of appeals reversed the certification of a nationwide settlement class to resolve the claims of plain- tiffs exposed to asbestos. The Third Circuit held, citing Shutts, that adjudication of the claims of the class members would require the court to “apply an individualized choice of law analysis to each plaintiff's claims.” Id. at 627 (emphases added); accord, e.g., Castano v. Am. Tobacco Co., 84 F.3d 734, 742 n.15 (Sth Cir. 1996). The court reached this conclu- sion despite arguably compelling policy reasons for nation- wide adjudication in the context of asbestos, which both the Third Circuit and several members of this Court viewed as desirable, though legally unworkable. Amchem, 521 U.S. at 628-29; id. at 633-34 (Breyer, J., concurring in part and dis- senting in part); Georgine, 83 F.3d at 634. The Third Cir- cuit’s reasoning applies with even greater force to cases like this one: “no injury” class actions that do not even arguably address any nationwide problem. As this Court held in Shutts, the constitutional restrictions on choice of law do not yield to the procedural convenience of unified adjudication. In a similar vein, the Ninth Circuit has rejected an at- tempt, much like respondents’, to satisfy the commonality and predominance requirements for class certification by demanding the application of a single State’s law. The puta- tive plaintiff class in Zinser v. Accufix Research Institute, 253 F.3d 1180 (9th Cir. 2001), asked the district court to certify a 15 nationwide class and to apply the products-liability law of California, the forum State. Jd. at 1185, 1187. The district court and the Ninth Circuit both recognized, and the plaintiffs ultimately conceded, that under Shutts, California law could not “be constitutionally applied to all putative class mem- bers.” Jd. at 1187. The court also rejected the plaintiffs’ fallback position, to apply the law of the defendant’s princi- pal place of business to the entire class on the ground that “the application of a single state’s law will allow claims to be adjudicated on a class basis.” The court held that choice-of- law rules did not permit such a selection. Jd. at 1187-88; id. at 1198-99 & n.3 (B. Fletcher, J., dissenting) (agreeing with the majority on the choice-of-law issue); see also Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 725 n.6 (11th Cir. 1987) (affirming denial of certification because multiple States’ laws applied, and citing Shutts to show that even if Georgia (the forum) “would require application of its own common law rules to some claims involving purchases in other states, the law of Georgia could be applied consistent with due process only if the particular transaction had some significant relation to Georgia”). The D.C. Circuit likewise has recognized the impropri- ety of assuming away the variations in the laws of the 50 States in order to facilitate class certification. In another product-defect case against an automaker in which, as here, UCC warranty provisions adopted by the various States pro- vided the rule of decision, the court of appeals reversed the district court’s certification of a nationwide class based on its failure to conduct a searching choice-of-law inquiry. Walsh v. Ford Motor Co., 807 F.2d 1000, 1016, 1019 (D.C. Cir. 1986) (Edwards and R.B. Ginsburg, JJ.). The district court certified the class without “inquir[ing] further into the exis- tence and character of differences in state warranty laws.” To “look to the [laws of] the many States” would make class certification “virtually impossible,” the district court wrote, which suggested that it might apply the law of a single State, 16 or of selected States. /d. at 1016 & n.90. As in this case, the lower court allowed the perceived virtue of unified adjudica- tion to trump any conflict of law. The D.C. Circuit reversed, refusing to take “on faith” the plaintiffs’ assertion that no state-law variation would impede adjudication. The Uniform Commercial Code, the court noted, “is not uniform.” 807 F.2d at 1016 (quoting J. WHITE & R. SUMMERS, UNIFORM COMMERCIAL CODE 7 (2d ed. 1980)). Material variations in state law would prevent class certification on common questions of law. With respect to the possibility of applying a single State’s law, the court of appeals noted Shutts’s holding that selecting the law of a sin- gle State would be unconstitutional without a showing that that State “had a significant relationship to each class mem- ber’s claim.” Jd. at 1016 n.90. 2. The state courts, which in recent years have been the preferred forum for putative nationwide class actions, have for the most part followed the federal courts in interpreting Shutts to require a choice-of-law analysis specific to each plaintiff. For example, another multistate class alleging air- bag defects was decertified on appeal precisely because the trial court applied the law of the forum, Pennsylvania, to the claims of the entire class for breach of warranty and violation of state consumer-protection statutes. Debbs v. Chrysler Corp., 810 A.2d 137, 158-59 (Pa. Super. 2002). The appel- late court held that the trial court’s failure to conduct a choice-of-law analysis before certifying the class violated the parties’ “‘due process right to have their claims governed by the state law applicable to their dispute.’” Jd. (quoting Shutts, 472 U.S. at 821). The court also noted that “a trial court cannot sidestep choice-of-law issues by declaring that the class action would be governed by Pennsylvania law” in the interest of “administrative convenience.” Jd. at 159. The courts of Texas have taken a similar approach. The Supreme Court of Texas recently clarified that it would not Wh Mele AAD Bee 4 a 17 “apply the law of the state where a defendant is headquar- tered to every claim for economic damages that can be al- leged against the defendant,” and decertified a nationwide class accordingly. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 698 (Tex. 2002). The Texas courts have inter- preted Henry Schein, read together with Shutts, to bar pre- cisely the sort of class-driven choice-of-law analysis that the Oklahoma Supreme Court engaged in here. For example, in rejecting a Texas trial court’s certification of a nationwide class based on the law of Missouri (defendant’s principal place of business), the state Court of Appeals recently cau- tioned that such an approach was unconstitutional: “The analysis must be conducted on an individual basis; a nation- wide class is not entitled to a ‘looser’ analysis merely be- cause applying one state’s law would be easier than applying many.” Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 352 (Tex. Ct. App. 2003) (citing Shutts, 472 U.S. at 821-22) (footnote omitted). The court concluded that applying the law of each consumer’s home State, in accord with accepted choice-of-law principles, “would protect the parties’ justified expectations.” Jd. at 357; see also Shutts, 472 U.S. at 822 (“When considering fairness in this context, an important element is the expectation of the parties.”). The Oklahoma court in this case, by contrast, skewed those accepted choice- of-law principles and overrode DCC’s and class members’ justified expectations. 3. However, not every state court has so faithfully ap- plied Shutts. Some States have joined Oklahoma in imple- menting choice-of-law rules that expressly facilitate the certi- fication of a nationwide class by applying a body of substan- tive law that would not apply to an individual claim. These States are rapidly becoming magnets for putative plaintiff Classes and their counsel. For example, the Illinois courts have repeatedly upheld certification of nationwide classes based on Illinois law. See, 18 e.g., Martin v. Heinold Commodities, Inc., 510 N.E.2d 840, 846-47 (Ill. 1987). Indeed, in a number of instances the IIli- nois courts have affirmed precisely what the Oklahoma Su- preme Court allowed plaintiffs to accomplish in this case: application of the law of a single State based solely on the location of the defendant’s headquarters. E.g., id.; Clark v. TAP Pharm. Prods., 798 N.E.2d 123, 129 (Ill. App. Ct. 2003); Avery v. State Farm Mut. Auto. Ins. Co., 746 N.E.2d 1242, 1254-55 (Ill. App. Ct. 2001), appeal allowed, 786 N.E.2d 180 (Ill. 2002). In Clark, for example, the court up- held the application of Illinois law to transactions between “non-Illinois class members” and “non-Illinois medical care providers,” which “occurred in states other than Illinois.” 