actions. The Arkansas standard is simply that, “the representative counsel must be qualified, experienced, and generally able to conduct the litigation.”35 Under that standard the adequacy of the class counsel is seldom actually examined by the trial court because the Arkansas Supreme Court consistently holds that, “absent a showing to the contrary, we may presume the representative’s attorney will vigorously and competently pursue the litigation.”36 In short, the adequacy of class counsel will be considered only if challenged by the defendant. 4. Choice of law considerations – The Arkansas Supreme Court’s approach to resolving choice of law considerations in cases involving class members from different jurisdictions is the most liberal of the various aspects of the development of Arkansas class action procedure since the 1988 International Union of Electrical, Radio & Machine Workers v. Hudson case. In General Motors v. Bryant,37 a Miller County Circuit Court case, the Court framed the choice of law issue as follows, “we have suggested that multistate class actions are not per se problematic for Arkansas courts. A question of first impression still remains, however, as to whether an Arkansas circuit court must first conduct a choice-of-law analysis before certifying a multistate class action.”38 The Court’s answer is instructive in regard to the choice of law question and also reflects the Court’s reluctance to consider certification issues that overlap with merits determinations: [W]e cannot say that our class-action jurisprudence requires an Arkansas circuit court to engage in a choice-of-law analysis prior to certifying a class, as we
have not hesitated to affirm a finding of predominance so long as a common issue to all class members predominated over individual issues. While General Motors argues that a failure to require such an analysis precertification allows that analysis to evade review, it is mistaken. Upon a final order by the circuit court, General Motors would be able to challenge the circuit court’s choice of law, just as in any other case. Moreover, were we to require the circuit court to conclude at this time precisely which law should be applied, such a decision could potentially stray into the merits of the action itself, which we have clearly stated shall not occur during the certification process.39
definite, pertinent findings and conclusions upon the contested matters’”44 and need not “enter into the record a detailed explanation of why it concluded that certification was proper.”45 Regardless of the extent of differences between the federal “rigorous analysis” and the Arkansas “meaningful review” standards, the Arkansas Supreme Court frequently dismisses arguments that the trial court’s analysis of the Rule 23 factors was insufficient by simply noting that Arkansas does not require a rigorous analysis.46
5. No rigorous analysis – The Arkansas Supreme Court has consistently declined to require that trial courts conduct a “rigorous analysis” in determining whether the Rule 23 standards are factually supported, as has the United States Supreme Court for federal court class certification decisions.40 Addressing the rigorous analysis standard, the Arkansas Supreme Court has said that “[t]he fact that we have refused to adopt such a strict standard, however, does not mean that there is no standard at all.”41 The Arkansas standard is that the trial court must conduct a sufficient analysis to enable the appellate court to “conduct a meaningful review of the certification issue on appeal.”42 Although what constitutes a sufficient analysis for “a meaningful review” and how that analysis differs from the federal court “rigorous analysis” is not clear from the Court’s opinions, the Court has stated that, “[a]t a minimum, this requires more than a cursory mention of the six criteria or bare conclusions that those criteria have been satisfied. The trial court cannot simply rubber stamp the complaint”43 but “need only make ‘brief,
6. Disinclination to follow federal court class action procedure – In early cases under its modern class action doctrine, the Arkansas Supreme Court noted that it would follow the lead of the federal courts in developing Arkansas class action procedure, noting that “[t]he federal rule leans toward allowing class actions.”47 However, as the federal court interpretation of class action procedure began to retreat from the zenith of its favorable approach to class actions, the Arkansas Supreme Court began responding to citations to federal class action cases by stating that, “federal authority, however, is not controlling on this court.”48 IV. Though the General Approach is Favorable to Class Actions, the Arkansas Supreme Court has Declined to Recognize Class Certification in a Number of Cases Even though the approach of Arkansas class action jurisprudence since 1988 has generally been favorable to class actions, the Arkansas Class Action continued on page 45
Business Valuation Forensic Accounting Economic Loss Divorce Accounting, Tracing, Appraisal Commercial Damages, Agricultural Damages Certified Public Accountant Certified Fraud Examiner Accredited Senior Appraisers Court-Appointed Expert Testimony Fair Pricing Richard L. Schwartz CPA, MCBA, ASA, ABV, CFE Dick@SchwartzandAssociatesLLC.com
Schwartz & Associates LLC 11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 501-221-9900 / 501-221-9292 fax
Steven F. Schroeder JD, MCBA, ASA Steve@SchwartzandAssociatesLLC.com
Vol. 45 No. 4/Fall 2010 The Arkansas Lawyer
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