Petition for Writ of Certiorari — General Motors Corp. v. Ford
Supreme Court brief2005
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Petitioner General Moters Corporation (“GM””)
respectfully prays that a writ of certiorari issue to review the
judgment of the Oklahoma Court of Civil Appeals in this
case.
OPINIONS BELOW
The opinion of the Court of Civil Appeals of the State of
Oklahoma (App., 1a-9a) is unreported. The opinion and order
of the District Court in and for Bryan County, Oklahoma,
granting. Respondents’ Motion for Class Certification
(App., 10a-31a) is unreported.
STATEMENT OF JURISDICTION
The judgment of the Oklahoma Court of Civil Appeals
was entered on December 3, 2004. GM filed a timely Petition
for Certiorari with the Supreme Court of Oklahoma
on December 23, 2004. On April 4, 2005, the Supreme
Court of Oklahoma denied GM’s Petition for Certiorari.
(App., 32a). 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 33a. 7
STATEMENT OF THE CASE
The fifty States have decided to adopt widely divergent
legal rules regarding limitations on actions for breach of
warranty by their citizens. The issue raised in this case is
whether a single State can use its class certification and
choice-of-law rules to circumvent the legal rules and
limitations adopted by the 49 other States. The Oklahoma
Court of Civil Appeals allowed certification of a nationwide
plaintiff class only because, following Oklahoma Supreme
Court precedent, Oklahoma law allows the application of one
State’s laws to nationwide class actions involving hundreds
of thousands of warranty claims, including the claims of the
2
vast majority of class members who have essentially no
contact with the chosen State. Compounding this error, the
court below also held that it was unnecessary to determine
exactly which State’s law would be applied to all-class
members until a trial on the merits. In other words, the court
below held that class certification was allowable since one
State’s law could be applied to all class members, but that
class members would have to make the decision to opt out
of the litigation or remain as class members without knowing
what State’s law would be applied to the claims asserted.
1. This lawsuit was brought in the state court in Bryan
County, Oklahoma, as a putative nationwide class action.
App., at lla. The class encompasses over 420,000 Chevrolet
Malibu and Oldsmobile Cutlass vehicles' purchased, and in
many instances resold, by consumers in all fifty States.
Respondents alleged that the airbag system on the P-90 was
defective because approximately one in every six thousand
vehicles has an unwanted deployment.” However, the class
definition excluded any person who had ever experienced a
problem with the airbag in their vehicles. /d. According to
Respondents’ allegations, the basis of the suit is that 70
vehicles, out of the 420,000 included in the class, might at
some time in the future experience an unwanted airbag
deployment.
2. For causes of action, Respondents asserted breach of
express warranty, breach of implied warranty of
merchantability, breach of the implied warranty of fitness
for a particular purpose, violation of the Magnuson-Moss
Warranty Act, 15 U.S.C. § 2310, and “fraud, restitution-unjust
1. Both vehicle models are often referred to in the record by
their platform designation, P-90.
2. The National Highway and Transportation Safety
Administration (NHTSA) inquired about inadvertent airbag
deployment in the P-90 vehicles, and closed its inquiry without taking
any action. App., at 16a.
3
enrichment.” App., at 2a. Respondents subsequently
withdrew the fraud claim from class consideration. /d. at 7a.
Ultimately, the trial court certified the following class:
All current owners and lessees of 1997-1999
General Motors P-90 platform automobiles
manufactured in Oklahoma, encompassing all
persons or entities resident in the United States
who own or lease Chevrolet Malibu and
Oldsmobile Cutlass models manufactured before
April 24, 1999. Excluded from this class is any
person, firm, corporation, trust or other entity
related to or affiliated with Defendant General
Motors or any person who has or had an action
for personal injury or death against General
Motors as a result of an inadvertent airbag
deployment in such a vehicle.
Id. at 30a. Notably, 1997-1999 P-90 platform automobiles
were manufactured in Oklahoma City, Oklahoma, and
Wilmington, Delaware. However, Respondents did not seek
to include in the class any owners, purchasers, or lessees of
P-90 vehicles assembled in Wilmington, Delaware. Although
Respondents argued to the trial court that Oklahoma law
should govern the claims of all class members, the trial court
specifically deferred making atiy ruling regarding what law
would be applicable to the certified class. Jd. at 28a. In this
regard the trial court stated:
[W]hen the Court makes its choice of law
decision, the Court is mindful that the Oklahoma
Supreme Court resolved this issue in Ysbrand v.
Daimler-Chrysler, 81 P.3d 618 (Okla. 2003),
where it held that a nationwide class of owners of
Minivans equipped with defective airbags could
properly bring their UCC warranty claims, express
and implied, in the Oklahoma courts.
Id. at 28a.
4
GM appealed, raising federal-law issues in its initial
statement of issues on appeal and throughout its appellate
briefing. The Oklahoma Court of Appeals affirmed, holding that
Oklahoma law allows the application of one State’s laws to all
class members’ claims, specifically stating that:
Under Ysbrand {v. Daimler Chrysler Corp., 2003
OK 17, 81 P.3d 618, cert. denied 124 S.Ct. 2907
(2004)}, Oklahoma’s choice of law rules point to
the application of only one State’s law to the class’
UCC warranty claims, namely, the State where GM’s
principal place of business is located and where
decisions concerning the design, manufacture, and
distribution of the P-90 air bag systems were made.
Id. at 6a-7a. The Court then held, however, that the applicable
state law need not be identified prior to certification but rather
could await trial on the merits, stating:
The trial court has not yet determined in which State -
this conduct occurred. It need not do so until it
reaches the merits of this action.
Id. Finally, the Court also held that identification of class
members could also wait until the conclusion of the trial, stating:
The trial court’s judgment will “describe those
whom the Court finds to be members of the class.”
12 0.S. 2001 § 2023(c)(3).
Id. at 9a.
3. On December 23, 2004, GM filed a petition for certiorari
with the Oklahoma Supreme Court seeking review of the Court
of Appeals’ opinion. Again, GM raised federal-law issues in its
petition for certiorari. On April 4, 2005, the Oklahoma Supreme
Court issued a one-line order denying the petition for certiorari,
with six judges concurring in that decision, two dissenting, and
one justice not participating. Jd. at 32a. Given this decision,
GM has no further appellate options in the Oklahoma state court
system.
5
REASONS FOR GRANTING THE PETITION
The courts of Oklahoma have sanctioned an application
of choice-of-law principles that, applied to an individual
plaintiff, plainly would be constitutionally 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 jurisdictions violates the
Due Process and Commerce Clauses’ restrictions on
individual States’ ability to extend their regulatory reach
beyond their own borders. Notwithstanding this Court’s prior
guidance, the court below, consistent with other Oklahoma
cases, allowed the Due Process and Commerce Clause
protections to be diluted in order to expedite classwide
adjudication. Oklahoma’s choice-of-law and class
certification decisions are becoming a means of overriding
the regulatory decisions of sister States. This Court should
grant review to provide much-needed guidance to courts
considering requests to certify multistate plaintiff classes in
actions premised on State law.?
I. The Oklahoma Court’s Classwide Choice-of-Law
Analysis Conflicts With Decisions Holding That Due
Process Requires An Analysis Specific To Each Plaintiff
This Court has consistently held that plaintiffs in both
individual and class actions do not enjoy an unfettered right
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
3. The Class Action Fairness Act of 2005 (“CAFA”) was passed
to address the abuses of the class action process occurring in state
courts, including “making judgments that impose their view of the
law on other states and bind the rights of residents of these states.”
CAFA § 2(a)(4)(C). Unfortunately, there are numerous cases, like
this one, which were pending in state courts before the CAFA was
passed and, without this Court’s guidance, will be subject to the
abuses outlined in the CAFA.
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or no connection with the underlying conduct, as the Due
Process 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 potential plaintiff, not to the litigation as a
whole with the goal of certifying a class. The court below
ignored these decisions and instead applied a constitutionally
deficient analysis, albeit one endorsed by the Oklahoma
Supreme Court.
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
decision, 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 courts have erred by applying a different
choice-of-law rule in class actions, with the express purpose
to make a nationwide class possible.
“The starting point for analyzing constitutional limits on
choice-of-law rules in class actions is this Court’s decision
in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985),
which the court below cited but misconstrued. App. at 7a-
8a. In Shutts, this Court considered the claims of a multistate
class of plaintiffs who brought suit in Kansas state court
against an out-of-state corporation. The state court agreed
with plaintiffs that Kansas law should govern the claims of
the entire class, citing 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. /d. at 803.
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This Court reversed, holding that Kansas could not
constitutionally 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 U.S. at
819-20. The choice of law was anything but academic since
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. /d. at 817-18.
This Court specifically rejected the notion that these
limitations can be relaxed in order to facilitate class action
adjudication, holding that “constitutional limitations [on
choice of law] must be respected even in a nationwide class
action” and that a state “may not take a transaction with little
or no relationship to the forum and apply the law of the forum
in order to satisfy the procedural requirements that there be
common issue of law.” 472 U.S. at 821. Regardless of the
form of the litigation, these constitutional principles must
be applied to the claims of each class member since-the State
whose law is applied “must have a ‘significant contact or
Significant aggregation of contacts’ 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 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 plaintiffs’ claims
artificially and make them suitable for class-action
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adjudication. /d. at 821. The class action, the Court stressed,
is nothing more than a procedural device; the Constitution’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
controlling 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 /aw without limitation: “If a plaintiff
could choose the substantive rules to be applied to an action
... the invitation to forum shopping would be irresistible.”
Id. (quoting Allstate, 449 U.S. at 337 (Powell, J., dissenting))
(internal quotation marks omitted; 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 unfair.” /d. at 822. That constitutional
limitation precluded applying Kansas law to transactions
involving property outside Kansas, an out-of-state defendant,
and, for the most part, non-Kansas plaintiffs.
Shutts makes clear that the Oklahoma court erred by
certifying a nationwide class according to an Oklahoma
choice-of-law rule favoring classwide adjudication. 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 U.S. at 821, to justify applying
either state’s law on an individual basis. Rather, the state
court committed precisely the error that Shutts condemns by
forsaking individualized assessment of contacts for the sake
of classwide adjudication.