798 N.E.2d at 129. This posed no constitutional problem, the court held, because the defendant was a corporation head- quartered in Illinois. “‘Illinois has a legitimate interest in applying its law ... to insure that its residents [i.e., corpora- tions headquartered there] comply with its consumer- protection laws while serving Illinois and out-of-state con- sumers.’” Id. at 129-30 (quoting Avery, 746 N.E.2d at 1255) (emphasis added). The Illinois courts have consistently re- fused to concede the extraterritorial impact of this form of classwide imposition of Illinois’s substantive law. The effect of these choice of law rules has been dra- matic, if predictable. Illinois state courts have become a pre- ferred venue for plaintiffs seeking to represent nationwide classes. Citing the state courts’ choice-of-law decisions, the Appellate Court of Illinois recently noted that “50-state class actions are not uncommon in Illinois.” P.J.’s Concrete Pumping Serv. v. Nextel W. Corp., 803 N.E.2d 1020, 1030 (Ill. App. Ct. 2004). Indeed not: “In the Third Judicial Dis- trict of Madison County, Illinois, seventy purported class ac- tions were filed between February 1998 and March 2001, of which eighty-one percent (fifty-seven cases) were brought on behalf of putative nationwide classes.” John H. Beisner & Jessica Davidson Miller, They're Making a Federal Case Out —————— sciiaieiaiaeaimeaaaaiaaiil 19 of It... In State Court, 25 Harv. J.L. & PuB. PoL’y 143, 169 (2001). The Illinois experience demonstrates the likely effect of a constitutionally erroneous choice-of-law rule like the one announced in this case: litigants dissatisfied with the rules that would govern them under ordinary choice-of-law principles will seek out jurisdictions with which they have no constitutionally significant contact but which will adjudicate their claims under a more favorable body of substantive law. 4. The courts of California have taken an intermediate approach to the choice-of-law problem that putative nation- wide classes present. The California Supreme Court has rec- ognized, correctly, that applying California law to the claims of a nationwide class requires a showing that California has significant contacts with “the claims of each class member.” Wash. Mut. Bank v. Superior Court, 15 P.3d 1071, 1080 (2001). However, the court has permitted the application of a different choice-of-law rule to nationwide classes by creating a burden-shifting procedure. First, the proponent of class certification must show that “the requisite significant con- tacts” exist between California and the claims asserted by the class. Jd. at 1081. Once the proponent makes that showing, California law presumptively applies to the class claims unless the opposing party can show that the interests of other States outweigh California’s and that the law of one or more foreign States should therefore control. The court rejected the argument that “California may not constitutionally weigh the scales in favor of applying its own law.” Jd.* * Even under this approach, the decision below could not stand, because the Oklahoma court itself acknowledged that States other than Oklahoma and Michigan have a significant interest in applying their own laws to the product sales at issue in this case, an interest that the court subordinated to the perceived benefits of class certification. See, e.g., J.P. Morgan & Co. v. Superior Court, 6 Cal. Rptr. 3d 214, 234-35 (Ct. App. 2003) (applying Washington Mutual and rejecting certification of a nationwide class with mem- 20 Justice Maynard of the West Virginia Supreme Court of Appeals recently offered a neat summation of the ongoing problem in the lower courts of that State, and others. He warned that the availability of liberal choice-of-law rules was causing an “improper pilgrimage” into West Virginia state court by plaintiffs seeking collective adjudication. State ex rel. Mobil Corp. v. Gaughan, 565 S.E.2d 794, 795 (W. Va.) (Maynard, J., concurring), cert. denied sub nom. Mobil Corp. v. Adkins, 537 U.S. 944 (2002). “[B]Jecause so many of the plaintiffs have NO connection whatsoever with West Vir- ginia, and because the United States Supreme Court was so clear in the [Shutts] case,” he wrote, he was fearful of “even- tual reversal” on due process grounds. Jd. Justice Maynard was confident that the due process violation would prove se- rious, and that “some federal court will eventually tell us so.” Id. at 794.° Justice Maynard’s opinion makes clear that some state appellate courts cannot or will not intervene to correct constitutional error in the aggregation of plaintiffs’ claims; both they and the trial courts they supervise require further guidance from this Court on the constitutional principles elu- cidated in Shutts and implicated in every multistate class ac- tion applying state law. bers from States with laws materially different from California’s, because it was “necessary to weigh the interest of those states as against the interest of California in resolving the classwide claims of nonresident class members,” and because these claims “lack[ed a] significant connection ... to California”). The decision below therefore conflicts with California’s intermediate approach to the due process issue, as well as with the holdings of state courts that more squarely apply this Court’s decision in Shutts. > Justice Maynard concurred in the court majority’s opinion denying relief because the case was before the court on a petition for an extraordinary writ, rather than on a direct appeal. 21 II. The Oklahoma Court’s Nationwide Certification Conflicts With Decisions Interpreting The Commerce And Due Process Clauses’ Restrictions On Extrater- ritorial Regulation By The States The Oklahoma court’s decision has a substantive impact in all 49 other States and the District of Columbia. The plaintiffs’ causes of action under the Uniform Commercial Code cannot succeed unless the UCC warranty provisions are construed broadly, in a variety of ways. A number of the plaintiff class members’ home States—where their minivans were advertised, purchased, driven, and owned to this day without incident—have already definitively rejected one or more of the constructions of warranty law on which the plaintiffs’ claims rest. Those States are entirely within their rights to provide that DCC has breached no duty to their citi- zens. Yet the Oklahoma court’s application of Michigan substantive law to those transactions has the effect of displac- ing those States’ own regulatory regimes and replacing them with one into which the Oklahoma courts may read a viable claim. “State power may be exercised as much by a jury’s application of a state rule of law in a civil lawsuit as by a statute,” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 572 n.17 (1993), and no State may apply a rule of law that con- flicts with this Court’s decisions interpreting the constitu- tional constraints on extraterritorial regulation. 1. The Commerce Clause prohibits States from engag- ing in precisely this sort of extraterritorial regulation without the consent of Congress. In Healy v. Beer Institute, 491 U.S. 324 (1989), this Court struck down Connecticut’s attempt to project its alcoholic beverage control regime into its neighbor States. Jd. at 337. As in this case, Connecticut had adopted a regulatory regime that had the “undeniable effect of control- ling commercial activity occurring wholly outside the bound- ary of the State.” Jd. “mmm LL ae 22 The certification of a single body of law to govern the entire class threatens to extinguish the contrary regulatory regimes of Oklahoma and Michigan’s sister States—regimes under which many class members’ claims against DCC are plainly barred. For example, many class members cannot recover under their own States’ laws on a “no-injury” claim for breach of warranty like the one they assert here, a claim premised on an alleged, as-yet unmanifested product defect that has caused no harm. E.g., In re Air Bag Prods. Liab. Litig., 7 F. Supp. 2d at 803-04. Other class members could not recover because they purchased their minivans from re- tailers, rather than from DCC, and their home States require plaintiffs suing for breach of express warranty, implied war- ranty, or both to show vertical privity with the defendant. E.g., Flory v. Silvercrest Indus., 633 P.2d 383, 387 (Ariz. 1981). Other States preclude class members who purchased a used minivan from suing DCC, the original manufacturer, for breach of implied warranty. See, e.g., CAL. Clv. CODE § 1791.1; Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889, 891 (Tex. Ct. App. 1983). A substantial number of plaintiff class members assert claims that, if brought individually, would be governed by state law that precludes their recovery. For example, to_per- mit a California used-minivan purchaser to recover under some other State’s law when the law of her own State pre- cludes recovery against the manufacturer plainly amounts to regulation of the market for used vehicles in California, a form of regulation unjustified by any contacts between the forum State and the transaction being regulated. Indeed, a number of the state-court cases certifying nationwide classes concede that the effect of such a decision is to regulate trans- actions with customers in other States. E.g., Clark, 798 N.E.2d at 129-30 (applying Illinois consumer-protection law to companies “‘serving Illinois and out-of-state consumers.’” (quoting Avery, 746 N.E.2d at 1255) (emphases added)). 23 2. This Court has consistently applied due process prin- ciples as well as the Commerce Clause to strike down such extraterritorial regulatory efforts. As Justice Stevens ex- plained in Allstate, this Court’s due process cases prohibit States from applying their own choice-of-law principles and substantive law with the effect of “materially enlarging the contractual obligations of one of the parties where that party had no reason to anticipate the possibility of such enlarge- ment.” 449 U.S. at 327 n.16 (Stevens, J., concurring in the judgment). Here, although California law limits a manufac- turer’s implied warranty to the initial purchaser, the Okla- homa court’s class-certification decision effectively rewrites that contractual obligation and, if Michigan law contradicts California’s rule, allows every California minivan purchaser the additional opportunity to pass on the manufacturer’s im- plied warranty through resale. The Oklahoma courts’ na- tionwide certification thus rewrites DCC’s warranty obliga- tions across the country. Likewise, this Court’s recent punitive damages cases ex- pressly invoke the Due Process Clause’s limitations on one State’s power to punish conduct legal in other States. E.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S. Ct. 1513, 1522 (2003) (“A State cannot punish a defendant for conduct that may have been lawful where it occurred.” (citations omitted)); BMW, 517 U.S. at 571-73 & n.16 (same) (citing Healy, 491 U.S. at 335-36; Bigelow v. Virginia, 421 U.S. 809, 824 (1975); N.Y. Life Ins. Co. v. Head, 234 U.S. 149, 161 (1914); and Huntington v. Attrill, 146 U.S. 657, 669 (1892)). Indeed, in State Farm this Court cited Shutts for the proposition that “[ajny proper adjudication of conduct that occurred outside Utah [the forum State] to other persons” would be governed by the State laws applicable to those other persons. 