Archives: North Carolina State Courts

Pending Bill Would Permit Interlocutory Appeals of Class Certification Decisions Directly to NC Supreme Court

View Adam Doerr's Complete Bio at robinsonbradshaw.comGovernor Cooper vetoed House Bill 239 on April 21, rejecting the General Assembly’s effort to reduce the number of judges on the North Carolina Court of Appeals from 15 to 12. The bill has been quite controversial, and four former North Carolina Supreme Court justices have said it would “seriously harm our judicial system.”  Although the bill does not speak in partisan terms, its practical effect would be to prevent Governor Cooper from appointing three (or perhaps two) new judges to the Court of Appeals to replace Republican judges who will reach the mandatory retirement age during his term.1

Mostly overlooked in the public and legislative debate is a major change to appeals in class actions. The bill contains a provision that allows for an appeal of right from “Any trial court’s decision regarding class action certification under G.S. 1A-1, Rule 23.”

As we explained in our analysis of the Supreme Court’s decision in Fisher, North Carolina currently takes an unusual approach to appeals in class actions. An order denying class certification is immediately appealable because the courts have held that it affects a substantial right under N.C. Gen. Stat. 7A-27. An order granting class certification, by contrast, is generally not immediately appealable. Although the appellate courts have sometimes permitted such appeals, including in Fisher, the courts have avoided stating that orders granting class certification affect a substantial right. In Fisher, for example, the Court held that “that the subject matter of this case implicates the public interest to such a degree that invocation of our supervisory authority is appropriate.”

Our firm’s amicus brief for the NC Chamber in Fisher advocated for a ruling that an order granting class certification could affect a substantial right, permitting interlocutory review. The rationale for this approach is that an order granting class certification is often dispositive because defendants face enormous pressure to settle. Indeed, we have not identified a single post-judgment appeal of an order granting class certification against a private party since North Carolina’s enactment of Rule 23 in 1967.

The substantial rights approach, if adopted, would have been similar to the rule in federal courts, where Rule 23(f) provides that a “court of appeals may permit an appeal from an order granting or denying class-action certification.” To obtain review, the party seeking to appeal must file a petition requesting permission to appeal. Such appeals are infrequently granted; published studies estimate that appellate courts grant less than one in four Rule 23(f) petitions.2

This legislation would go further than the federal approach, and further than the law in other states with which we are familiar, in three important ways. First, appeals under this statute would not be discretionary, in contrast to federal Rule 23. All orders would be appealable, regardless of whether the appellate court thought that interlocutory review was appropriate.

Second, appeals would go directly to the North Carolina Supreme Court, bypassing the Court of Appeals. There are currently only two kinds of appeals that go directly to the Supreme Court: a death penalty conviction and decisions from the North Carolina Business Court. N.C. Gen. Stat. 7A-27(a).  And interlocutory appeals from the Business Court are limited to orders that affect a substantial right, effectively determine or discontinue the action, or grant or refuse a new trial.

Third, House Bill 239 would permit an appeal of “[a]ny trial court’s decision regarding class action certification.” Note the contrast with federal Rule 23(f), which permits appeal from an “order granting or denying class-action certification.” A “decision regarding” class action certification could be significantly broader. For example, is an order denying a motion for decertification a “decision regarding class action certification” that would allow an interlocutory appeal? How about a motion to strike class allegations? Even in federal court, with Rule 23(f)’s more limited language and the appellate court’s discretion as a check, there is litigation over the scope of the right to appeal.3 Here, given the breadth of the language and the Supreme Court’s lack of discretion to reject an appeal, there is significant potential for extensive litigation over the scope of the right to appeal, repetitive appeals, and gamesmanship.

House Bill 239 now goes back to the General Assembly. If it overrides Governor Cooper’s veto, as it did with a recent bill applying party labels to elections of District and Superior Court judges, major changes are coming to class action litigation in North Carolina state courts.