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The Oklahoma court’s decision that one State’s law could
govern the claims of every class member in the country,
contrary to customary choice-of-law principles and the
reasonable expectations of not only GM but also class
members, creates exactly the sort of unfair and arbitrary result
that Shutts forbids. Oklahoma courts have recognized the
general choice of law rule that “in a contract for a sale of
goods, the most significant contact is the place of delivery
unless another State has a more significant relationship.”
Collins Radio Co. of Dallas, Tex. v. Bell, 623 P.2d 1039,
1047 (Okla. Ct. App. 1980); ReEsTaTEMENT (SECOND) OF
ConFLict OF Laws § 191 & cmts. e, f. Yet, this rule is ©
now routinely abandoned in Oklahoma once class action
allegations are made. Since every State retains a significant
interest in applying its own warranty law to products sold
within its borders, that interest cannot be trumped by the
desire of one State to allow nationwide class actions.
Although conducting the choice-of-law analysis on a
classwide basis would conflict squarely with this Court’s
holding in Shutts, the application of one State’s law to all
class members’ claims also contravenes other decisions of
this Court. For example, in Home Ins. Co. v. Dick, 281 U.S.
397 (1930), this Court held that Texas could not
constitutionally 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] liability [where] the parties ha[d] agreed that there
should be none.” /d. 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 required to be done in Texas.” /d. at 408. This Court
accordingly held that applying Texas law would violate the
defendant’s due process rights. See also, e.g., Allstate, 449
U.S. at 310-11 (plurality opinion) (Dick stands “for the
proposition that if a State has only an insignificant contact
10
with the parties 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 litigant were frustrated” by the state court’s application
of a different 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 resuit would be obtained 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 the party performed elsewhere — as in this case,
in which plaintiffs’ allege breach of express and implied
warranties in connection with the sale of P-90 vehicles in
every State. 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 contacts 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
precludes courts from applying by rote the law of the forum,
the law that facilitates class certification, or the law of the
plaintiffs’ election. The federal courts of appeals and several
state courts have applied that teaching and held that an
individualized choice-of-law analysis is required before any
multistate class involving state-law claims may be certified.
1]
Other jurisdictions, however, have adopted rules similar
to that espoused by Oklahoma, ordering the classwide
application of a single State’s law in order to facilitate the
adjudication of nonresidents’ claims. This Court’s review is
warranted to resolve this conflict.
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” requirements
for class certification. Oklahoma and a few other jurisdictions
have departed from this rule, creating a forum-shopping
incentive that federal Erie ruies are designed to mitigate,
see, e.g., Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,
496 (1941).
The Third Circuit has spoken most directly to this issue.
In Georgine v. Amcham Products, 83 F.3d 610 (3°¢ Cir. 1996),
aff'd sub nom. Amcham 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 plaintiffs
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 (S® Cir. 1996). The court reached this
conclusion despite arguably compelling policy reasons for
nationwide 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 dissenting in part); Georgine, 83 F.3d at 634. The
Third Circuit’s reasoning applies with even greater force to
cases like this one: “no injury” class actions that do not even
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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
attempt, much like Respondents’, to satisfy the commonality
and predominance requirements for class certification by
demanding the application of a single State’s law. The
putative class in Zinser v. Accufix Research Institute, 253
F.3d 1180 (9" Cir. 2001), asked the district court to certify a
nationwide class and to appiy the products liability law of
California, the forum State. /d. 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
members.” /d. at 1187. The court also rejected the plaintiffs’
fallback position, to apply the law of the defendant’s principal
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.
Id. 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 (11" 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 impropriety
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 auto maker in which, as here,
13
UCC warranty provisions adopted by the various States
provided 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
existence 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,
or of selected States. /d. at 1016 & n.90. As in this case; the
lower court allowed the perceived virtue of unified
adjudication 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. Wuite & R. Summers, UNIFORM COMMERCIAL Cope 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’ holding that selecting the law of a
single State would be unconstitutional without a showing
that that State “had a significant relationship to each class
member’s claim.” Jd. at 1016 n.90.
The state courts, which in recent years have become 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 airbag
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
14
Corp., 810 A.2d 137, 158-59 (Pa. Super. 2002). The appellate
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 clarified that it would not “apply
ihe law of the state where a defendant is headquartered to
every claim for economic damages that can be alleged 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 interpreted Henry
Schein, read together with Shutts, to bar precisely the sort of
class-driven choice-of-law analysis that the Oklahoma 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 cautioned that such an approach was
unconstitutional: “The analysis must be conducted on an
individual basis; a nationwide class is not entitled to a ‘looser’
analysis merely because 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, ignored those
accepted choice-of-law principles and overrode GM’s and
the class members’ justified expectations.
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Not every state court has so faithfully applied Shutts.
Some States have joined Oklahoma in implementing
choice-of-law rules that expressly facilitate the certification
of a nationwide class by applying a body of substantive law
that would not apply to an individual claim. These States
became 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, e.g., Martin v. Heinold Commodities, Inc., 510 N.E.2d
840, 846-47 (Ill. 1987). Indeed, in a number of instances,
the Illinois courts have affirmed precisely what the Oklahoma
Court allowed plaintiffs to accomplish in this case:
application of a 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 upheld 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
headquartered in Illinois. “‘Illinois has a legitimate interest
in applying its law ... to insure that its residents
[i.e., corporations headquartered there] comply with its
consumer-protection laws while serving Illinois and
out-of-state consumers.” Id. at 129-30 (quoting Avery, 746
N.E.2d at 1255) (emphasis added). The Illinois courts have
consistently refused to concede the extraterritorial impact of
the imposition of Illinois’ substantive law in class actions
involving non-Illinois residents.
The effect of these choice-of-law rules has been dramatic.
Illinois state courts became a preferred venue for plaintiffs
: 16
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.” PJ. ’s Concrete Pumping Serv. V.
Nextel W. Corp., 803 N.E.2d 1020, 1030 (Ill. App. Ct. 2004).
The Illinois experience demonstrates the effect of a
constitutionally erroneous choice-of-law rule like the one
applied in this case: litigants dissatisfied with the rules that
would govern them under ordinary choice-of-law principles
sought jurisdictions with which they had no constitutionally
significant contact but which would adjudicate their claims
under a more favorable body of substantive law.
The courts of California have taken an intermediate
approach to the choice-of-law problem in putative nationwide
classes. The California Supreme Court has recognized,
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
contacts” 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[t] the scales in favor of applying its
own law.” Id.
It is clear that some state appellate courts cannot or will
not intervene to correct constitutional error in nationwide
class actions; both they and the trial courts they supervise
17
require further guidance from this Court on the constitutional
principles elucidated in Shutts and implicated in every
multistate class action applying state law.
Il. The Oklahoma Court’s Nationwide Certification
Conflicts With Decisions Interpreting the Commerce
and Due Process Clauses’ Restrictions on
Extraterritorial 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 vehicles
were advertised, purchased, driven, and owned to this day
without incident — have already definitively rejected one or
mere of the constructions of warranty law on which the
plaintiffs’ claims rest. Those States are entirely within their
rights to provide that GM has breached no duty to their
citizens. Yet the Oklahoma court’s application of one state’s
substantive law to those transactions has the effect of
displacing those States’ own regulatory regimes and replacing
them with one in which the Oklahoma courts may find 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
conflicts with this Court’s decisions interpreting the
constitutional constraints on extraterritorial regulation.
The Commerce Clause prohibits States from engaging
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
18
controlling commercial activity occurring wholly outside the
boundary of the State.” Jd.
The certification of a single body of law to govern the
entire class in this case threatens to extinguish the contrary
regulatory regimes of Oklahoma’s sister States — regimes
under which many class members’ claims against GM 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 asserted here, a claim
premised on an alleged, but unmanifested product defect that
has caused no harm. See, e.g., Briehl v. General Motors
Corp., 172 F.3d 623, 627 (8th Cir. 1999) (listing numerous
courts that have rejected claims based on alleged product
defects that have not caused injury); Jn re Air Bag Prods.
Liab. Litig., 7 F. Supp. 2d 792, 803-04 (E.D. La. 1998).
Indeed, the other State where P-90 vehicles were assembled,
Delaware, has specifically rejected the viability of the claims
certified by the Oklahoma Court. See Dalton v. Ford Motor
Co., 2002 WL 338081 (Del. Super. Ct. 2002). Other class
members could not recover because they purchased their
vehicles from retailers, rather than from GM, and their home
States require plaintiffs suing for breach of express warranty,
implied warranty, 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 GM, the original
manufacturer, for breach of implied warranty. See, e.g., CAL.
Civ. Cope § 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 recovery. For example, to permit a
Texas purchaser of a used P-90 vehicle to recover under some
other State’s law when the law of her own State precludes
recovery against the manufacturer plainly amounts to
19
regulation of the market for used vehicles in Texas, 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 transactions
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)).
This Court has consistently applied due process
principles as well as the Commerce Clause to strike down
such extraterritorial regulatory efforts. As Justice Stevens
explained in A//state, 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
enlargement.” 449 U.S. at 327 n. 16 (Stevens, J., concurring
in the judgment). Here, although Texas law limits a
manufacturer’s implied warranty to the initial purchaser, the
Oklahoma court’s class certification decision effectively
rewrites that contractual obligation and, if the substantive
law ultimately applied contradicts Texas’ rule, allows every
Texas purchaser the additional opportunity to pass on the
manufacturer’s implied warranty through resale. The
Oklahoma courts’ nationwide certification thus rewrites
GM’s warranty obligations across the country.
Likewise, this Court’s recent punitive damages cases
expressly 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
20
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 “[a]ny 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 1522.4
The Oklahoma court’s decision effectively makes an end
run around State Farm and BMW. By certifying a nationwide
class according to a single State’s law 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 GM is
unquestionably free of liability to pursue damages under
another state’s law. 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.
Hil. The Oklahoma Courts Deferral Of Determining What
- §tate’s Law Will Be Applicable To Class Members’
Claims Also Violates The Due Process Clause
This Court has recognized that “the class-action
defendant has a great interest in insuring that the absent
plaintiffs’ claims are properly before the forum.” Shutts, 472
U.S. at 809. Here, the process sanctioned by the Oklahoma
court violates due process. As this Court has made abundantly
clear, proper notice of a class action is a matter of due process
4. For this reason, this litigation may put GM in a no-win situation:
even if GM prevails in the Oklahoma action, 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 another state’s
law to resolve their claims in GM’s favor.
