Courts should resolve any doubts about certifying a class action lawsuit in favor of certification, Kanawha County Circuit Judge Paul Zakaib ruled in ordering a class action against C&O Motors of Saint Albans.

Zakaib’s Oct. 11 order captures all the elements that add up to a class action. Excerpts follow:

“The West Virginia Supreme Court of Appeals has confirmed that ‘class actions are a flexible vehicle for correcting wrongs committd by a large-scale enterprise upon individual consumers…’

“Under West Virginia procedure, 'any question as to whether a case should proceed as a class action in a doubtful case should be resolved in favor of class certification...’

“Plaintiff is ‘not required to prove the identity of each class member or the specific number of members.’ Instead, ‘the description of the class must be sufficiently definite so that it is administratively feasible for the court to ascertain whether a particular individual is a member.’

“Plaintiff has limited the class period between the date Defendants began selling new Daewoo motor vehicles and August 2, 2002, when Defendants began their bankruptcy advertising campaign. In the opinion of this Court, the class definition proposed by Plaintiff is sufficiently precise…

“Rule 23(a)(1) of the West Virginia Rules of Civil Procedure requires that a class be so numerous that joinder of all its members is ‘impracticable’…class actions have been certified when there have been as few as seventeen to twenty members of the class.

“Here, based upon Defendants’ representations during the class certification hearing, the class consists of at least 91 individuals…

“Rule 23(a)(2)…requires that the party seeking class certification show that ‘there are questions of law or fact common to the class’…The common questions need be neither important nor controlling, and one significant common question of law or fact will satisfy this requirement...

“Defendants argue the date of purchase and terms of purchase will differ from purchaser to purchaser…those differences do not alter the potential illegality of the practices alleged against Defendants…

“Rule 23(a)(3)...requires that the class representatives’ claims be typical of the other class members’ claims, not that the claims be identical…Indeed, it is well settled that the requirements of ‘commonality’ and ‘typicality’ under Rule 23(a) tend to merge in most cases…

“Here, the Plaintiff’s claims are typical of the class claims because they were ‘injured by the same practice or course of conduct’…Similarly, all of the claims are typical in that they center upon the date which Defendants knew or should have reasonably known the material facts surrounding DMA’s financial troubles…

“Rule 23(a)(4)…requires that the party seeking class action status show that the ‘representative parties will fairly and adequately represent the interests of the class’…

“Defendants have attacked the adequacy of the Plaintiff. They contend that since he purchased a vehicle prior to DMA filing bankruptcy, his claim is less meritorious than those class members who may have purchased Daewoo vehicles after DMA filing bankruptcy.

“However, Plaintiff has adduced evidence which shows Defendants knew or should have reasonably known about the financial troubles of DMA well in advance of Plaintiff’s purchase and the DMA bankruptcy filing…

“The Court must determine if ‘questions of law or fact common to the members of the class predominate over any questions affecting only individual members…

“While the ‘commonality’ requirement simply requires a showing of common questions, the ‘predominance’ requirement requires a showing that the common questions of law or fact outweigh individual questions…

“Plaintiff claims he did not receive a vehicle with the express warranty which he had ‘bargained for.’ Ultimately, whether Plaintiff received a vehicle with the express warranty he bargained for goes to the merits of the case.

“Defendants primarily object that individual issues of fact potentially involved I each purchase transaction will predominate. However, Defendants have failed to fully articulate what individual issues will affect determination of the above basic issue.

“Although the salesperson and the finance and insurance representative may vary from transaction to transaction, those differences do not alter the potential illegality of the practices alleged against Defendants…

“Rule 23(b)(3) requires a showing ‘that class action is superior to other available methods for the fair and efficient adjudication of the controversy”…

“Here, it would be highly inefficient for class members to pursue each claim individually especially when considering the overarching issues as to Defendants’ knowledge and conduct in failing to disclose the material facts concerning DMA’s financial difficulties and exclusion from the GM purchase.

“Conversely by certifying the class, a determination can be made in a single action as to whether the Plaintiff and class members purchased an inferior or different product than what they bargained for because of Defendants’ failure to disclose the aforementioned material facts…

“Based on the foregoing reasons, Plaintiff’s motion to certify the class pursuant to Rule 23(b)(3) is granted…”




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