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
How common is common enough? I think a great start is location and company used. Does everyone also have the same problems regarding insulation (i.e., panels not turned on, wrong panels used) and when were panels installed for everyone?
ReplyDeleteI think solar panel companies are a dime a dozen in this state and the question to me that I would ask myself is will this company be around for the long term? If not, I personally would join a class action lawsuit. I think there is strength in numbers to consider.
Leigh Ann...You are correct that there is strength in numbers and a class action is a great way to pursue a claim that singly may not be large enough to warrant filing an individual lawsuit. The tradeoff is that you lose control over the litigation unless you are one of the named class representatives.
DeleteI think you’ve identified one of the biggest obstacles to class action suits. Due to the prerequisites you listed, creating a class that can successfully file a class action is a challenge. Particularly, judges are human, so whether a judge will find that the class has common facts or not is entirely unpredictable. In the example you described, I think it would likely come down to the protocols of the solar panel company. For example, were all the panels installed for the members of the class by an apprentice without the presence of the experienced electrician? If the answer is yes, I think the judge would likely say the class has common facts and a strong case against the company.
ReplyDeleteJenna...good observation. Likely, a judge would have to find that all five of the facts Andrew identified are common to the purported class before the judge would certify the case as a class action. Or, if only three of the five existed, the judge could define the class so as to only include those individuals who share those three common facts.
DeleteI am grateful for your example as it made this concept, and the difficulty of finding common facts in large-scale cases, much more understandable. Just as with team projects in school, joinding seems like a terrible idea... and I would rather do all the work and earn the verdict I earn without some glue eater ruining it. I want to look up the statistics of civil cases against corporations that are class action and those that are solo and compare which is more successful for the plaintiff. Leigh Ann above me is leaning towards "strength in numbers" and she seems to know her stuff so I'll go with her.
ReplyDeleteMichael...no one likes glue eaters! :) The larger teh proposed class of plaintiffs the more difficult it is to establish common facts.
DeleteI would agree with Leigh Ann in that there is strength in numbers. However, in considering the question of how common is common enough there are additional considerations and prerequisites that must be answered before determining the strength of the fact in common. Determining the commonality of facts depends on the question of law and the question of law may be dependent on the fact pattern when considering the application of the law. Therefore, to answer the question of how common is common enough the best answer has to come from a thorough investigation of the facts. I think it can be easy to say that on the surface it appears we may have a potential for a class-action, however, as we keep learning facts matter as does the pattern of those facts.
ReplyDeleteNikki...good observation that the question of whether a case may be pursued as a class action is highly dependent on the facts and the full extent of the facts may not be known at the outset of a case.
DeleteMy first thought when reading the story was to think that these families do have a "common" claim in that the company did not provide the service that they agreed to and engaged in unethical (possibly unlawful) practices. I was leaning towards a class action. However, Leigh Anne touched on it on her comment, and I read through Rule 23 again, and it states that in addition to the prerequisites you listed above they must also meet more criteria including:
ReplyDelete“(b)(3) 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,” (URCP Rule 23)
My reading of that would be that, in this situation, the common fact would have to be that not only did the company engage in unlawful practices when installing their solar panels, but that they were the SAME unlawful practices. Did they only use apprentices in all the installations? Did they never turn it on before the city inspection in all installations? Were they all given different solar panels than advertised? If that is true for all the cases then it would seem that the common facts “predominate” over the individual facts. I guess they would have to dig deeper in to the experiences and harm done in each situation to determine whether they would meet that criteria.
Good analysis! It is a multi-faceted investigation of the facts and that investigation may result in a class being denied or more narrowly defined than originally contemplated.
DeleteHow common is common enough? I am not sure this is a suitable class action as negligence is not proven, and there are no damages. The only item under discussion is the brand of solar panel is different and an apprentice who had the work checked was checked off as good by a licensed electrician. What are the actual damages and what was in the contract they signed? Also, the relative hasn't paid for the solar system, I believe the contractor can actually sue the homeowner if they have a signed contract. I believe this is why the local jurisdiction requires an inspection to approve the system. It seems like not much of a case, homeowners always have complaints about contractors.
ReplyDeleteTravis...you raise an excellent point about what damages have been suffered if the homeowner has not paid the solar panel installer. This pertains to "standing" which we will discuss this coming Friday in class.
DeleteOf course so much more information would be needed to truly determine the best course of action. Certainly a frustrating experience, and interesting to note that there are others with a similar claim. If I were in this position, I would be very interested to see how common the facts are as it would save the individuals a lot of money to bring this forth as a class action lawsuit. However, there is so much grey area as to whether it would classify as being common enough, that is why I would really want to compare notes with some of the others. I agree with Marci's assessment of the common facts that need to be present.
ReplyDeleteRelated, and raising more questions, after reading Michael's post, perhaps they would be better off (get a better payout) if they brought this suit individually. In the case of 3M, it appears the payout did not compensate for damages. This raises more questions about what I don't know. If a class action suit is filed that does have commonality to your family's case but they choose not to join the class action suit and pursue it individually, is that even possible if a class action suit is simultaneously being filed with common facts? Or is it join the class action, or nothing?
Great question, Kara. if a case is certified by a judge to proceed as a class action a member of the class may "opt out" of the litigation and may proceed with their own separate lawsuit. However, if they do not opt out they will be bound by whatever outcome is obtained.
DeleteWill note that one cannot be a practicing engineer anywhere in the US without having a license equivalent to your training and education--and Utah actually had a recent update to their licensing rules for electrical engineers (https://adminrules.utah.gov/public/rule/R156-55b/Current%20Rules?). Basically, Utah Code Title 58 holds everything one would ever need to know about professional licensing in the state, though there aren't unique provisions for electrical engineers (rather, they fall under the "Construction Trades" category - Chapter 55).
ReplyDeleteWhile I can respect that pursuing a class-action lawsuit is not an easy decision to make, things may be established as a "common" set of circumstances insofar as the claim is made that the work was not conducted with "immediate supervision" per UAC subsection R156-55b-102(2)(b). Depending on when the work was done, however, citing the current rule may not actually do any good. Not certain if those with similar damage claims can adjust their suit to align better with those that cite a more/less specific section of federal, state, or municipal law, but I imagine that's another tactic used to establish "common-ness" in this space.
Tyler...Another relevant inquiry, even if a judge determines there is a common sets of facts is whether the claims are so numerous that it would be impracticable to join everyone is a single lawsuit
DeleteThat's great question.
ReplyDeleteAs a problem solver and avoider, I must say maybe create a social media account or blog if there is not one already made for those solar panels. Maybe also inquire in their review section. There your family member and other plaintiffs might find more plaintiffs and/or evidence.
How common is common may partly depend on the court of public opinion and those with influence. Is this something that may affect the public? Does the public care? Is there something else that might affect the court or judge? What did that court determine in similar cases?