21
since class members will be bound by any final judgment.
Shutts, 472 U.S. at 812; Eisen v. Carlisle and Jacquelin, 417
U.S. 156 (1974). The necessity for proper notice is critical
when, as here, the class includes persons who would not
otherwise be subject to the jurisdiction of the courts in the
State of Oklahoma. In Shutts, this court held that
If a forum state wishes to bind an absent plaintiff
concerning a claim for money damages or a
similar relief at law, it must provide minimal
procedural due process protection. The plaintiff
must receive notice plus an opportunity to be
heard and participate in the litigation, whether in
person or through counsel. . . . The notice shouid
describe the action and the plaintiffs’ rights in it.
Additionally we hold that due process requires at
a minimum that an absent plaintiff be provided
with an opportunity to remove himself from the
class by executing and returning an “opt out” or
“request for exclusion” form to the court.
Shutts, 472 U.S. at 812.
In order for a description of “the action” in a class notice
to be of any use, it must set forth the claims and the law
which will govern the claims. For example, the Fifth Circuit
held that due process requires not only that notice reach the
parties affected but that it convey “information reasonably
necessary to make a decision to remain a class member and
be bound by the final judgment or opt out of the action.” See
Nissan Motor Corp. AntiTrust Litigation, 552 F.2d 1088,
1103-05 (Sth Cir. 1977). In other words, due process requires
that the notice “contain information that a reasonable person
would consider to be material in making an informed,
intelligent decision of whether to opt out or remain a member
of the class and be bound by the final judgment.” Jd.
In the present case, the Oklahoma court held that a choice
of law determination could await trial on the merits.
22
Accordingly, class notice will necessarily violate class
members’ due process rights since such notice will not set
out the law which would govern the substantive rights of the
class members. As discussed above, the determination of
applicable law will impact the substantive rights of class
members. Many states do not recognize the validity of any
of the claims, others would not allow used car purchasers to
assert implied warranty claims, and others, including
Oklahoma, do not recognize a claim for breach of the
warranty of fitness for a particular purpose when the good is
simply used in the ordinary manner for which the good was
manufactured. See Crysco Oil Field Service v. Hutchison-
Hayes International, 913 F.2d 850, 852 (10th Cir. 1990)
(applying Oklahoma law). A reasonable class member must
know what law will be applied in order to make an informed
decision about whether to opt out or remain in the class, and
the procedure adopted by the Oklahoma court, which would
deny them necessary information, therefore violates the
due process rights of class members. GM is correspondingly
exposed to significant risk since even if it prevails, class
members could argue they are not bound by any judgment
because they were not afforded due process in determining
whether to opt out.
IV. 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 frequently requested to certify nationwide
classes. Indeed, in certain state courts, requests for nationwide
class certification are the norm rather than the exception.
E.g., DEBORAH R. HENSLER Et At., RAND Inst. For Crvit
Justice, CLass Action DiLemmas 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, They're Making a Federal Case Out of If. . . In State
23
Court, 25 Harv. J.L. & Pub. Pol’y 143, 156-57, 160-61, 169
(noting the growth of nationwide class actions filed in state
courts).
These cases create an acute need for guidance on
the correct constitutional standard for choice-of-law
determinations in nationwide class actions. Demands to apply
the law of a single State in such actions are also common.
Choice-of-law questions are presented in virtually every
nationwide class action applying state law, and in many cases
the resolution of those questions will be a dispositive factor
in the decision whether or not to certify. Most States that
allow class actions apply some version of the federal Rule
23 requirements of commonality, typicality, predominance,
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 many 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, or
even one State, misapply this Court’s Due Process and
Commerce Clause precedents to create choice-of-law rules
that permit the nationwide application of one state’s law, the
public policies of all other 49 states are overridden. For this
reason, the interstate conflict created by the decision of the
Oklahoma Court and a few other state courts is of
considerable significance to the federal system, and this
Court’s review is warranted to correct it.
24
V. 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
questions of federal constitutional law presented in this
petition. The Oklahoma Court squarely rejected GM’s
arguments 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
constitutional 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
determining whether a state court decision is “final” under
§ 1257(a). Cox Broadcasting Corp. v. Cohn, 420 U.S. 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
decided in the state courts with further proceedings pending
in which the party seeking review here might prevail on the
merits of nonfederal grounds, thus rendering unnecessary
review of the federal issue by this Court,” and where “reversal
of the state court on the federal issue would be preclusive of
any further litigation.” Jd. at 482-83. In these circumstances,
“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 certiorari
where the decision below “might seriously erode federal
policy in the area of nuclear production”); Southland Corp.
25
v. Keating, 465 U.S. 1, 6-8 (1984) (granting certiorari 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 GM’s
contention that certification of a nationwide class action,
without conducting a choice-of-law analysis specific to the
individual class members’ claims, violates several provisions
of the federal Constitution. 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 issues, thereby depriving this Court of the
opportunity to decide the important constitutional issues at
stake. Cox Broadcasting, 420 U.S. 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
determination 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. The Oklahoma
Supreme Court has acknowledged that “[a]pplying the law
of 51 jurisdictions ... presents an overwhelming burden
which would make the class unmanageable and a class action
determination .. . inappropriate.” Ysbrand, 81 P.3d at 627.
Accordingly, reversal of the decision below would, for all
practical purposes, terminate the lawsuit.
Finally, it is readily apparent that “a refusal immediately
to review the state-court decision might seriously erode
federal policy.” Cox Broadcasting, 420 U.S. at 483. The
Oklahoma courts’ certification of a nationwide class, without
conducting a choice-of-law analysis specific to individual
class members’ claims, heavily undermines constitutional
26
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
authority of the state court to adjudicate specific claims
between specific litigants, this Court consistently has
exercised jurisdiction despite the availability of further state
court proceedings that might lead to the termination of the
dispute on non-federal grounds. For example, this Court has
taken jurisdiction 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. Heitner, 433 U.S. 186, 195-96 n.12 (1977). And this Court
similarly 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, 649-52 (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 ruling
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) (reviewing an
interlocutory sovereign immunity claim owing to the
“importance of ensuring that the States’ dignitary interests
can be fully vindicated”). The federal question is the
constitutionality of the state court’s proposed adjudication:
not only does further delay entail exponentially greater cost,
it imposes on GM precisely the burden against which it is
invoking the protections of the Due Process and Commerce
27
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 complex litigation which
may all be for naught if consideration of the preliminary question
. is postponed until the conclusion of the proceedings.”
Mercantile Nat’] Bank, 371 U.S. at 558; see also Southland
Corp., 465 U.S. at 7-8 (noting that delayed review of a state
decision denying enforcement of an arbitration contract would
defeat the core purpose of a contract to arbitrate).°
Moreover, a grant of class status “can propel the stakes ofa
case into the stratosphere,” thereby pressuring a defendant to
settle and precluding future review of federal issues, “even when
the plaintiff's probability of success on the merits is slight.”
Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834 (7th Cir.
1999) (noting that “some plaintiffs or even some .. . judges
may be tempied to use the class device to wring settlements
from defendants”). Indeed, such settlement pressures were a
motivating factor behind this Court’s adoption of Rule 23(f) of
the Federal Rules of Civil Procedure in 1998. Fep. R. Civ. P.
23(f) advisory committee’s notes (“An order granting
certification . . . may force a defendant to settle rather than incur
the costs of defending a class action and run the risk of potentially
5. This Court has not previously considered whether a grant of
class certification is reviewable under Cox Broadcasting. In Coopers
& Lybrand v. Liveway, 437 U.S. 463 (1978), the Court considered
whether a denial (rather than a grant) of class certification 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 constitutional limitations on choice of law.”).
28
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 acting on a petition for certiorari.” Jd.° The
possibility of certiorari review reduces the danger that a
constitutionally erroneous class certification (and the resulting
impact on interstate federalism) will never be reviewed precisely
because a nationwide class even 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 Republic
Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68 (1948).
CONCLUSION
The petition for a writ of certiorari should be granted.
\
Respectfully submitted,
Timotuy A. DANIELS
Counsel of Record
' A. Erin Dwyer
FiGARI & Davenport, LLP
901 Main Street
Suite 3400
Dallas, Texas 75202
(214) 939-2000
Counsel for Petitioner
6. 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. TJX Cos., 345 F.3d 34, 37 (ist 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).
APPENDIX
la
~~
APPENDIX A — OPINION OF THE COURT OF
CIVIL APPEALS OF THE STATE OF OKLAHOMA,
DIVISION III FILED DECEMBER 3, 2004
IN THE COURT OF CIVIL APPEALS OF THE
STATE OF OKLAHOMA, DIVISION III
Case No. 100,474
DELMAS FORD, former Secretary of the Oklahoma
Department of Transportation; JANE DOE; SHIRLEY
CARTWRIGHT; BERT CROSSLAND; MARGARET
CROSSLAND; and JOHN DOE,
Plaintiffs/Appellees,
VS.
THE GENERAL MOTORS CORPORATION,
a Delaware Corporation,
Defendant/Appellant.
APPEAL FROM THE DISTRICT COURT OF BYRON
COUNTY, OKLAHOMA
HONORABLE FARRELL M. HATCH, TRIAL JUDGE
AFFIRMED
OPINION BY CAROL M. HANSEN, Judge:
Defendant/Appellant, The General Motors Corporation
(GM), seeks review of the trial court's order certifying this
2a
Appendix A
case as a class action. We follow Ysbrand v. DaimlerChrysler
_ Corp. (Ysbrand), 2003 OK 17, 81 P.3d 618, cert. denied,
1248. Ct. 2907, 72 USLW 3633, 72 USLW 3766, 72 USLW
3768 (2004), and affirm.
Plaintiff/Appellees, Delmas Ford and others (collectively
Owners), sued GM, alleging the air bag system in the 1997,
1998, and 1999 GM-—P-90 platform automobiles,
manufactured in Oklahoma, was defective, resulting in
inadvertent air bag deployment. Owners asserted claims for
(1) breach of express warranty, (2) breach of implied warranty
of merchantability, (3) breach of implied warranty of fitness
for a particular purpose, (4) violation of the Magnuson-Moss
Warranty Act, 15 U.S.C. § 2310, and (5) "unjust enrichment/
restitution/deceit." After an unsuccessful attempt to remove
the case to federal court, GM answered and denied liability.