123 S. Ct. at 1522.° ° For this reason, this litigation may put DCC in a no-win situation: even if DCC prevails in the Oklahoma action on Michi- reiterate iiaaiatiiaiaiaiaiiiiaes 24 The Oklahoma court’s decision effectively makes an end run around State Farm and BMW. By certifying a nation- wide class according to a single State’s law—in a case in which the plaintiffs demand punitive damages—the court requires an Oklahoma court to consider awarding damages based on conduct legal where it occurred, because the class certification permits plaintiffs from States in which DCC is unquestionably free of liability to pursue their claims under Michigan law, and to seek damages. The certification of a nationwide class in this case is a plain circumvention of the federal system’s restrictions on extraterritorial regulation, as set forth in this Court’s cases. This Court should exercise plenary review to correct both the Oklahoma court’s disregard of controlling authority and the resulting disruption of interstate commerce. III. The Questions Presented Are Important And Recur Frequently, And Courts Conducting Nationwide Class Certification Proceedings Require This Court’s Guidance At The Earliest Possible Stage State courts are requested to certify nationwide classes with increasing frequency. Indeed, in certain state courts, requests for nationwide class certification are becoming the norm rather than the exception. E.g., DEBORAH R. HENSLER ET AL., RAND INST. FOR CIVIL JUSTICE, CLASS ACTION DI- LEMMAS 124 n.15 (2000) (reporting that one study found that more than half the certified classes in Alabama courts were nationwide in scope); Beisner & Miller, supra, at 156-57, 160-61, 169 (noting the growth of nationwide class actions filed in state courts). gan-law grounds, some plaintiff class members may return to their home States to pursue warranty claims, claiming that they are not bound by the Oklahoma courts’ application of Michigan law to resolve their claims in DCC’s favor. 25 These cases create an acute need for guidance on the correct constitutional standard for choice-of-law determina- tions in nationwide class actions. Demands to apply the law of a single State in such actions are likewise becoming far more common. Choice-of-law questions are presented in vir- tually every nationwide class action applying state law, and in many cases the resolution of those questions will be a dis- positive factor in the decision whether or not to certify. Most States that allow class actions apply some version of the fed- eral Rule 23 requirements of commonality, typicality, pre- dominance, and manageability, see FED. R. Civ. P. 23(a)(2), (a)(3), (b)(3), (b)(3)(D), all of which are directly implicated by a decision that the law of multiple States governs the claims of the class. See Henry Schein, 102 S.W.3d at 698 nn.91-92 (collecting dozens of federal and state cases in which the need to apply multiple States’ laws was dispositive of class certification). Thus, guidance from this Court on the choice-of-law question will likely affect a large fraction of class-certification decisions in multistate class actions brought in both state and federal courts. The conflicting decisions of those courts make the need for review all the more urgent. Even if only a few States misapply this Court’s Due Process and Commerce Clause precedents to create choice-of-law rules that permit the na- tionwide application of a particularly plaintiff- or defendant- friendly body of law, the floodgates are opened: parties eve- rywhere can override their home States’ public policies by obtaining nationwide class certification in the courts of an- other State. For this reason, the interstate conflict created by the decision of the Oklahoma Supreme Court and a few other state courts is of considerable significance to the federal sys- tem, and this Court’s review is warranted to correct it. ne ne Te enn se ann ee 26 IV. The Judgment Below Is Final For Purposes Of This Court’s Review Under 28 U.S.C. § 1257(a) The decision below finally resolved the important ques- tions of federal constitutional law presented in this petition. The Oklahoma Supreme Court squarely rejected DCC’s ar- guments that the federal Constitution precludes courts from certifying a nationwide class without conducting a choice-of- law analysis specific to the individual class members’ claims. If not reviewed now, the decision below threatens to erode fundamental principles of federalism—including constitu- tional limits on choice of law and comity among sister States—and to evade review altogether. Accordingly, the judgment is final for purposes of 28 U.S.C. § 1257(a). The Court follows a “pragmatic approach” when deter- mining whether a state court decision is “final” under § 1257(a). Cox Broadcasting Corp. v. Cohn, 420 US. 469, 486 (1975). There are “at least-four categories” of cases in which a judgment is sufficiently final to justify this Court’s review even though further proceedings remain to be held in state court. Jd. at 477. The fourth such category involves “those situations where the federal issue has been finally de- cided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court,” and where “rever- sal of the state court on the federal issue would be preclusive of any further litigation.” Jd. at 482-83. In these circum- stances, “if a refusal immediately to review the state-court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.” Jd. at 483; see also Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 178-80 (1988) (granting cer- tiorari where the decision below “might seriously erode fed- eral policy in the area of nuclear production”); Southland EE 27 Corp. v. Keating, 465 U.S. 1, 6-8 (1984) (granting certioran where the decision below threatened to erode enforcement of arbitration agreements under the Federal Arbitration Act). The fourth Cox Broadcasting category is applicable here. The constitutional issues presented in the petition have been finally decided by the court below, which rejected DCC’s contention that certification of a nationwide class ac- tion under Michigan law, without conducting a choice-of-law analysis specific to the individual class members’ claims, violates several provisions of the federal Constitution. See supra note 2. Although the state court remanded for further proceedings, such proceedings will not crystallize or finalize the disposition of the federal questions; to the contrary, the litigation may well terminate on the basis of nonfederal is- sues, thereby depriving this Court of the opportunity to de- cide the important constitutional issues at stake. Cox Broad- casting, 420 US. at 482. Furthermore, reversal of the decision below would be “preclusive of any further litigation on the relevant cause of action.” Cox Broadcasting, 420 U.S. at 482-83. A determi- nation by this Court that the Constitution requires that the laws of all 50 states and the District of Columbia be applied to the nationwide class members’ claims would terminate this litigation as a practical matter. As the opinion below ac- knowledges, “[a]pplying the law of 51 jurisdictions . . . pre- sents an overwhelming burden which would make the class unmanageable and a class action determination ... inappro- priate.” App., infra, 16a. Moreover, following a constitu- tionally adequate choice-of-law analysis, neither named re- spondent could maintain any cause of action under Michigan warranty law in the Oklahoma court. Accordingly, reversal of the decision below would terminate this lawsuit. Finally, it is readily apparent that “a refusal immediately to review the state-court decision might seriously erode fed- eral policy.” Cox Broadcasting, 420 U.S. at 483. The Okla- 28 homa courts’ certification of a nationwide class under Michi- gan law, without conducting a choice-of-law analysis specific to individual class members’ claims, heavily undermines constitutional interests in federalism. These interests, through the Commerce and Due Process Clauses, restrain an individual state court’s authority within our federal system. Where, as here, the federal issue concerns the basic au- thority of the state court to adjudicate specific claims be- tween specific litigants, this Court consistently has exercised jurisdiction despite the availability of further state court pro- ceedings that might lead to the termination of the dispute on non-federal grounds. For example, this Court has taken ju- risdiction to decide whether the state court in which further proceedings would be held had the authority to adjudicate a dispute or instead was required by federal law to refer it to arbitration. Southland Corp., 465 U.S. at 6-7. Similarly, this Court has reviewed the question whether the state court lacked personal jurisdiction over a defendant and thus, under the Due Process Clause, could not adjudicate the dispute. Calder v. Jones, 465 U.S. 783, 788 (1984); Shaffer v. Heit- ner, 433 U.S. 186, 195-96 n.12 (1977). And this Court simi- larly exercised jurisdiction to decide whether the state court lacked authority to adjudicate a claim because federal law compelled a change of venue. Burlington N. R.R. Co. v. Ford, 504 U.S. 648, 649-652 (1992); Am. Motorists Ins. Co. v. Starnes, 425 U.S. 637, 640-42 (1976); Mercantile Nat'l Bank v. Langdeau, 371 U.S. 555, 558 (1963). In this case, the federalism issues implicated by the rul- ing below are just as significant and deserving of immediate review, if not more so. Cf, e.g., P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 146 (1993) (review- ing a sovereign immunity claim interlocutorily owing to the “importance of ensuring that the States’ dignitary interests can be fully vindicated”). The federal question is the consti- tutionality of the state court’s proposed adjudication: not fetes ee RNS 0 4 ie 29 only does further delay entail exponentially greater cost, it imposes on DCC precisely the burden against which it is in- voking the protections of the Due Process and Commerce Clauses. Where federal policies affecting the scope and form of litigation are at issue, it serves the underlying policy of finality “to determine now [how] appellants may be tried rather than to subject them, and appellee, to long and com- plex litigation which may all be for naught if consideration of the preliminary question . . . is postponed until the conclusion of the proceedings.” Mercantile Nat’l Bank, 371 U.S. at 558; see also Southland Corp., 465 U.S. at 7-8 (noting that de- layed review of a state decision denying enforcement of an arbitration contract would defeat the core purpose of a con- tract to arbitrate). Moreover, a grant of class status “can propel the stakes of a case into the stratosphere,” thereby pressuring a defen- dant to settle and precluding future review of federal issues, “even when the plaintiff's probability of success on the mer- its is slight.” Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834 (7th Cir. 1999) (noting that “some plaintiffs or even ’ This Court has not previously considered whether a grant of class certification is reviewable under Cox Broadcasting. In Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), the Court considered whether a denial (rather than a grant) of class certifica- tion was “final” under 28 U.S.C. § 1291, not § 1257. Similarly, in Gillette Co. v. Miner, 459 U.S. 86 (1982) (per curiam), the Court, which dismissed certiorari for want of jurisdiction without further explanation, was asked to consider a federal interest different from the one raised here. Gillette concerned the constitutionality of a State court’s personal jurisdiction over unnamed class plaintiffs, while this petition concerns constitutional limitations on a state’s choice of law with respect to specific transactions. See Shutts, 472 U.S. at 821 (“The issue of personal jurisdiction over plaintiffs in a class action is entirely distinct from the question of the constitu- tional limitations on choice of law.”). ae AR et 30 some ... judges may be tempted to use the class device to wring settlements from defendants”). Indeed, such settle- ment pressures were a motivating factor behind this Court’s adoption of Rule 23(f) of the Federal Rules of Civil Proce- dure in 1998. FED. R. Civ. P. 23(f) advisory committee’s notes (“An order granting certification ... may force a de- fendant to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability.”). Notably, federal courts of appeals are instructed that their discretion to conduct interlocutory review under Rule 23(f) is “akin to the discretion exercised by the Supreme Court in act- ing on a petition for certiorari.” Jd.* The possibility of cer- tiorari review reduces the danger that a constitutionally erro- neous class certification (and the resulting impact on inter- state federalism) will never be reviewed precisely because even a nationwide class advancing meritless claims poses a real threat of crippling liability, ““economic waste and ... delayed justice’” that could create undue incentives to settle. Cox Broadcasting, 420 U.S. at 477-78 (quoting Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124 (1945)); see Re- public Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68 (1948). CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. 8 All federal circuits that have interpreted Rule 23(f) have recognized that interlocutory appeal is appropriate “when the stakes are large and the risk of a settlement or other disposition that does not reflect the merits of the claims is substantial.” Blair, 181 F.3d at 835; see also Tilley v. TIX Cos., 345 F.3d 34, 37 (1st Cir. 2003); In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 105 (D.C. Cir. 2002) (same); Prado-Steiman v. Bush, 221 F.3d 1266, 1272, 1274 (11th Cir. 2000) (same). PETER W. HERZOG MIGUEL A. ESTRADA JAMES F, BENNETT Counsel of Record BRYAN CAVE LLP THEODORE J. BOUTROUS, JR. One Metropolitan Square PAUL DECAMP 211 North Broadway ‘Cory J. SKOLNICK Suite 3600 WILLIAM M. JAy St. Louis, MO 63102 GIBSON, DUNN & CRUTCHER LLP (314) 259-2000 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 ROBERT E. NORTON (202) 955-8500 Mary E. WALDRUP DAIMLERCHRYSLER Corp. 1000 Chrysler Drive Auburn Hills, MI 48326 (248) 512-4120 Counsel for Petitioner March 19, 2004 APPENDIX la APPENDIX A YSBRAND v. DAIMLERCHRYSLER CORP. 2003 OK 17 81 P.3d 618 Case Number: 97469 Decided: 02/25/2003 THE SUPREME COURT OF THE STATE OF OKLAHOMA Sheryl Ysbrand and Mary Cooney, individually and on be- half of all others similarly situated, Appellees, V. DaimlerChrysler Corporation, a Delaware Corporation, indi- vidually and as successor in Interest to Chrysler Corporation and Chrysler Corporation, a Delaware Corporation, individu- ally, Appellants. APPEAL FROM DISTRICT COURT, SEQUOYAH COUNTY Honorable John C. Garrett, Judge {0 Buyers asserted warranty and common law fraud claims against automobile manufacturer for alleged defects in front passenger seat air bags of certain of its minivans. Mat- ter was certified as class action and manufacturer appeals. AFFIRMED IN PART; REVERSED IN PART. Clyde A. Muchmore, Harvey D. Ellis, Jr., Courtney K. Warmington, Crowe & Dunlevy, Oklahoma City, Oklahoma for Appellants. Peter W. Herzog, III, Bryan Cave, St. Louis, Missouri, for Appellants. 2a Thomas G. Wolfe, Lyndon W. Whitmire, Phillips, McFall, ‘McCaffrey, McVay & Murrah, Oklahoma City, Oklahoma, for Appellants. Harry Scoufos, Sallisaw, Oklahoma, for Appellees. Darleen Jacobs, New Orleans, Louisiana, for Appellees. James Minge, New Orleans, Louisiana, for Appellees. Joseph J. McKernan, Baton Rouge, Louisiana, for Appellees. Patrick W. Pendley, Plaquemine, Louisiana, for Appellees. Robert E. Reeves, Lexington, Kentucky, for Appellees. Anthony Majestro, Masters & Taylor, Charleston, West Vir- ginia, for Appellees. Stephen E. Van Gaasbeck, San Antonio, Texas, for Appel- lees. Hodges, J. 41 This opinion reviews the trial court’s determina- tion that this dispute meets the requirements for a class action found at Title 12, section 2023, of the Oklahoma Statutes. The class certification order is affirmed as to the warranty claims asserted but is reversed as to the claim for fraud and deceit. {2 Defendant, DaimlerChrysler, is a Delaware corpo- ration with its principal place of business in Michigan. It manufactured over one million 1996 and 1997 model “mini- vans” equipped with front passenger seat air bags. Plaintiffs, each an owner of one of the minivans, have asserted Uniform Commercial Code claims for “breach of express warranty,” “breach of implied warranty of merchantability,” and “breach of implied warranty of fitness.” In addition, they assert a claim for “fraud and deceit.” 43 Plaintiffs’ claims are based on their assertion that the front passenger seat air bags are defective due to “1) their propensity to deploy with overly aggressive force and 2) their propensity to deploy during a low speed collision.” Plaintiffs further assert that DaimlerChrysler failed to warn purchasers 4 i ; 3a that this defect has the potential to kill or seriously injure a child or small adult seated in the front passenger seat. Ac- cording to Plaintiffs, there are air bags available which de- ploy with less force and at higher collision speeds. They claim that these bags are currently used as replacements when a bag has been deployed. Plaintiffs seek damages in an amount sufficient to allow owners to install the “safer” air bags or, in the alternative, replacement of the “defective” air bags by DaimlerChrysler. {4 Following initial discovery and a hearing, the trial court issued a twenty-one page order certifying a class con- sisting of Plaintiffs and [a]ll entities and adult persons domiciled or residing in _ any of the fifty states of the United States of America or in the District of Columbia, who purchased and who, ac- cording to motor vehicle registration records maintained by their respective states or districts of residence or domicile, can be identified as the current owner of at least one (1) model year 1996-1997 “minivan” automo- bile marketed by defendant as Chrysler Town & Country or Chrysler Minivan or Plymouth Voyager or Plymouth Grand Voyager or Dodge Caravan, which was manufac- tured by defendant for sale in any of the fifty states of the United States of America or the District of Colum- bia, or which defendant marketed in any of the fifty states of the United States of America or the District of Columbia as a product of its own manufacture, which was configured at the time of original sale or occupancy by at least five (5) passengers, and which contains on the ' Plaintiffs’ claim for fraudulent misrepresentation is based not on a failure to warn of the dangers of air bags generally. Rather, the claim is based on the failure to warn small adults and chiidren over 12 of the dangers of over aggressive de- ployment of the air bags and their tendancy to deploy at low speed impacts. 4a driver side and/or passenger side of the forward seating area a passive restraint system commonly known as an “air bag,” which employs a fabric-covered envelope de- signed to expand rapidly with sodium azide or other gases and thus cushion a front-seat occupant when the system is activated by a sensor during a frontal collision. Excluded from the class were (1) those who have suffered personal injury from air bag deployment, (2) DaimlerCrysler employees and affiliates, (3) judges and judicial personnel, (4) those who have had their air bags deactivated, and (5) those who had the original air bags replaced. DaimlerChrys- ler now appeals the class certification order and the matter has been retained for this Court’s review. 