a class action, the defendant may be faced with the prospect of a judgment resulting from a single trial that, because of the class size, could be overwhelming. As a result, class action defendants often have to give serious consideration to settlement, with diminished regard for possible valid defenses, prior to the court’s certification decision. On the other hand, cases not allowed to proceed as class actions are generally not of sufficient potential judgment value to merit pursuing to trial.11 The recent case of General Motors v. Bryant12 provides a good example of the dilemma that can be faced by the defendant if the case is certified as a class action. The primary remedy sought in that case was money damages to replace a brake part on the Chevrolet trucks owned by approximately four million class members who were scattered over all 50 states and the District of Columbia. The Arkansas Supreme Court upheld certification of the case as a class action, holding that the common issue of defectiveness of the brake part should be tried first with individual issues, including possible variations in the law of 51 jurisdictions, reserved for later determination by the trial court.13 Certification of the case as a class action put General Motors at risk for a potential judgment of over $350 million if it lost the single trial on the common issue of product defect. III. Signature Characteristics of Modern Arkansas Class Action Doctrine Generally Favoring Class Certification Since the 1988 Hudson decision, over 100 decisions of the Arkansas Supreme Court have contributed to the evolution of Arkansas Rule 23 class action doctrine. This section will focus on those aspects of the doctrine that indicate an approach favoring class certification.
A. The Primary Components of Arkansas’s Overarching Approach to Class Certification: (a) “Certify now, decertify later” plus (b) “Delving into the merits is prohibited” = (c) Determination of whether the case can be managed as a class action may be postponed until after the case has been certified as a class action – The primary components of the Arkansas Supreme Court’s overarching approach to class certification are related. The first has been loosely described as “certify now, decertify later.”14 In the words of the Court: The mere fact that individual issues and defenses may be raised by the defendant regarding the recovery of individual class members cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing that must be resolved for all class members.15 [A]s to manageability, this court has made it abundantly clear that a circuit court can always decertify a class should the action become too unwieldy.16 In many Arkansas Supreme Court class action decisions the “certify now, decertify later” approach has been coupled with the Court’s oft
Professor Kenneth S. Gould teaches law at the University of Arkansas William H. Bowen School of Law. His teaching and research interests are especially in the civil procedure – class action and water law areas.
Vol. 45 No. 4/Fall 2010 The Arkansas Lawyer
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