Owners moved to certify the case as a class action. After
a hearing and over GM's objection, the trial court found the
requirements of 12 O.S. 2001 § 2023 were met. It certified
the following class:
- All current owners and lessees of 1997-1999
General Motors P-90 platform automobiles
manufactured in Oklahoma, encompassing all
persons or entities resident in the United States
who own or lease Chevrolet Malibu and
Oldsmobile Cutlass models manufactured before
April 24, 1999. Excluded from this class is any
person, firm, corporation, trust or other entity
related to or affiliated with defendant General
Motors or any person who has or had an action
3a
Appendix A
for personal injury or death against General
Motorsas a result of an inadvertent airbag
deployment in such vehicle.
GM appeals pursuant to 12 O.S. Supp. 2001 § 993(A)(6).
In order to certify a class, the trial court must find (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 those of the class, and (4) the
representative parties will fairly and adequately protect the
interests of the class. 12 O.S. 2001 § 2023(A). In addition, it
must find one of the alternative conditions of Subsection B
of § 2023, relating to the practical utility of a class action for
deciding the group's claims. "Class determination... should
be made by the court in a practical and realistic manner, based
on what is actually involved in the litigation. No mechanical
formula exists which can be applied to all cases." Mattoon v.
City of Norman, 1981 OK 92, 633 P.2d 735, 740-741. We
will not disturb an order certifying a class unless abuse of
discretion 1s shown. Black Hawk v. Exxon, 1998 OK 70 ¥ 10,
969 P.2d 337, 342. A close question should be resolved in
favor of sustaining certification because the order is always
subject to modification prior to judgment on the merits. Perry
v. Meek, 1980 OK 151 9 19, 618 P.2d 934, 940.
I
GM first contends the trial court abused its discretion in
certifying a class because common issues do not predominate.
It argues the trial court should have identified what claims
4a
Appendix A
were being certified and what law would be applied to
classmembers' claims. GM argues the class certified would
require the application of the law of all fifty states, and the
variation in state laws would overwhelm the proceedings,
defeating the commonality, predominance, and manageability
requirements for class certification. GM contends the
application of Oklahoma law to all class members is
inconsistent with Oklahoma choice of law rules and would
violate the United States Constitution.
The Oklahoma Supreme Court considered these issues
in Ysbrand v. DaimlerChrysler Corp. (Ysbrand), 2003 OK
17, 81 P.3d 618. In that case, the plaintiffs were owners of
1996 or 1997 model minivans manufactured by
DaimlerChrysler in Michigan. They alleged the minivans' air
bags were defective due to their propensity to deploy with
overly aggressive force and during low speed collisions. The
owners asserted Uniform Commercial Code (UCC) claims
_ for breach of express warranty, implied warranty of
merchantability, and implied warranty of fitness. They also
asserted a claim for fraud and deceit. /d., 81 P.3d at 621. The
trial court certified a nation-wide class of owners of the
subject minivans.
DaimlerChrysler appealed the class certification order,
contending common issues of law or fact did not predominate
because varying state laws would apply to the asserted claims
and defenses. In affirming class certification as to the UCC
breach of warranty claims, the Court analyzed Oklahoma
choice of law rules:
Sa
Appendix A
The "most significant relationship" test
applies to an action for breach of warranty in a
sale of goods under Article 2 of the UCC.... This
test is guided by principles and contacts from the
Restatement (Second) of Conflicts (1971). It
determines which state's law is most directly
connected to the parties and the transaction.
...All 50 states and the District of Columbia
bear some relationship to the parties and
transactions in this dispute 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.
...fThe UCC warranties 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 version of the UCC is more
or less equal. By contrast, Michigan's interest in
having its regulatory scheme applied to the
conduct of a Michigan manufacturer is most
significant. Michigan is where the decisions
concerning the design, manufacture, and
distribution of the minivans were made. Michigan
is the only state where conduct relevant to all class
members occurred. The principal place of
DaimlerChrysler's business is the most important
contact with respect to the UCC warranty claims.
6a
Appendix A
...Michigan's interest in the conduct of its
manufacturer, and thus its connection to the
watranty issues, is greater. Michigan law applies.
It should be noted that this conclusion is consistent
with the constitutional imperative 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 fundamentally unfair."
Id., 81 P.3d at 625-626 (quoting Phillips Petroleum Co. v.
Shutts, 472 U.S. 797, 818, 105 S. Ct. 2965, 86 L. Ed. 2d 628
(1985)).
The Ysbrand Court reversed class certification only as
to the fraud and misrepresentation claims because class
members would have received the representation in their
home states, making each member's home state the most
significant contact. Applying the law of 51 jurisdictions
would render the class action unmanageable. Jd., 81 P.3d at
627.
In the instant case, the trial court considered the choice
of law analyses presented by both parties and concluded GM
overstated the choice of law issue. Relying on Ysbrand, it
rejected GM's argument the need to apply different states’
laws destroyed its predominance finding. We agree. Under
Ysbrand, Oklahoma's choice of law rules point to the
application of only one state's law to the class's UCC warranty
claims, namely, the state where GM's principal place of
business is located and where decisions concerning the
7a
Appendix A
design, manufacture, and distribution of the P-90 air bag
systems were made. The trial court did not abuse its discretion
in determining common issues predominate.
The trial court has not yet determined in which state this
conduct occurred. It need not do so until it reaches the merits
of this action. In Lobo Exploration Co. v. Amoco Production
Co., 1999 OK CIV APP 112, 991 P.2d 1048, 1051, cert.
denied, 529 U.S. 1124, 120 S.Ct. 1996, 146 L. Ed. 2d 821
(2000), the Court concluded Shutts did not require resolution
of conflict of laws questions prior to certifying a class. While
the existence of a conflict of laws issue is an appropriate
consideration in determining whether common issues of law
predominate, reservation of the issue is not.an abuse of
discretion.
GM argues Owners asserted a fraud claim but admits
Owners announced to the trial court they were withdrawing
the fraud claim from class consideration. Owners confirm in
their answer brief they no longer posit a fraud claim.
Therefore, we need not consider the impact of a fraud claim
on class certification.
I
GM next contends a class action is not a superior method
of handling the controversy. It argues the National Highway
and Transportation Safety Administration (NHTSA) is a more
appropriate forum for automobile defect claims because
NHTSA may order a recall and require the manufacturer to
remedy the defect. In Ysbrand, the Oklahoma Supreme Court
ruled a NHTSA administrative proceeding could not be
8a
Appendix A
considered a superior method for adjudication after NHTSA
had closed its investigation because that method was no
longer available. Ysbrand, 81 P.2d at 627-628.
The trial court in the instant case found NHTSA had
already closed its inquiry into GM's P-90 air bags. GM argues
in its brief-in-chief, filed on June 30, 2004, that the trial
court's finding is unsupported by evidence in the record.
However, on October 8, 2004, GM and Owners filed a joint
stipulation agreeing a copy of the NHTSA closing letter was
properly part of the record.' The Oklahoma Supreme Court
issued an order accepting the stipulation. This record
establishes the trial court's finding is supported by the
evidence. We find no abuse of discretion.
lil
GM's next contention is the class is defined in such a
way that (1) the class members lack standing to sue because
the alleged defect has not manifested itself in their cars, and
(2) the membership of the class is constantly changing and
not ascertainable. GM raised the issue of standing in its
motion to dismiss, which the trial court denied. That order is
not before us. "[T]he merits of an action are not judged in
1. The stipulation stated that at the February 4, 2004 hearing
on class certification, Owners' counsel informed the trial court
NHTSA had closed its investigation. GM's counsel stated he would
take it as true that the investigation had been closed and that Owners’
counsel would supply a copy of the closing letter to the court. The
NHTSA closing letter had been produced to Owners by GM prior to
the hearing. Owners' counsel delivered the closing letter to the trial
court on February 12, 2004, and it is Exhibit H in the record on
appeal.
9a
Appendix A
ruling on a motion for class certification." KMC Leasing,
Inc. v. Rockwell-Standard Corp., 2000 OK 51, 9 P.3d 683,
687. Motor vehicles are titled personal property. 47 O.S. 2001
§ 1103. Therefore, the identity of the owners of motor
vehicles is readily ascertainable. The trial court may exercise
its discretion in managing the procedural issues in the case,
including the manner and time of giving notice to class
members. 12 O.S. 2001 § 2023(C)(2) and (D)(2). The trial
court's judgment will "describe those whom the court finds
to be members of the class." 12 O.S. 2001 § 2023(C)(3). We
find no abuse of discretion in the definition of the class.
For the foregoing reasons, the trial court's order certifying
a class action is AFFIRMED. Owners' motion to file a
surreply brief to call the Court's attention to the joint
stipulation filed after the close of briefing is granted. GM's
motion for oral argument is denied.
JOPLIN, J., and MITCHELL, P.J., concur.
10a
APPENDIX B — MEMORANDUM OPINION AND
ORDER GRANTING PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION IN THE DISTRICT
COURT OF BYRAN COUNTY, STATE OF
OKLAHOMA ENTERED FEBRUARY 18, 2004
FILED FEBRUARY 19, 2004
IN THE THE DISTRICT COURT OF BYRAN
COUNTY STATE OF OKLAHOMA
Case No. CJ-2002-424
DELMAS FORD, former Secretary of the Oklahoma
Department of Transportation, JANE DOE, SHIRLEY
CARTWRIGHT, BERT CROSSLAND, MARGARET
CROSSLAND, and JOHN DOE,
Plaintiffs,
Vv.
THE GENERAL MOTORS CORPORATION,
a Delaware corporation,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
This Cause is before the Court on Plaintiffs’ Motion for
Class Certification. This Court has reviewed and considered
all of the pleadings in this matter, the parties’ respective
briefs, and the documents, exhibits, presentations, admissions
and arguments received in evidence during the class
lla
Appendix B
certification hearing commenced on February 4, 2004. Both
counsel for Plaintiffs and counsel for Defendants provided
to this Court proposed Orders, as agreed at the hearing on
February 4, 2004. Based on the foregoing, the Court
GRANTS Plaintiffs’ motion based upon the following
Findings of Fact and Conclusions of Law:
FACTUAL BACKGROUND
A. Plaintiffs’ Claims
Class certifications in Oklahoma are governed by 12 O.S.
