Associate Justice Donald Corbin

LITTLE ROCK, Ark. – The Arkansas Supreme Court heard arguments over multi-state class certification issues relating to product liability cases on Thursday, May 29.

The case was the first of its kind argued before the Arkansas Supreme Court. When the justices write the opinion, it should determine how extensively circuit courts should analyze issues before proceeding with class certification.

The Arkansas Supreme Court has long held that trials courts are not permitted to inquire into the merits of a case prior to certifying it as a class action.

An attorney for General Motors, Tom Casey, argued Thursday that in a case last year the Miller County Circuit Court erred in certifying a nationwide class prior to considering choice-of-law issues. Under Arkansas choice-of-law principles, the state law in which the vehicles were purchased will govern claims in litigation.

Circuit Court Judge Jim Hudson certified a nationwide class in January 2007 in a suit against General Motors that accused GM of selling vehicles with defectively designed parking brakes, including inadequate brake linings. Although the court certified a nationwide class of vehicle buyers who have asserted claims of fraudulent concealment, unjust enrichment and breach of express and implied warranties, it did not address how it will proceed with a trial that involves more than 50 different legal standards.

Standing before the justices, Casey discussed how the circuit court should have looked at the choice-of-law issue before certifying the class, as it is a threshold issue. Casey argued that even determining that the brake linings were defective is an abstract issue because different states have different interpretations of the meaning of "defective."

Each class member's claim must be evaluated under the state law from which the vehicle was purchased, argued Casey. Arkansas Rule of Civil Procedure Rule 23 over class actions states that a prerequisite to class actions is to determine "[if] there are questions of law or fact common to the class."

He continued by stating the plaintiffs and Judge Hudson failed to discuss or even look at factual variations of law prior to certification.

Casey argued that the National Highway Transportation and Safety Administration should handle the brake issue, instead of the circuit court. Alternatively, Casey discussed that if each state determined the brake linings were defective, then each state could also determine the appropriate remedy.

Before the justices, one of the plaintiffs' attorneys argued that General Motors was asking the court for a rigorous analysis of the issues prior to class certification.

While questioning the plaintiffs' attorney, Associate Justice Donald Corbin gained the attention of the courtroom by announcing that this case is a "lawyer action to make money from." The courtroom full of lawyers laughed when Justice Corbin continued, "not that I'm against lawyers making money."

Despite the chuckling, the plaintiffs' attorney continued his argument, describing how consumers will benefit from the case, as it would be impossible for 4 million consumers to otherwise obtain a remedy for a $100 claim.

The attorney also maintained that there is no controlling authority requiring the circuit court to do a choice-of-law analysis before class certification. Further, he said that he does not believe all state laws will apply to the litigation and Judge Hudson will be able to divide the case into sub-claims or provide the jury with instructions regarding the legal variations.

In rebuttal, GM's attorney concluded that it would be essentially impossible for any product liability case to be certified as a nationwide class action due to the variations among state law on issues such as definition of defective and how warranties are interpreted.

Bryant et al v. General Motors Case No.: CV-2005-51-2

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