45 _A trial court’s class certification order is reviewed for abuse of discretion. Scoufos v. State Farm Fire & Cas. Co., 2001 OK 113, 41 P.3d 366, 367. “An abused judicial discretion is manifested when discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Patel v. OMH Med. Ctr. Inc., 1999 OK 33, * The trial court’s class certification followed the litigation of similar issues in Louisiana and unsuccessful attempts to remove this case to federal court. The decision in Jn re Air Bag Products Liability Litigation, 7 F.Supp.2d 792 (E.D. La. 1998), involved allegations of air bag defects against several automobile manufac- turers and dealers. All claims were dismissed or summarily adju- dicated in favor of defendants under Louisiana and Texas law. No class certification was involved. Thus, nothing about that decision impacts the issue of class certification presented in this litigation. The class certification also followed the refusal of the Na- tional Highway Traffic Safety Administration (NHTSA) to further investigate following its determination that vehicles, including 1996 Chrysler minivans, “had rates of air bag deployments per 100 collision claims that are similar to that of many other vehicles.” In doing so, NHTSA noted its “need to allocate and prioritize [its] limited resources.” Sa 987 P.2d 1185, 1194. If the record does not demonstrate that the requisites for class action have been met, the trial court has abused its discretion. Greghol Ltd. Partnership v. Oryx Energy Co., 1998 OK CIV APP 111, 959 P.2d 596, 598. “The pragmatically correct action, in the face of a close ques- tion as to certification, has been said to sustain certification because if it develops later during the course of the trial that the order is ill-advised, the order is always (prior to judgment on the merits,) subject to modification.” Perry v. Meek, 618 P.2d 934, 940 (Okla. 1980). {6 Class action is a procedural device provided by Ti- tle 12, section 2023, of the Oklahoma Statutes. It permits Section 2023 provides: A. PREREQUISITES TO A CLASS ACTION. One or more members of a class may sue or be sued as representative par- ties 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 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 subsection A of this section are satisfied and in addition: 1. The prosecution of separate actions by or against indi- vidual members of the class would create a risk of: a. inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party oppos- ing the class, or [Footnote continued on next page] 6a [Footnote continued from previous page] b. adjudications with respect to individual members of the class which would as a practical matter be disposi- tive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or 2. The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby mak- ing appropriate final injunctive relief or corresponding de- claratory relief with respect to the class as a whole; or 3. The court finds that the questions of law or fact com- mon 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 ac- tions, 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, and d. the difficulties likely to been countered in the man- agement of a class action. C. DETERMINATION BY ORDER WHETHER CLASS ACTION TO BE MAINTAINED; NOTICE; JUDGMENT; ACTIONS CONDUCTED PARTIALLY AS _ CLASS ACTIONS. 1. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under [Footnote continued on next page] SE | 7a [Footmote continued from previous page] this subsection may be conditional, and may be altered or amended before the decision on the merits. 2. In any class action maintained under paragraph 3 of subsection B of this section, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The no- tice shall advise each member that: a. the court will exclude him from the class if he so re- quests by a specified date, b. the judgment, whether favorable or not, will include all members who do not request exclusion, and c. any member who does not request exclusion may, if he desires, enter an appearance through his counsel. Where the class contains more than five hundred (500) mem- bers who can be identified through reasonable effort, it shall not be necessary to direct individual notice to more than five hundred (500) members, but the members to whom individual notice is not directed shall be given notice in such manner as the court shall direct, which may include publishing notice in newspapers, magazines, trade journals or other publications, posting it in appropriate places, and taking other steps that are reasonably calculated to bring the notice to the attention of such members, provided that the cost of giving such notice shall be reasonable in view of the amounts that may be recov- ered by the class members who are being notified. Members to whom individual notice was not directed may request exclu- sion from the class at any time before the issue of liability is determined, and commencing an individual action before the issue of liability is determined shall be the equivalent of re- questing exclusion from the class. 3. The judgment in an action maintained as a class action under paragraphs 1 or 2 of subsection B of this section, whether or not favorable to the class, shall include and de- [Footnote continued on next page] 8a [Footnote continued from previous page] scribe those whom the court finds to be members of the class. The judgment in an action maintained as a class ac- tion under paragraph 3 of subsection B of this section, whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in paragraph 2 of subsection C of this section was directed, and who have not requested exclusion, and whom the court finds to be members of the class. 4. When appropriate: a. an action may be brought or maintained as a class ac- tion with respect to particular issues, or b. aclass may be divided into subclasses and each sub- class treated as a class. The provisions of this section shall then be construed and applied accordingly. D. ORDERS IN CONDUCT OF ACTIONS. In the conduct of actions to which this section applies, the court may make appropriate orders: 1. Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; 2. Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the represen- tation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; 3. Imposing conditions on the representative parties or on intervenors; 4. Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent per- sons, and that the action proceed accordingly; and [Footnote continued on next page] 9a plaintiffs to “vindicat[e] the rights of individuals who other- wise might not consider it worth the candle to embark on liti- gation in which the optimum result might be more than con- sumed by the cost.” Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 338 (1980). Section 2023 requires, as does its fed- eral counterpart; numerosity, commonality, typicality, and adequacy of representation. In addition, the court must find that “questions of law or fact common to the members of the class predominate over any questions affecting only individ- ual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Jd. at § 2023 (B)(3). {7 DaimlerChrysler challenges the trial court’s de- termination that each of these requirements was demon- strated by Plaintiffs. Its challenge is focused primarily on whether common questions of law and fact predominate and whether a class action is superior to other available methods of adjudicating the controversy. DaimlerChrysler also argues that the class representatives and their counsel are inade- quate. [Footnote continued from previous page] 5. Dealing with similar procedural matters. The orders may be combined with an order under Section 16 of this act and may be altered or amended as may be desirable from time to time. E. DISMISSAL OR COMPROMISE. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shali be given to all members of the class in such manner as the court directs. aS a 10a I. COMMON ISSUES OF LAW OR FACT A. Issues of Law 48 DaimlerChrysler argues that common issues of law or fact do not predominate because varying state laws will apply to the asserted claims and defenses. It cites KMC Leasing, Inc v Rockwell-Standard Corp., 2000 OK 51, 9 P.3d 683, in which this Court found no abuse of discretion in the trial court’s refusal to certify a class for lack of predominat- ing issues. The proposed class consisted of private aircraft owners who alleged four different product defects against multiple defendants in different states. The matter required application of differing terms in hundreds of nonuniform air- craft purchase contracts. Jd. at 690-691. Because the sub- stantive law of numerous states applied to issues which were not common to the entire class, there was no predominance and the trial court did not err in refusing to certify the class. Id. 49 In this matter the trial court determined that “the alleged choice of law problems identified by [DaimlerChrys- ler did] not bar certification.” It relied upon Jn re Bridge- stone/Firestone Inc Tires Liability Litigation, 155 F. Supp.2d 1069 (S.D. Ind. 2001), which granted class certification upon a finding of predominance. 