§ 2023. Before proceeding to analyze the requirements of
section 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 proceedings. As the United States Supreme Court has
stated:
[N]ething in either the language or history of Rule
23... gives a court any authority to conduct a
preliminary inquiry into the merits of a suit in
order to determine whether it may be maintained
as a class action. Indeed, such a procedure
contravenes the Rule. . .
Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974)
(emphasis added). The only question before the Court is
whether § 2023's requirements for class certification are met.
Black Hawk Oil Co. v. Exxon Corp., 969 P.2d 337, 343 (Okla.
1998), citing Eisen as authority. Because this Court is heeding
Section 2023's requirement that the class certification issue
- 12a
Appendix B
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 Eisen's
admonitions 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, 417 U.S.
at 177. Consequently, like the numerous Courts that have
followed Eisen's holding’, this Court, while conducting 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 the class
determination. What follows is a description of plaintiffs’
claim, as pleaded in this litigation.’
1. 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 . . . plaintiff's claim and then.
to determine whether there was a class . . . The Court will not engage in
a discussion of the merits of the plaintiff's case in relation to this standard.
[Eisen, supra]").
2. 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
evidence and claims against the defendant. The Court assumes that
GM disputes this evidence. What follows is a review of the claims
proffered by the plaintiffs. The Court is providing this review to
(Cont’d)
l3a
Appendix B
Plaintiffs seek to represent a class composed of
the following persons:
All current owners and lessees of 1997-1999
~ General Motors P-90 platform automobiles
manufactured in Oklahoma, encompassing all
persons or entities resident in the United States
who own or lease Chevrolet Malibu and
Oldsmobile Cutlass models manufactured before
April 24, 1999. Excluded from this class is any
person, firm, corporation, trust or other entity
related to or affiliated with defendant General
Motors or any person who has or had an action
for personal injury or death against General
Motors as a result of an inadvertent airbag
deployment in such vehicle.
Plaintiffs seek to certify a national class action against
General Motors for the purpose of litigating all claims extant
for the subject air bag systems in one forum and proceeding.
Defendant General Motors is the manufacturer of Oldsmobile
Cutlass and Chevrolet Malibu. These vehicles are known as
"GM P-90" platform automobiles. All of the automobiles that
are the subject of this litigation are GM P-90 platform
automobiles manufactured by General Motors in Oklahoma
City, Oklahoma from model year 1997 through April 24,
1999. Plaintiffs, Shirley Cartwright and Delmas Ford, are
(Cont’d)
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.
l4a
Appendix B
owners of a GM P-90 Oldsmobile Cutlass and a GM P-90
Chevrolet Malibu, respectively. Shirley Cartwright and
Delmas Ford have asserted claims for breach of express
warranty, breach of implied warranty of merchantability and
breach of implied warranty of fitness, all as provided by the
Uniform Commercial Code, claims under Magnuson-Moss
as well as unjust enrichment against General Motors in the
form of a class action suit.
Plaintiffs have based their claims on the grounds that
the air bag systems in these automobiles are defective in
nature and/or design based on their propensity to deploy when
they should not, such as during a low speed collision, when
hitting a pothole, driving over a railroad track or gravel road,
or in a side impact collision. Plaintiffs assert that the air bag
systems installed in their automobiles are unreasonably
dangerous in that they have the potential to kill or seriously
injure any person seated in the driver or front passenger seat
of their automobiles, the potential to cause accidents by
rendering the driver unable to properly maneuver his or her
automobile in situations that would otherwise constitute
normal driving conditions. Plaintiffs further assert that they
have an additional recognizable injury in that the value of
the unsafe vehicles that Plaintiffs actually received is
substantially less than the value of the safer vehicles that
Plaintiffs were lead to believe they were purchasing or
leasing.
In GM P-90 platform automobiles manufactured in
Oklahoma in 1997-1999, the decision to deploy an air bag is
made by a computer called a Sensing Diagnostic Module
(SDM-R), using a computer program known as an algorithm.
15a
Appendix B
In many automobiles, including many other GM automobiles,
the Sensing Diagnostic Module's decision-making process
for the deploy/not-deploy decision is assisted by an Auxiliary
Discriminating Sensor (ADS), the purpose of which is to
discriminate between those accidents in which the air bag
should deploy and those events in which the air bag should
not deploy. The "R" in SDM-R stands for "reduced cost."
The SDM-R air bag system installed in GM P-90
platform automobiles in 1997-1999 was placed on the floor
pan and programmed with an algorithm that causes the SDM-
R to be overly sensitive to sensor data. In these automobiles
there is no ADS to neutralize the impact of this data from
the single source. As a result of the placement of the SDM-R
and the software programming defect, the GM P-90
automobiles manufactured in 1997-1999 are subject to
inadvertent air bag deployments in non-serious injury
accidents and in non-accident situations where the SDM-R
misreads the data it receives. In these non-accident
circumstances, the deployment of the airbag may cause
serious injury or death. The estimated cost of retrofitting an
automobile with the new algorithm is approximately $500
per vehicle.’
All of the vehicles in the class contained the same airbag
restraint system with the same sensing system, algorithm,
and SDM-R. None of the vehicles in the class contain an
ADS. At the time of manufacture, this alleged defect existed
in each of these vehicles. In addition, with respect to the
airbag restraint systems, the owners' manuals for all vehicles
3. The cost to replace an air bag system that has deployed is
between $800-$1500 per automobile.
l6a
Appendix B
in the class were substantially similar and the advertising
employed by GM to induce persons to purchase the
automobiles similarly stressed the safety aspects of the
automobiles.
GM utilized a similar air bag system in its 1997 GM-J
platform automobiles. In 1998, GM recalled the 1996-1997
Chevrolet Cavalier and 1996-1997 Pontiac Sunfre (GM-J
platform cars) to correct the problem of inadvertent
deployment of its air bag system. The recall was based on
GM's determination that the increased risk of inadvertent
deployment of the air bag system was a safety defect and
that it affected the customer's satisfaction with the vehicle.
To correct the inadvertent deployment problem in the
air bag system, Defendant GM altered the algorithm in the
SDM-R in GM P-90 platform automobiles beginning with
production on April 24, 1999. GM has never recalled the
1997-1999 GM P-90 platform automobiles, nor informed the
owners or lessors of the defective airbag system.
In response to inquiries from the National Highway and
Transportation Safety Administration (NHTSA) concerning
inadvertent deployments in GM P-90 automobiles, GM
reported statistics that included GM P-90 automobiles that
were manufactured after GM began installing SDM-R's with
the corrected algorithm software, that is, manufactured after
April 24, 1999. This resulted in the report to NHTSA of
statistics of inadvertent deployments per ten thousand
vehicles that were artificially low because the statistics
included both defectively manufactured cars and cars
manufactured with corrected air bag systems. NHTSA
17a
Appendix B
subsequently closed its inquiry without further action on this
matter based on GM's self-report.
Plaintiffs have requested that they and the members of
the class be compensated in an amount sufficient to ailow
them to have these safer air bag systems installed in their
automobiles or, in the alternative, for the difference in value
between the vehicles they purchased and the vehicles they
actually received.
CONCLUSIONS OF LAW
A. General Legal Standards Governing Class
Certification
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 (2nd Ed. 1986).
Because Oklahoma's class action procedure closely mirrors
Federal Rule 23, Oklahoma courts may look to federal law
for guidance ard 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 because class actions pennit 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'l Bank v. Roper, 445 U.S. 326, 338,
reh'g denied, 445 U.S. 947 (1980).
18a
Appendix B
Class certification is a procedural issue that should be
resolved expeditiously. The Okla. Stat. Ann. Title 12
§ 2023(c)(1) mandates that the determination of class
certification shall be determined "as soon as practicable after
the commencement" of the action. A close question regarding
class certification should be resolved in favor of class
certification. Lobo Exploration Co. v. Amoco Production Co.,
991 P.2d 1048, 1050 (Okla. 1999). "Class certification is a
matter committed to the discretion of the trial court." Ysbrand
v. Daimler Chrysler Corp., 81 P.3d 618 (Okla. 2003).
B. Legal Standard Governing Class Certification
The statutory requirements for maintaining a class action
are listed in 2023(A): a class is properly certified if
numerosity, commonality, typicality and adequacy of
representation are present. Each of these requirements will
be considered below. It is noted that GM did not dispute
numerosity or the adequacy of representation at the hearing.
1. Numerosty.
Section 2023(A)(1) requires that the proponent of a class
action demonstrate that "the class is so numerous that joinder
of all member, is impracticable." 12 Okl.Stat.Ann. § 2023(A).
GM does not dispute numerosity, and could not. The record
in this case indicates that there were at least 400,000
automobiles produced in the 1997 to 1999 model years that
fit the class definition. The numerosity test is satisfied by
numbers alone when the size of the class is in the hundreds.
Black Hawk Oil Co. v. Exxon Corp., 969 P.2d 337 (Okla.
1998). This Court finds that joinder is impracticable due to
the sheer volume of automobile owners involved.
19a
Appendix B
2. Common Questions of Law or Fact.
Section 2023(A)(2) requires that the proponent of the
class action demonstrate that "there are questions of law or
fact common to the class." 12 Okl.Stat.Ann. § 2023(A)
(emphasis added). Section 2023(A)(2) does not require that
all questions be common or that common questions
predominate. Indeed, in the court's Rule 23({A) inquiry, a
single common question is sufficient to satisfy this
requirement. See Perry v. Meek, 618 P.2d 934 (Okla. 1980).
A common question is one that "arises from a common
nucleus of operative facts regardless of whether the
underlying facts fluctuate over the class period and vary as
to individual claimants." Cohen v. Uniroyal, Inc., 77 F.R.D.
685, 690-91 (E.D. Pa. 1977). Indeed, the presence of one
common question of law or fact is sufficient to certify a
class. Perry v. Meek, 618 P.2d 934 (Okla. 1998); Jn re:
Prudential Ins. Co. of America Sales Practice Litigation
Agent Action, 148 F.3d 283, 310 (3rd Cir. 1998); Stewart v.
