Questions of Law or
Fact Common to the Class: How common is common enough?
When a group of people are harmed by the actions of another
person or entity, they may be entitled to damages from that injury. These aggrieved
parties can unite in what is known as a class action lawsuit. However, there
are limitations, generally governed by state requirements, that limit the
ability to unite and proceed with a class action lawsuit. Aggrieved parties
must meet prerequisites. In the state of Utah, outlined in URCP Rule 23, the prerequisites
are:
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 and defenses of the representative
parties are typical of the claims or defenses of the class.
4.
The representative parties will fairly and
adequately protect the interests of the class. (Utah Courts)
For this blog post, I am addressing the 2nd
prerequisite, questions of law or fact common to the class. I have a
family member who is in the middle of litigation with, as they’ve described it,
an unscrupulous and unethical solar panel company. The facts as they’ve
described to me are as follows:
1.
The solar company installed the panels and the
battery system but never turned the system on or demonstrated how to turn the
system on before the required city inspection. (Apparently, turning the system
on before inspection is standard practice.)
2.
The solar panels themselves were not the ones as
advertised.
3.
The installation was done by unlicensed apprentice
electricians operating under the license of a journeyman electrician. The
journeyman electrician was never present during installation and, to my family
member’s knowledge, never came to the house to inspect the work of the
apprentices.
4.
A secondary inspection by a licensed electrician
determined the installation was “clean.”
5.
As of this posting, the solar panel system has
not been turned on, and my family member has not paid the solar panel installation
company.
While working with a lawyer to seek remedy, my family member
investigated independently and found numerous other customers in Utah County experienced
similar problems with the same company. This raises the possibility of a class
action lawsuit against the solar panel installation company. However,
prerequisite two must be tested and raises a much-debated question posed by
jurors, judges, legal scholars, and Professor of Law, Columbia Law School Robin
Effron: “How common is common enough?” Professor Effron states in her article,
The Shadow Rules of Joinder, “Litigants are taught to rely on the liberal rules
of joinder to build their lawsuits, but these rules are not without limits. At
some point, the extra claims and parties are too remote or their presence is
too disruptive, and joinder fails.” (Effron, 2012)
As my family member considers joining with these other aggrieved
customers he and his lawyer need to weigh the benefit of a united suit versus
how unwieldy the suit may become. He also needs to recognize that much of the
decision comes down to the judge and how the judge may view similarities in the
facts listed above with those that other parties may have experienced. In the
end there are broad rules, and what seem to be guidelines, but there are no
clear cut answers to “How common is common enough?”
Effron, R. (2012). The
shadow rules of Joinder - Brooklyn Law School. The Brookly Law School
BrooklynWorks.
https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?httpsredir=1&article=1101&context=faculty
Utah Courts. URCP
Rule 23 (Rules of Civil Procedure) - Utah Courts. (n.d.).
https://legacy.utcourts.gov/rules/view.php?type=urcp&rule=23#:~:text=One%20or%20more%20members%20of,are%20typical%20of%20the%20claims