410 In Firestone, a federal district court sitting in Indi- ana determined which state’s substantiative law applied to a nationwide state law class action. Buyers had asserted tort and contract claims against Ford Motor Co. and Bridge- stone/Firestone, Inc. for alleged tire defects on Ford’s Ex- plorer model sport utility vehicle. The court reasoned that because “the relationship between the parties [was] simply that of buyer and seller,” the place where the products were purchased was not significant to the claims for product de- fect. Jd. at 1082. Rather, it was “the conduct of Defendants as manufacturers” which was the focus of the litigation. Jd. Pee Te eee lla Therefore, the law of Michigan and Tennessee, the principal places of business of the manufactures, controlled. {11 The trial court’s application of Firestone to this matter evidences its intent to apply the substantive law of Michigan, DaimlerChrysler’s principal place of business, to the claims and defenses asserted. Application of Oklahoma’s choice of law rules supports that conclusion. 1. Choice of Law - UCC Claims {12 The “most significant relationship” test applies to an action for breach of warranty in a sale of goods under Ar- ticle 2 of the UCC. See Collins Radio Co. v. Bell, 623 P.2d 1039, 1046-47 (Okla. Ct. Civ. App. 1980) (“The same ra- tionale for accepting the [most significant relationship test] for torts dictates that its application should be made to ac- tions that fall under Article 2 of the Uniform Commercial Code.”) See also Bohannan y. Allstate Ins. Co., 820 P.2d 787, 795 (Okla. 1991) (“[T]he UCC supports the most sig- nificant relationship test as applied in Collins Radio.”) This test is guided by principles and contacts from the Restate- ment (Second) of Conflicts (1971). It determines which , The Court of Appeals for the Seventh Circuit reversed the de- cision. See In re Bridgestone/Firestone Inc., 288 F.3d 1012 (7th Cir. 2002) cert. den. 71 USLW 95368 (U.S. Jan. 16, 2003). It did so based on its determination that “Indiana is a lex loci delecti state: in all but exceptional cases it applies the law of the place where harm occurred.” Jd. at 1016. Asa result, “Indiana’s choice- of-law rule selects the 50 states and multiple territories where the buyers live, and not the place of the sellers’ headquarters, for these suits.” Jd. at 1018. Thus, “[b]Jecause these claims must be adjudi- cated under the law of so many jurisdictions, a single nationwide class is not manageable.” Jd. Although the Seventh Circuit re- jected the lower court’s conclusion as to which choice of law rule Indiana utilizes, the lower court’s analysis under a most significant relationship test remains persuasive. 12a state’s law is most directly connected to the parties and the transaction. - 413 Under section 6 of the Restatement, the factors relevant to any choice of law decision include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (0) (d) (e) (f) (g) the relevant policies of other interested states and the relative interests of those states in the determina- tion of the particular issue, the protection of justified expectations, the basic policies underlying the particular field of law, certainty, predictability and uniformity of result, and ease in the determination and application of the law to be applied. The contacts to be considered in applying these principles to an issue in contract include: (a) (b) the place of contracting, the place of negotiation of the contract, (c) the place of performance, (d) (e) the location of the subject matter of the contract, and the domicile, residence, nationality, place of incor- poration and place of business of the parties. The contacts are to be evaluated according to their rela- tive importance with respect to the particular issue. 5 ‘ : —— : ; This rule applies only in situations where the parties have not chosen the applicable law. The parties have not directed this court to a choice of law provision in their contract. 4 x “aoe ee om —e es S iG SARC eS LO RAL ce WORE He! 13a Id. at § 188(2) (emphasis added). However, a third provi- sion, section 191, applies to a sale of interests in chattel. “So in a contract for the sale of goods the most significant contact is the place of delivery unless another state has a more sig- nificant relationship.” Collins Radio, 623 P.2d at 1047. As comment f. to section 191 explains: “On occasion, a state which is not the place of delivery will nevertheless, with re- spect to the particular issue, be the state of most significant relationship to the transaction, the parties and the chattel and hence the state of the applicable law.” The particular dispute in this matter presents such an occasion in which “the local law of some state other than that of delivery should be ap- plied in any event because of the intensity of the interest of that state in the determination of the particular issue.” Jd. 914 All 50 states and the District of Columbia bear some relationship to the parties and transactions in this dis- pute by virtue of the nationwide sales of the minivans. The question becomes whether the relationship of each state where the vehicles were purchased is more significant to the parties and this litigation than that of Michigan, the principal place of business of DaimlerChrysler. 415 The Restatement’s section 188(2) contacts of the place of contracting, the place of negotiation and perform- ance, and the location of the subject matter are of diminished significance to the sales of the minivans. The UCC warran- ties are not something which is negotiated in the purchase of a new car. Thus, the relative interest of each buyer’s home state in applying its vey».on of the UCC is more or less equal. By contrast, Michigas s interest in having its regulatory scheme applied to the conduct of a Michigan manufacturer is most significant. Michigan is where the decisions concern- ing the design, manufacture, and distribution of the minivans were made. Michigan is the only state where conduct rele- vant to all class members occurred. The principal place of DaimlerChrysler’s business is the most important contact with respect to the UCC warranty claims. 416 The selection of Michigan law furthers the rele- vant factors stated in section 6 of the Restatement. The needs ita of the interstate system and the basic policies of predictabil- ity and uniformity of result require that the issue of product defect be determined in one forum with one result rather than in 51 jurisdictions with the very real possibility of conflicting decisions. While the interest of each home state in applying its local law is significant, Michigan’s interest in the conduct of its masiufacturer, and thus its connection to the warranty issues, is greater. Michigan law applies. It should be noted that this conclusion is consistent with the constitutional im- perative that “for a state’s substantive law to be selected in a constitutionally permissible manner, that state must have a significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamen- tally unfair.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-313 (1981)). 2. Choice of Law - Fraud and Misrepresentation 6 ; . 417 Section 148 of the Restatement applies to actions to recover pecuniary damages for false representations ° § 148. Fraud and Misrepresentation (1) When the plaintiff has suffered pecuniary harm on account of his reliance on the defendant’s false representations and when the plaintiffs action in reliance took place in the state where the false representations were made and received, the local law of this state determines the rights and liabilities of the parties unless, with re- spect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied. (2) When the plaintiffs action in reliance took place in whole or in part in a state other than that where the false representations were made, the forum will consider such of the following contacts, among others, as may be present in the particular case in determin- ing the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties: [Footnote continued on next page] Snel Bah Si Bal ba ion 15a whether fraudulent, negligent, or innocent. Subsection (2) applies to this dispute because the nationwide representations in DaimlerChrysler’s advertising were made in states outside each class member’s home state. The home state is where each class member acted in reliance on those representations by purchasing a minivan. Thus, this Court is directed to con- sider: (a) the place, or places, where the plaintiff acted in reli- ance upon the defendant’s representations, (b) he place where the plaintiff received the representa- tions, (c) the place where the defendant made the representa- tions, (d) the domicil, residence, nationality, place of incorpo- ration and place of business of the parties, (e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and [Footnote continued from previous page] (a) the place, or places, where the plaintiff acted in reliance upon the defendant’s representations, (b) the place where the plaintiff received the representations, (c) the place where the defendant made the representations, (d) the domicil, residence, nationality, place of incorporation and place of business of the parties, (e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and | (f) the place where the plaintiff is to render performance un- der a contract which he has been induced to enter by the false representations of the defendant. Re OI ar NS LOS l6a (f) the place where the plaintiff is to render perform- ance under a contract which he has been induced to enter by the false representations of the defendant. The comments to subsection (2) describe (a), (b), (c), and (d) as the “more important of these contacts.” Comment j. ar- ticulates the general approach: If any two of the above-mentioned contacts, apart from the defendant’s . . . place of business, are located wholly in a single state, this will usually be the state of the ap- plicable law with respect to most issues. So when the plaintiff acted in reliance upon the defendant’s represen- tations in a single state, this state will usually be the state of the applicable law, with respect to most issues, if (a) the defendant’s representations were received by the plaintiff in this state, or (b) this state is the state of plain- tiffs domicil.... 