Winter, 669 F. 2d 328 (Sth Cir. 1982); Johnson v. American
Credit Co. of Georgia, 581 F.2d 526 (Sth Cir. 1978).
Plaintiffs have argued that commonality exists among
the class members because the claims of each potential class
member relate to the installation of identical allegedly
dangerous air bag systems in their automobile, and the act of
withholding information concerning this defect from the
vehicle @wners and NHTSA by General Motors. Plaintiffs
argue that the questions of law and fact common to the class
include:
20a
Appendix B
Whether the air bag systems installed in the
automobiles sold to the named plaintiffs and
members of the class are defective and unreasonably
dangerous for their intended use because of the
likelihood of inadvertent deployment;
Whether defendants deliberately withheld
from named plaintiffs and the members of the class
and NHTSA vital information regarding the
dangerous characteristics of the airbag systems
installed in their automobiles;
-Whether plaintiffs have been harmed
economically by: being forced to bear the cost of
retrofitting their automobiles with air bags, related
sensors and electronic components, and by being
required to absorb the diminution of value in resale
of their vehicle, as well as its diminished utility;
Whether GM has ween unjustly enriched by
its sale of vehicles for which it received full price
but in which it placed components that decreased
the value of the automobile;
Whether GM breached its warranties, implied
and express, by selling automobiles containing
defective air bag systems subject to inadvertent
deployment.
Plaintiffs argue that their claims against General Motors
arise from the same set of alleged operative facts, i.e., the
installation of identical air bag systems in each of their
“2Qla
Appendix B
vehicles and the act of withholding safety related information
from them. Plaintiffs contend that none of the class members
were ever informed about the true nature of their defective
airbag systems. Thus, the operative facts present give rise to
claims against General Motors that are common to the entire
class. A determination regarding whether the subject air bags
installed in the Plaintiffs and other members of the class
vehicles are unreasonably dangerous, and whether General
Motors withheld that information from the Plaintiffs,
members of the class and NHTSA are the issues to be
determined. The resolution of these issues will be applicable
to each and every class member and will be dispositive of
every class member's claims. However, it is the opinion of
this Court that forcing thousands of individuals to file
identical individual actions would burden the courts of this
state (and every other state) unnecessarily if, and it is unlikely,
those individuals discovered their legal rights and retained
counsel. This Court finds that, given the presence of questions
of law or fact common to the plaintiffs and members-of the
class, the requirement for the existence of common questions
of fact or law is satisfied.
3. Typicality.
Section 2023(A)(3) requires that the proponent of the
class action demonstrate that the claims or defenses of the
representative parties are typical of the claims or defenses
of the class. 12 Okla.Stat.Ann. § 2023(A). The measure of
whether a plaintiff's claims are typical is whether the nature
of plaintiff's claims, judged from both a factual and legal
perspective, are such that in litigating his personal ciaims,
he can reasonably be expected to advance the interest of
22a
Appendix B
absent class members. See Lobo Explorations Co. v. Amoco
Productions, 991 P.2d 1048, 1055 (Okla. 1999). "Factual
variations in the individual claims will not normally preclude
class certification if the claim arises from the same event or
course of conduct as the class claims, and gives rise to the
same legal or remedial theory." /d. (quoting Alpern v.
UtiliCorp United Inc., 84 F.3d 1525, 1540 (8th Cir. 1996)).
The plaintiffs have argued that their claims against
General Motors arise out of the same course of conduct (i.e.,
installation of unreasonably dangerous air bag sensing and
algorithm systems and withholding of information regarding
the safety of these air bag systems), and are based on the
same legal theories as those of the class (breach of UCC
warranties, implied and express, and unjust enrichment). Both
Cartwright and Ford own GM P-90 platform automobiles
manufactured in Oklahoma City between 1997 and April 24,
1999, equipped with the allegedly defective air bag systems,
as do all prospective members of the class. The central issues
in this case are whether the subject air bags are unreasonably
dangerous due to either their nature or an inherent design
defect so as to be unfit for their intended use or are in breach
of GM's written and implied warranties, and whether General
Motors withheld knowledge of the dangerous nature of the
air bag systems from consumers and NHTSA. The question
of whether the subject air bag systems are dangerous due
either to their nature or an inherent design defect is one
common to all class members, as these identical air bag
systems were installed in all automobiles covered by the class
definition. Additionally, the question of whether General
Motors withheld information regarding the dangerous air bag
systems from the class members in general and from NHTSA
23a
Appendix B
is one that is also common to the class. If Cartwright and
Ford prevail on their claims, the class will benefit from the
determination. Likewise, if General Motors prevails, the class -
will also be bound by that determination. This is precisely
the type of situation envisioned by § 2023 wherein a class
action effectively and efficiently resolves issues common to
many with efficient utilization of judicial resources.
The common issues presented here are such that in
litigating the liability issues, the representative plaintiffs may
reasonably be expected to advance the interests of all class
members toward a favorable determination with respect to
each such issue. Therefore, this Court finds that the claims
of the representative plaintiffs are typical of the claims of
the class.
4. The Plaintiffs will Fairly and ee Protect
the Interests of the Class.
The adequacy inquiry focuses on whether the
representative parties will fairly and adequately protect the
interests of the class. Black Hawk Oil v. Exxon, supra., 969
P.2d 337. This requirement is met if (1) plaintiffs’ attorneys
are qualified, experienced and generally able to conduct the
litigation and (2) plaintiffs’ interests are not antagonistic to
those of the class they seek to represent. See. e.g., Prudential,
148 F.3d at 312; Lewis v. Curtis, 671 F.2d 779, 788 (3rd
Cir.), cert. denied, 459 U.S. 880 (1982).
It is evident that plaintiffs have retained counsel highly
experienced in class action litigation to prosecute their
claims. All counsel for plaintiffs have been appointed class
24a
Appendix B
counsel in successful consumer litigation in numerous states,
including the State of Oklahoma. Some of the counsel for
the plaintiffs have previously practiced before this Court on
several occasions regarding class issues. Therefore, this Court
finds that the first prong of the adequacy inquiry has been
satisfied.
Second, there is nothing in the record to suggest that
either Cartwright or Ford have any interests antagonistic to
the claims advanced on behalf of the class.
This Court believes the representative Plaintiffs will
adequately represent the interests of the Class, and have no
interests antagonistic to the Class they seek to represent;
therefore, this Court finds that the adequacy requirement of
§ 2023(A) has been satisfied.
5. Predominance Requirements for a Class Action
under Section 2023(B)(3) are Satisfied.
a. Common Issues Predominate Over
Individual Issues
Plaintiffs seek certification of an “opt out" class with
regard to the "damages" claims pursuant to § 2023(B)(3),
which states that certification is appropriate when:
The court finds that the questions of law or fact
common to the members of the class predominate
over any questions affecting only individual
members, and that a class action is superior to
other available methods for the fair and efficient
25a
Appendix B
adjudication of the controversy. The matters
pertinent to the findings include:
(a) the interest of the members of the
class in individually controlling the
prosecution or defense of separate
action,
the extent and nature of any
litigation concerning the
controversy already commenced by
or against members of the class,
the desirability or undesirability of
concentrating the litigation of the
claims in the particular forum, and
the difficulties likely to be
encountered in the management of
a Class action.
Okla. Stat. Ann. Title 12 § 2023(B)(3) (1991)
This subsection requires that two basic findings be made:
(1) that common questions of law or fact predominate, and
(2) that a class action is superior to other forms available for
fair and efficient adjudication. Okla.Stat.Ann. Tit. 12 § 2023
(1991); Lobo Exploration Co. v. Amoco Productions, 991
P.2d at 1052. Both findings simply call for a qualitative
analysis of the case. See Matton v. City of Norman, 1981 OK
92, 633 P.2d 735, 739 (Predominance "is a qualitative rather
than a quantitative matter").
Those members of the Class interested in pursuing their
own actions have the right and ability to do so under a (B)(3)
26a
Appendix B
certification. Thus, the inquiry becomes a pragmatic one that
asks whether there are enough common questions to justify
a common adjudication. Copley, 158 F.R.D. at 491. The
Plaintiffs have demonstrated that both predominance and
superiority are satisfied in the case at hand, and this Court
concludes that this case should be certified pursuant to
§ 2023(B){3).
b. Predominance of Common Questions of Law
or Fact
Section 2023(B)(3) requires only that common questions
of law or fact predominate. Further, federal courts uniformly
hold that not every question of law or fact must be common
to the class; it is sufficient that common questions
predominate over individual ones. See, 7A Wright, Miller &
Kane, Federal Practice and Procedure: Civil 2d § 1778 at
528 (1986). :
"Factual variations in the individual claims will not
normally preclude class certification if the claim arises from
the same event or course of conduct as the class claims, and
gives rise to the same legal or remedial theory." Lobo
Exploration Co. v. Amoco Productions, 991 P.2d 1048, 1055
(Okla. 1999). Common issues clearly predominate in this
case. There is one core liability issue that predominates this
case: Whether the GM design defect is present in all vehicles.
See, Samuel-Bassett v. Kia Motors America, Inc.,212 F.R.D.
271, 282 (E.D. Pa. 2002). Each class member possesses the
same GM P-90 automobiles manufactured in Oklahoma
between 1997 and April 24, 1999, containing the same airbag
system with the same defects. All claims arise from the same
27a
Appendix B
conduct of GM in continuing to allow these vehicles to
operate on the roadways without fixing the defective airbag
systems or informing the owners, lessors and NHTSA of the
defects. All class members seek the same relief. No individual
questions exist. Common questions of fact clearly
predominate. This alone is sufficient to meet the requirements
of § 2023(B)(3).
Defendant argues that the need to apply different states’
laws destroys the predominance finding. The plaintiffs and
the defendants have each presented an analysis of the choice
of law issues. The Plaintiffs have also presented a number of
decisions where the court, in similar cases, has found the
predominance requirement met despite the choice of law
problems. After reviewing these the Court concludes that the
alleged choice of law problems identified by the Defendants
do not bar certification for at least two reasons. First, GM's
argument that fifty state's laws will apply overstates the
choice of law issues.