418 In this matter, each class member presumably re- ceived the representation in their home state, their place of domicile. Therefore, the contacts point to each class mem- ber’s home state for the applicable law. Applying the law of 51 jurisdictions to the fraud claim presents an overwhelming burden which would make the class unmanageable and a class action determination of that claim inappropriate. The class action certified by the trial court will go forward only on the warranty claims asserted. B. Issues of Fact 419 The trial court found that the operative facts giving rise to the claims against DaimlerChrysler raise two ques- tions which are common to the entire class: (1) whether the air bags are defective and (2) whether DaimlerChrysler with- held information concerning the alleged defect from those who purchased the minivans. As the trial court observed, “(t]he resolution of these issues will be applicable to each and every class member and will be dispositive of every class member’s claim.” As the fraud claim is no longer part of the class action, factual disputes concerning that claim no longer present litigable issues to be resolved. 17a {20 DaimlerChrysler argues that the need for individ- ual proof of each class member’s reliance on the express war- ranty defeats predominance. Plaintiffs respond that any need for particularized proof of reliance does not defeat the com- monality and typicality of the issue of product defect. 921 Whether individual findings of reliance are re- quired goes to the merits of the claims. It is a question of Michigan law. A need for individual findings would not, however, defeat class certification. “Factual variations in the individual claims will not normally preclude class certifica- tion if the claim arises from the same event or course of con- duct as the class claims, and gives rise to the same legal or remedial theory.” Lobo Explorations Co. v. Amoco Produc- tions, 1999 OK CIV APP 112, 991 P.2d 1048, 1055 (quoting Alpern v. Utili Corp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996). See also Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (“[W]here the lawsuit challenges a... prac- tice or policy that affects all of the putative class members .... Individual factual differences among the individual liti- gants or groups of litigants will not preclude a finding of commonality.”); Newton v. Merrill Lynch, 259 F.3d 154, 183 (3d Cir. 2001) (It is not required that “class members share every factual and legal predicate to meet the commonality and typicality standards.”). The trial court remains free to maintain the class with respect to particular issues or create subclasses should the need arise. See Okla. Stat. tit 12, § 2023(C)(4) (2001). II. SUPERIORITY A. Class Action versus Administrative Remedy. 22 DaimlerChrysler argues that a class action is not superior because the National Traffic and Motor Vehicle Safety Act impliedly preempts this warranty and common law tort action. Thus, it urges, the National Highway Traffic Safety Administration (NHTSA) must adjudicate this contro- versy. The Act, however, expressly provides that compliance with its provisions does not immunize a manufacturer from liability under common law or for warranty claims. 49 U.S.C. § 30103. 18a 4923 DaimlerChrysler also argues that, without regard to implied administrative preemption, the administrative rem- edy of a NHTSA complaint is superior to a class action. The argument must fail. 924 Acclass action may be maintained only when it is “superior to other available methods for the fair and efficient adjudication of the controversy.” Okla. Stat. tit. 12, § 2023(B)(3) (2001) (emphasis added). There is no adminis- trative method of adjudication available to Plaintiffs. The NHTSA has declined to investigate further. See supra n.1. An alternate method for adjudication must be available in order for it to be superior. §25 The question then becomes whether class action is superior to individual litigation. As the trial court found, the individual claims are not substantial enough to support indi- vidual litigation. In addition, the prosecution of separate in- dividual actions would inevitably result in inconsistent re- sults. B. Logistics of Class Management 926 Contrary to the assertion of DaimlerChrysler, a “very expensive and time consuming vehicle by vehicle in- spection” of each minivan is not required in order to deter- mine whether an owner is a class member. The class consists only of minivans configured for five or more passengers which have not had the air bags deactivated or replaced. A determination of whether a minivan retains an active factory equipped air bag can be made at the time of replacement of the air bag should the Plaintiffs prevail on the issue of prod- uct defect. 927 There will be logistical problems in any nation- wide class action. The fact that travel for counsel, parties, and witnesses will be necessary would be true no matter where the action was pursued. Plaintiffs have chosen Se- quoyah County. None of the logistical problems, however, prevent the trial court from resolving this dispute as a class action. As the trial court observed, the advantage of adjudi- a ROL Dre Kee rnin. 6 No Pt hee i oy 2 eh eh PO. att and 19a cating the common issues in a single proceeding far out- weighs the logistic demands of class treatment. lil. ADEQUATE PROTECTION OF THE ' INTERESTS OF THE CLASS {28 Section 2023(A)(4) requires that a class action may be maintained only if “[t]he representative parties will fairly and adequately protect the interests of the class.” This requirement is met when the record demonstrates that the class representatives interests do not conflict with those of the class and that the class representatives will fully and ef- fectively represent the interests of the class. See Black Hawk Oil, 969 P.2d at 346 & 347. 29 DaimlerChrysler asserts that “the class representa- tives and their counsel are inadequate.” Yet, it fails to iden- tify any divergence between the interests of the class repre- sentatives and those of the class. Rather, DaimlerChrysler suggests that Plaintiffs are inadequate class representatives because they were solicited to merely lend their names to a suit entirely controlled by Plaintiffs’ counsel. {30 The record in this matter supports the trial court’s finding that no improper solicitation of Plaintiffs occurred as well as its findings that Plaintiffs are adequately informed as to the facts of the case, their responsibilities as class repre- sentatives, and their knowledge of the litigation. As class representatives, Plaintiffs are not required to have an attor- ney’s knowledge of the litigation. {31 The trial court’s finding concerning Plaintiffs’ counsel is also supported by the record. The trial court did not, as DaimlerChrysler claims, merely parrot unsupported assertions made by Plaintiffs’ counsel concerning counsels’ experience and success in litigation when they drafted the 20a class certification order for the judge’s signature. The trial court based its conclusion that counsel was competent to prosecute the claims on counsels’ curriculum vitae and on the fact that some of the counsel had litigated class actions in that court. The trial court did not abuse its discretion in de- termining that the class representatives and their counsel are adequate to protect the interests of the class. CONCLUSION 432 This Court’s review of the decision to certify this matter as a class action reveals no abuse of discretion as to the warranty claims. Common questions of law and fact predominate, class action presents a superior method for ad- judicating the common issues, and the representative parties and their counsel are adequate to protect the interests of the class. This Court expresses no opinion as to the merits of any of the remaining claims and defenses asserted. AFFIRMED IN PART; REVERSED IN PART. Opala, V.C.J., Hodges, Lavender, Kauger, Summers, Boudreau, JJ., concur. Watt, C.J., Hargrave, J., concur in part; dissent in part. Winchester, J., dissents. ’ This Court rejects DaimlerChrysler’s suggestion that there is something improper or irregular in a trial judge signing an order which has been prepared by the prevailing party. : The class certification remains subject to modification and “may be altered or amended before the decision on the merits.” Okla. Stat. tit. 12, § 2023(C)(1) (2001). If necessary the class “may be divided into subclasses and each subclass treated as a class. Id. at § 2023(C) (4). —————————————————————————————————— Pree ec Ag BRA we 2la APPENDIX B IN THE DISTRICT COURT IN AND FOR SEQUOYAH COUNTY STATE OF OKLAHOMA SHERYL YSBRAND and MARY COONEY, Individually and on behalf of all others Similarly [Filed Feb. 14, 2002] situated, Plaintiffs, vs. Case No. CJ-2000-643 CORPORATION, A Delaware corporation, individually and as Successor in interest to Chrysler Corporation And CHRYSLER CORPORATION a Delaware corporation, individually, > ) ) ) ) ) ) ) ) ) DAIMLERCHRYSLER ) ) ) ) ) ) ) ) ) ) ) Defendants. MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION This Cause is before the Court on Plaintiff's Motion for Class Certification. This Court has reviewed and considered all of the pleadings in this matter, the parties’ respective 22a briefs, the documents, exhibits, presentations, admissions and arguments received in evidence during the class certification hearing commenced on October 9, 2001. Additionally, this Court considered the post-certification hearing submissions, motions and arguments. Based on the foregoing, the Court GRANTS plaintiffs’ motion based upon the following Find- ings of Fact and Conclusions of Law: FACTUAL BACKGROUND A. Plaintiffs’ Claims Class certifications in Oklahoma are governed by 12 OS. § 2023. Before proceeding to analyze the requirements of sec- tion 2023, it is necessary for the Court to analyze the factual background upon which the plaintiffs’ lawsuit rests. In doing so, the Court is cognizant of its role at this stage of the proceed- ings. As the United States Supreme Court has stated: [NJothing in either the language or history of Rule 23 ... gives a court any authority to conduct a prelimi- nary inquiry into the merits of a suit in order to deter- mine whether it may be maintained as a class action. In- deed, such a procedure contravenes the Rule .. .” Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974) (emphasis added). This Court, understanding that some dis- covery needs to be undertaken to understand the nature of the proposed class, has permitted the parties to conduct initial dis- covery and file extensive evidentiary submissions. Because this Court is heeding Section 2023’s requirement that the class certi- fication issue be resolved “as soon as practicable,” the Court has endeavored to carefully balance its obligation to conduct a full and complete review of the class issues with the Eisen ’s admo- nitions that “pre-trial hearings are to be carefully limited” and that “the trial court’s guess as to which party would prevail at trial should have no bearing on the allowance or disallowance of a proposed class action.” Eisen v. Carlisle and Jacquelin, 417 U.S. at 177. Consequently, like the numerous Courts ee a eR ee 23a which have followed Eisen’s holding, this Court, while con- ducting a review of the parties’ legal arguments and proposed proof, declines to undertake an examination of the merits of the claims and defenses in connection with a the class deter- mination. What, follows is a description of plaintiffs’ claims in this litigation. Defendant DaimlerChrysler is the manufacturer of sev- eral types of automobiles called “minivans”. The minivans manufactured by DaimlerChrysler include the Chrysler Town & Country minivan, Chrysler Minivan, Plymouth Voyager, Plymouth Grand Voyager, and Dodge Caravan. Each of these minivans is equipped a with passenger side air bag. The named plaintiffs, Sheryl Ysbrand and Mary Cooney, have asserted claims for breach of express warranty, breach of implied warranty of merchantability and breach of implied See Eggleston v. Chicago Journeyman Plumbers, 657 F.2d 890, 895 (7th Cir. 1981) (citing Eisen); Harris v. General Develop. Corp., 127 F.R.D. 658 (N.D. Ill. 1989) (“For the purpose of ruling on plaintiffs’ motion for class certification, plaintiffs’ allegations are taken as true and the court may not make an inquiry into the merits of the lawsuit.”); Peil v. National Semiconductor Corp., 86 F.R.D. 357, 365, 368 (E.D. Pa. 1980) (“The Court, when properly exercising its discretion, may consider the pleadings and facts procured through the discovery process to ‘identify the character or type (but not the merits) of plaintiffs claim and-then to determine whether there was a Class .... The Court will not engage in a discussion of the merits of the plaintiffs case in relation to this standard. [Eisen, supra)’). ; The Court believes that, while it cannot and should not resolve merits issues, it is important to understand the plaintiffs’ claims. The plaintiffs have presented to the Court an outline of their evi- dence and claims against the defendant. What follows is some of the claims proffered by the plaintiffs. The Court is providing this review to illustrate the nature of the claims—not because it has concluded that the plaintiffs’ position is correct. Suffice to say that the defendant vigorously contests the vast majority of the factual claims made by the plaintiffs. 24a warranty of fitness, all as provided by the Uniform Commer- cial Code, and fraud in the omission against DaimlerChrysler in the form of a class action suit. Plaintiffs, Sheryl Ysbrand and Mary Cooney are both owners of DaimlerChrysler minivans equipped with passen- ger side air bags. Plaintiffs have based their claims on the grounds that the passenger side air bags located in these mi- nivans are defective in nature and/or design based on: 1) their propensity to deploy with overly aggressive force and 2) their propensity to deploy during a low speed collision. Plaintiffs assert that the air bags installed in their minivans are unreasonably dangerous and have, the potential to kill or seriously injure a child or adult of small stature seated in the front passenger seat of their minivans. Plaintiffs have alleged that there now exist air bags which deploy with less force and at higher collision speeds than the air bag originally installed in their vehicle. Plaintiffs have requested that they and the members of the class be compensated in an amount sufficient to allow them to have these allegedly safer air bags installed in their minivans, or in the alternative, that DaimlerChrysler be ordered to establish a national inspection protocol by which each minivan fitting the class definition would be in- spected and retrofitted with a newer, safer air bag, as neces- sary. Plaintiffs seek to represent a class composed of the fol- lowing persons: “Themselves and all entities and adult persons domiciled or residing in any of the fifty states of the United States of America or in the District of Columbia, who pur- chased and who, according to motor vehicle registration records maintained by their respective states or districts of residence or domicile, can be identified as the current owner of at least one (1) model year 1996-1997 “mini- van” automobile marketed by defendant as Chrysler Town & Country or Chrysler Minivan or Plymouth Voyager or Plymouth Grand Voyager or Dodge Cara- van, which was manufactured by defendant for sale in any of the fifty states of the United States of America or 1 peeeerreeeeal BONDE wes 25a the District of Columbia, or which defendant marketed in any of the fifty states of the United States of America or the District of Columbia as a product of its own manufacture, which was configured at the time of origi- nal sale or occupancy by at least five (5) passengers, and which contains on the driver side and/or passenger side of the forward seating area a passive restraint system commonly known as an “air bag,” which employs a fab- ric-covered envelope designed to expand rapidly with sodium azide or other gases and thus cushion a front-seat occupant when the system is activated by a sensor during a frontal collision.” Plaintiffs seek to certify a national class action against DaimlerChrysler for the purpose of litigating all claims ex- tant for the subject airbags in one forum and proceeding. While two different model years and a number of differ- ent names are attached to the subject vehicles, the record in this case establishes that, at the time of manufacture, all of the vehicles in the class contained the same front seat pas- senger occupant restraint systems. Further, at the time of manufacture, the alleged defects existed in each of these ve- hicles. In addition, with respect to the front-seat occupant protection systems, the owners manuals were the same. The defendant has presented evidence that, subsequent to manufacture, some of the vehicles in the proposed class have been involved in accidents that resulted in the replace- ment of the airbags with a newer, lower powered airbag. The defendant also argue that some potential class members may have not had their airbag replaced after a collision or other- wise had it disconnected. The defendant further notes that some of the class may have had an on/off switch installed in the vehicle. In addition, sometime after the 1996 model ve- hicles began to be sold, the defendant began to sell the sub- ject vehicles with a different warning label that was subse- quently mailed to at least some of the previous purchasers. Saree ere ns earner Veen er Oe 26a CONCLUSIONS OF LAW A. General Legal Standards Governing Class Certi- fication Class actions are an “invention of equity” born of the need to provide a procedural device so that large groups of individuals would not be disabled by their sheer number from enforcing their rights. See WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1751 (2" Ed. 1986). Because Oklahoma’s class action procedure closely mirrors Federal Rule 23, Oklahoma courts are to look to federal law for guid- ance and enlightenment on class action issues. See Shores v. First City Bank Corp., 689 P.2d 299, 300 (Okla. 1984). The United States Supreme Court has noted that “[c]lass actions serve an important function in our system of civil justice.” Gulf Oil. Co. v. Bernard, 452 U.S. 89, 99 (1981). This is be- cause class actions permit plaintiffs to “vindicate the rights of individuals who otherwise might not consider it worth the candle to embark on litigation in which the optimum result might be more than consumed by the cost.” Deposit Guar. Nat’! Bank v Roper, 445 U.S. 326, 338, reh’g denied, 446 U.S. 947 (1980). Class certification is a procedural issue that should be re- solved expeditiously. |The Oklahoma Pleading Code § 2023(c)(1) mandates that the determination of class certifi- cation shall be determined “as soon as practicable after the commencement” of the action. In the face of a close ques- tion regarding certification, the pragmatically correct ac- tion is to sustain certification because, if it develops later during the course of the trial that the order is ill-advised, the order is always subject to modification. Perry v. Meek, 618 P.2d 934,940 (Ok. 1980), citing Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968), cert. denied 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969). B. Legal Standard Governing Class Cer [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1255%3A1. Public record. Not legal advice.