"There will never be 50 different substantive rules,
or even fifteen or ten. States tend to copy their
laws from each other, and many use identical or
virtually identical rules. In practice, the court will
seldom have to deal with more than three or four
formulations...
L. Kramer, Choice of Law in Complex Litigation, 71 N.Y.U.
L. Rev. 547, 583 (1966). The Court believes that the creation
of subclasses will make the issues manageable for purposes
of adjudication. § 2023(C)(4), O'Keefe v. Mercedes-Benz
USA, L.L.C., 215 F.R.D, 266, 291 (E.D. Pa. 2003).
28a
Appendix B
Second, and more important, when the Court makes its
choice of law decision, the Court is mindful that the
Oklahoma Supreme Court resolved this issue in Ysbrand v.
Daimler-Chrysler, 81 P.3d 618 (Okla. 2003), where it held
that a nationwide class of owners of minivans equipped with
defective airbags could properly bring their UCC warranty
claims, express and implied, in the Oklahoma courts.
c. A Ciass Action as the Superior Method for
Adjudication
In assessing superiority, courts acknowledge that case
management challenges may flow from a grant of class
certification. However courts also recognize that the broad
discretion vested in the trial court by § 2023 provide the
framework and flexibility to meet such challenges. See Okla.
Stat. Ann. Tit. 12 § 2023(C) (1991). The ability of the class
action device to bring all claimants together for adjudication
of their common issues in a single proceeding far outweighs
the logistical demands of class treatment, particularly since
the class mechanism "reduces the systemic burden" on the
court system and litigants by reducing the time and costs
which must otherwise be spent in replicating the same case
many times over. Copley, at 473.
The named plaintiffs aver that General Motors owes the
class members either appropriate compensation for the cost
of retrofitting their vehicles with safe air bags, or to provide
the class members with the difference in value of the vehicles
they believed they were purchasing/leasing and the
diminished value of the defective vehicles they actually
received.
29a
Appendix B
It has been argued oy the plaintiffs that the estimated
cost of retrofitting an automobile-with the new algorithm is
approximately $500 per vehicle. It is not conceivable that an
individual plaintiff would bring suit, or even be able to find
an attomey willing to handle a case with such a low potential
recovery, on his/her own behalf. As such, it is clear that most
individual claims are not sufficiently substantial to support
individual litigation, a factor in support of plaintiffs’ argument
that a class action is superior to other means of adjudication.
The alternatives to a class action are either no recourse
for hundreds of thousands of vehicle owners, or even in the
unlikely event that they all become aware of their rights and
could Jocate counsel, a multiplicity of scattered suits resulting
in the inefficient administration of litigation.
The GM contends that administrative remedies are
superior to Plainti*s' claims. The premise of this argument
is that these remedies preempt Plaintiffs' claims, an argument
that the Court has rejected in denying defendant's motion to
dismiss. In addition, GM's argues that NHTSA provides a
remedy that is superior to a class action. Here, NHTSA has
already closed its inquiry when GM provided the statistics
GM provided. Thus, GM's argument fails for the same reason
that the Oklahoma Supreme Court in Ysbrand rejected this
argument under nearly identical circumstances.
"There is no administrative method of
adjudication available to Plaintiffs. The NHTSA
has declined to investigate further. An alternate
method for adjudication must be available in order
for it to be superior" [under 2023(B)(3)].
Ysbrand at 628.
30a
Appendix B
CONCLUSION
Because this Court finds that class certification will
provide a just, speedy, and inexpensive determination of this
case, and because Plaintiffs' request complies with Section
2023 of Title 12 of the Oklahoma Pleading Code, the
Plaintiffs’ Motion for Class Certification is GRANTED.
The Court hereby CERTIFIES the following class
against Defendant General Motors:
All current owners and lessees of 1997-1999
General Motors P-90 platform automobiles
manufactured in Oklahoma, encompassing all
persons or entities resident in the United States
who own or lease Chevrolet Malibu and
Oldsmobile Cutlass models manufactured before
April 24, 1999. Excluded from this class is any
person, firm, corporation, trust or other entity
related to or affiliated with defendant General
Motors or any person who has or had an action
for personal injury or death against General
Motors as a result of an inadvertent airbag
deployment in such vehicle.
The Court, however, declines at this time to decide the
necessity or scope of any Rule 2023(c)(4) subclasses.
The Court hereby appoints the following law firms as
Class Counsel for the plaintiffs and the class: Michael
Burrage of the Burrage Law Firm; Henry A. Meyer, III, John
B. Norman and Jonathan Chris Horton of Norman & Edem,
3la
Appendix -B
PLLC; Sean Burrage of Taylor, Burrage, Foster, Mallett,
Downs & Ramsey, P.C.; Steve Garner and Jeff Bauer of The
Strong Law Firm, P.C., and Edward D. Robertson, Jr. and
Mary D. Winter of Bartimus, Frickleton, Robertson & Obetz,
PC.
The Court notes that this certification, like all class
certifications, is conditional and may be reconsidered at a
later date, if necessary.
The Court, having fully considered the positions of all
the parties, further finds that any outstanding objections to
class certification are overruled.
The Clerk is directed to send a certified copy of this Order
to all counsel of record.
ENTERED this 18 day of February, 2004.
s/ ILLEGIBLE
32a
APPENDIX C — ORDER OF THE SUPREME
COURT OF THE STATE OF OKLAHOMA
DENYING PETITION FOR CERTIORARI
DATED AND FILED APRIL 4, 2005
IN THE SUPREME COURT OF THE
STATE OF OKLAHOMA
Monday, April 4, 2005
THE CLERK IS DIRECTED TO ENTER THE
FOLLOWING ORDERS OF THE COURT:
* * *
100,474 Delmas Ford, et al., v. The General Motors
Corporation, a Deleware Corporation
Petition for certiorari is denied.
CONCUR: Watt, C.J., Lavender, Opala,
Edmondson, Taylor, Colbert, JJ.
DISSENT: Winchester, V.C.J., Hargrave, J.
NOT PARTICIPATING: Kauger, J.
ee ae
s/ Joseph M. Watt
CHIEF JUSTICE
33a
APPENDIX D — CONSTITUTIONAL
PROVISIONS INVOLVED
ARTICLE I, SECTION 8
(Commerce Clause)
Congress shall have the power. . . To regulate Commerce
with foreign Nations, and among these several States, and
with Indian Tribes.
ARTICLE IV, SECTION 1
Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings ofevery other -
State. And the Congress may by general Laws prescribed the
Manner in which such Acts, Records and Proceedings shall
be proved, and the Effect thereof.
FOURTEENTH AMENDMENT, SECTION 1
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
ae
No. 05-39
IN THE
Supreme Court of the United States
GENERAL MOTORS CORPORATION,
Petitioner,
DELMAS FORD, SHIRLEY CARTWRIGHT,
BERT CROSSLAND, MARGARET CROSSLAND, et al.,
s Respondents.
On Petition for a Writ of Certiorari to the
Court of Civil Appeals of Oklahoma, Division III
RESPONDENTS’ BRIEF IN OPPOSITION
HENRY A. MEYER, III EDWARD D. ROBERTSON, JR.
ABOWITZ, TIMBERLAKE (Counsel of Record)
& DAHNKE,PC - BARTIMUS, FRICKLETON,
105 N. Hudson, 10th Floor ROBERTSON & OBETZ, P.C.
P.O. Box 1937 715 Swifts Highway
Oklahoma City, OK 73101 Jefferson City, MO 65109
(405) 236-4645 (573) 659-4454
BRIAN WOLFMAN MICHAEL BURRAGE
PUBLIC CITIZEN BURRAGE LAW FIRM
LITIGATION GROUP 115 N. Washington, Suite 100
1600 20th Street, NW P.O. Box 1727
Washington, DC 20009 Durant, OK, 74702
(202) 588-1000 (580) 920-0700
Counsel for Respondents
September 2005
i
QUESTION PRESENTED
Does this Court have jurisdiction under 28 U.S.C.
§ 1257 to review the judgment of the Oklahoma Court
of Civil Appeals, Division II, affirming the trial court's
interlocutory class certification order?
Does the Due Process Clause or the Commerce Clause
forbid a court from applying the law of one state to the
claims of a nationwide class of plaintiffs, where that
state has a significant relationship to those claims?
Does a class action notice violate due process solely
because it does not identify which state’s law will
apply?
ii
TABLE OF CONTENTS
QUESTIONS :"RESENTED
TABLE OF AUTHORITIES
INTRODUCTION
RTE REE his oo ks ee Een Ly ees pea eee 2
REASONS FOR DENYING THE WRIT
This Court Lacks Jurisdiction Because the
Jucemont Beiow fe Not-Final. on. ee a 4
Petitioner Did Not Present to the Oklahoma
Supreme Court the Principal Federal Issues
On Which & Seeks Review, 2 oo es eens 7
No Court Has Adopted the Due Process
Analysis Urged by Petitioner. ................. 9
No Court Has Rejected a State Choice-of-Law
Ruling Supported by Significant Contacts on
the Ground That It Violates Constitutional
Limits on Extraterritonal Regulation. .......... 14
No Court Has Held That a Class Notice Must
Identify Which State’s Law Will Apply. ........ 17
CONCLUSION
iil
TABLE OF AUTHORITIES
CASES
In re Activision Sec. Litig.,
1985 WL 5827 (N.D. Cal. Dec. 2, 1985)
Adams v. Robertson,
520 U.S. 83 (1997)
Allstate Ins. Co. v. Hague,
449 U.S. 302 (1981)
Am. Trucking Ass'ns, Inc. v. Mich. Pub. Serv.
Comm'n.
125 S. Ct. 2419 (2005)
BMW of N. Am., Inc. y. Gore,
517 U.S. 559 (1996)
Clarke v. TAP Pharm. Prods., Inc..,
798 N.E.2d 123 (Ill. App. Ct. 2003)
Compag Computer Corp. v. Lapravy,
135 S.W.3d 657 (Tex. 2004)
In re Computer Memories Sec. Litig.,
111 F.R.D. 675 (N.D. Cal. 1986)
Coopers & Lybrand v. Livesay,
RPO A. OD COFFEE ok os viens ce Cees Sean 5,6
Cox Broad. Corp. v. Cohn,
420 U.S. 46941975)
1V
Day & Zimmerman, Inc. v. Challoner,
423 U.S. 3 (1975)
Debbs v. Chrysler Corp..,
810 A.2d 137 (Pa. Super. Ct. 2002)
Florida v. Thomas,
532 U.S. 774 (2001)
Flynt v. Ohio,
451 U.S. 619 (1981)
~
Franchise Tax Bd. v. Hyatt,
538 U.S. 488 (2003)
Georgine v. Amchem Prods., Inc.,
83 F.3d 610 (3d Cir. 1996), aff'd sith nom.
Amchem Prods., Inc. v. Windsor,
321 U.S. 391 (1997)
Gravquick A/S v. Trimble Navigation Int'l Ltd.,
323 F.3d 1219 (9th Cir. 2003)
Henry Schein, Inc. v. Stromboe,
102 S.W.3d 675 (Tex. 2002)
Instructional Sys., Inc. v. Computer Curriculum Corp.,
35 F.3d 813 (3d Cir. 1994)
Instructional Sys., Inc. v. Computer Curriculum Corp.,
614 A.2d 124 (NJ. 1992)
Jefferson v. City of Tarrant,
522 U.S. 75 (1997)
Johnson v. California,
541 U.S. 428 (2004)
Kirkpatrick v. J.C. Bradford & Co.,
827 F.2d 718 (11th Cir. 1987)
Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487 (1941)
In re LILCO Sec. Litig.,
111 F.R.D. 663 (E.D.N.Y. 1986)
In re Lutheran Bhd. Variable Ins. Prods. Co.
Sales Practices Litig.,
201 F.R.D. 456 (D. Minn. 2001)
Macomber v. Travelers Prop. & Cas.,
2004 WL 1559183
(Conn. Super. Ct. May 26, 2004)
Morrissey v. Brewer,
SR OA AMT Es 65 is wee i ec eens cae es 18
In re Nissan Motor Corp. Antitrust Litig.,
552 F.2d 1088 (5th Cir. 1977)
Phillips Petroleum Co. vy. Shutts,
472 U.S. 797 (1985)
Public Citizen v. Nat'l Highway Traffic Safety
Admin.,
ee Ee CE es ls Pe bs eect pave ce bas 2
Simon v. Phillip Morris, Inc.,
124 F. Supp. 2d 46 (E.D.N.Y. 2000)
State Farm Mut. Ins. Co. v. Campbell,
538 U.S. 408 (2003)
Street v. New York,
394 U.S. 576 (1969)
Tracker Marine, L.P. v. Ogle,
108 S.W.3d 349 (Tex. App. 2003)
Skinner v. John Deere Ins. Co.,
SORT ob re ee es os Se a ee
Washington Mut. Bank, FA v. Superior Court,
SP tC ae. OR). ee Se ie ees 13
Walsh v. Ford Motor Co.,
807 F.2d 1000 (D.C. Cir. 1986)
Yee v. City of Escondido,
PA a is ea ee ee we 9
Ysbrand vy. DaimlerChrysler Corp.,
81 P.3d 618 (Okla. 2003),
cert. denied, 124 S. Ct. 2907 (2004)
Zinser v. Accufix Research Inst.,
253 F.3d 1180 (9th Cir. 2001)
STATUTES AND RULES
28 ULS.C. §
28 U.S.C. § 1291
Class Action Fairness Act of 2005,
Pub. L. No. 109-2, § 4(a),119 Stat 4
(to be codified at 28 U.S.C. § 1332(d))
Fed. R. Civ. P.
Fed. R. Civ. P.
Fed. R. Civ. P. 23(f), Advisory Committee Notes
U.S. S. Ct. Rule 14.1(g)()
MISCELLANEOUS
Stern, Gressman, et al.,
Supreme Court Practice (8th ed. 2002)
Federal Judicial Center,
“Illustrative” Forms of Class Action
Notices: Employment Discrimination
Class Action Certification: Full Notice 3-4,
at http://www.fjc.gov/public/pdf.nsffookup/
ClaAct1 1.pdf/$file/ClaAct11.pdf
INTRODUCTION
Petitioner General Motors Corporation (“GM”) asks this
Court to review an unreported decision of the Oklahoma Court
of Civil Appeals, Division Ill, affirming the trial court's
decision to certify a nationwide products liability class action.
The decision below closely follows the Oklahoma Supreme
Court's decision in Ysbrand v. DaimlerChrysler Corp., 81 P.3d
618 (Okla. 2003), from which review was sought and denied
just last year, 124 S. Ct. 2907 (2004).
GM's petition, which resurrects the petition in Ysbrand
nearly verbatim, should be denied for the same reasons
certioran was denied in that case. Most fundamentally, review
should be denied because this Court lacks jurisdiction over non-
final orders from the state courts. The Court has previously
concluded that orders granting class certification are
interlocutory, and the petition fails to present any compelling
policy reason to depart from that conclusion. But even if this
Court did have jurisdiction, certiorari would be inappropriate
because no court has ever adopted the Due Process or
Commerce Clause analysis that GM urges here. On the
contrary, when confronted with the issue presented—whether
the Constitution prevents a court from applying the law of one
state to the claims of a nationwide class of plaintiffs, when that
state has a significant relationship to those claims—courts
across the nation have uniformly come to the same conclusion
as the Oklahoma courts. Moreover, the petition’s view that due
process requires a class notice to identify the state whose law
will be applied has never been addressed, much less adopted, by
any appellate court.
Additionally, three features of this case make it even
less certworthy than Ysbrand. First, GM failed to present to the
Oklahoma Supreme Court the principal federal questions that
it now asks this Court to review. Second, as GM conceded
below, appellate review of the issues presented here would be
premature in light of the tnal court’s decision to defer the
ultimate determination of what state’s law wili apply to
plaintiffs’ claims. Third, as the petition acknowledges, the
recent enactment of the Class Action Fairness Act of 2005
significantly diminishes the importance of the issues presented
in the petition.
STATEMENT
Automobile manufacturers have long known of the
dangers caused by inadvertent deployment of airbags. “Because
air bags are designed to inflate almost instantly upon impact.”
in some circumstances, “the force of the inflation can injure,
even kill.” Public Citizen v. Nat'l Highway Traffic Safety
Admiun., 374 F.3d 1251, 1254 (D.C. Cir. 2004). Between 1997
and 1999, GM manufactured over 420,000 Chevrolet Malibu
and Oldsmobile Cutlass automobiles at its facility in Oklahoma
City. In 1999, as evidence began to accumulate that these two
models, known collectively as GM P-90 automobiles, contained
defective airbag systems that tended to deploy inadvertently, the
National Highway Traffic Safety Administration (NHTSA)
opened a safety investigation into the defects. NHTSA,
however, ultimately closed its investigation without issuing a
recall or requiring GM to correct the problem. Pet. App. 8a.
Respondents are owners and Iessees of GM P-90
automobiles who sucd GM in Oklahoma, alleging that the
airbag system in their automobiles was defective and asserting
claims under the Uniform Commercial Code for breach of
express warranty, breach of the implied warranty of
merchantability, and breach of the implied warranty of fitness
3
for a particular purpose, as well as claims under the Magnuson-
Moss Warranty Act, 15 U.S.C. § 2310, and for unjust
enrichment. Pet. App. 2a.
The Oklahoma trial court certified a class of all current
owners and lessees of GM P-90 platform automobiles
manufactured in Oklahoma between 1997 and 1999. Pet. App.
30a. The trial court considered the parties’ arguments
concerning choice of law and rejected GM's argument that the
need to apply different states’ laws precluded a finding that
common issues predominate. Pet. App. 28a. Instead, the court
rclied on the Oklahoma Supreme Court’s decision in Ysbrand,
which held that Oklahoma’s choice-of-law rules permit the
application of the law of a single state to the U.C.C. warranty
claims of a nationwide class, where that state has a significant
relationship with the claims. The court, however, deferred the
ultimate choice-of-law determination to the ments stage of the
procecdings. Id.
GM immediately appealed the certification order, which
a three-judge panel of the Oklahoma Court of Civil Appeals,
Division II, unanimously affirmed in an unpublished opinion.
With respect to GM's choice-of-law arguments, the appellate
court concluded that the Oklahoma Supreme Court had already
“considered these issues in Ysbrand.” Pet. App. 4a. Because
Ysbrand held that Oklahoma’s choice-of-law doctrine allows
application of the law of the manufacturer’s state to UCC
warranty claims without violating due process, the appellate
court concluded, the tnal court did not abuse its discretion in
'There are four divisions of the Oklahoma Court of Civil Appeals.
Unless it is published, an opinion of any one of the divisions has “no
precedential effect.” Skinner v. John Deere Ins. Co., 998 P.2d 1219, 1224
(Okla. 2000).
4
deciding to certify the class. Pet. App. 7a. GM then filed a
petition forcertioran with the Oklahoma Supreme Court, which
was denied. This petition followed.
REASONS FOR DENYING THE WRIT
This Court Lacks Jurisdiction Because the
Judgment Below Is Not Final.
Congress has limited this Court’s review of state court
decisions to “{fJinal judgments or decrees rendered by the
highest court of a State in which a decision [on a federal
question] could be had.” 28 U.S.C. § 1257(a). Recognizing the
inherently interlocutory nature of the decision below, petitioner
attempts to invoke the fourth exception to section 1257's
finality requirement. See Cox Broad. Corp. v. Cohn, 420 U.S.
469, 482-83 (1975). That narrow exception has two
requirements. First, the state court judgment must represent the
final word within the state court system on a federal issue, with
further proceedings pending in which the party seeking review
might prevail on the merits on non-federal grounds, and where
reversal of the state court on the federal issue would preclude
any further litigation on the relevant claims. /d. Second, “a
refusal immediately to review the state-court decision” must
present a risk of “seriously erod[ing] federal policy.” Jd.
Neither requirement is met here.
First, the federal issues on which review is sought have
not been finally decided by the courts of Okluhoma. As
explained below (at 7-9), the Oklahoma Supreme Court never
had an opportunity to decide the principal questions presented
in the petition. Moreover, GM conceded in its petition to the
Oklahoma Supreme Court that review of the federal
consututiona: questions that it now asks this Court to decide
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.