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1 One of the Republican judges, Judge McCollough, announced his retirement on April 24, just over a month early. If he had waited until reaching his mandatory retirement on May 28, the legislature might have overridden the Governor’s veto and the law would have prevented appointment of a successor. As Judge McCullough told the Raleigh News & Observer, he did not want his legacy to be an “impairment to the appeals court” by reducing its size. Governor Cooper has appointed Charlotte attorney John Arrowwood to fill the seat.

2 We have found that existing research misses a significant number of 23(f) petitions in the Fourth Circuit. These petitions are difficult to research, as the orders are generally not published and require significant effort in PACER to uncover. We plan to share the results of our own research on this issue in a future post.

3 Compare In re Complaint of Ingram Barge Co., 517 F.3d 246, 247 (5th Cir. 2008) (refusing to hear a 23(f) petition from an order granting a motion to strike class action allegations because it was not an order “granting or denying” certification) with In re Bemis Co., Inc., 279 F.3d 419, 421 (7th Cir. 2002) (accepting review of an order granting a motion to strike class allegations because it was the “functional equivalent of denying a motion to certify a case as a class action, a denial that Rule 23(f) makes appealable (at our discretion).”).

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Can a Class Action Proceed when the Named Plaintiff’s Claim Becomes Moot? A Recent View from the North Carolina Business Court

View Mark Hiller’s Complete Bio at robinsonbradshaw.comIn this post we talk about two of our favorite things (relatively speaking): class actions and mootness.  We last looked at these issues when covering the U.S. Supreme Court’s decision in Campbell-Ewald Company v. Gomez, 136 S. Ct. 663 (2016).  There, the Court rejected the defendant’s attempt to “pick off” the named plaintiff in a class action case.  The defendant had made a Rule 68 offer to settle the case for the full value of the plaintiff’s claim.  The plaintiff declined, but the defendant argued that its offer nonetheless mooted the claim.  The Supreme Court rejected that argument, holding that an unaccepted Rule 68 offer does not moot a claim—at least if the defendant does not deposit the Rule 68 money with the court.

But what if the named plaintiff’s claim does become moot?  Can the case stay alive based on the claims of the class?  The Supreme Court has been wrestling with that question for decades, and the answer turns in large part on timing—when did the named plaintiff’s claim become moot?  If it became moot after the class was certified, then the class action is not rendered moot because, at that point, the class has acquired a legal status independent of the plaintiff’s.  See Sosna v. Iowa, 419 U.S. 393 (1975).  The same rule applies if the named plaintiff’s claim became moot after the trial court denied class certification.  If the denial is later reversed, the reversal will relate back to the time of the trial court’s erroneous certification decision.  See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980).  In both of these situations, the named plaintiff had a live claim at the time the trial court ruled on certification.

That leaves open a third scenario: a named plaintiff whose claim becomes moot before the trial court makes any certification ruling.  What then?  Chief Judge Gale of the North Carolina Business Court faced this question in the recent case of Chambers v. Moses H. Cone Memorial Hospital.  To simplify the facts and procedural history, the plaintiff received emergency treatment at a hospital and then objected to the amount of the bill he received.  The plaintiff claimed that the hospital charged uninsured patients, like himself, more for emergency services than the hospital charged its insured patients.  He brought a class action complaint on behalf of himself and other uninsured patients who received emergency services at the hospital.  His initial complaint alleged common law claims and sought damages.  But he later amended the complaint to seek only a declaratory judgment that the hospital may collect only “reasonable payments” for its emergency services, rather than the “regular rates” the hospital charged in its form contract.

Judge Gale first held that the plaintiff’s declaratory judgment claim was moot because the hospital was not seeking to recover the unpaid amount of the plaintiff’s bill.  (The hospital had been seeking to do so earlier in the case, but the hospital dismissed its counterclaims with prejudice after the plaintiff dropped his damages claims.)

That left the more difficult question: Even though the plaintiff no longer had a live claim, could the case continue based on the claim of the putative class?  Judge Gale began by noting that the case did not come within the holdings of Sosna or Geraghty because the court had not ruled on certification at the time the plaintiff’s claim became moot.  (It appears the plaintiff had not yet filed a certification motion.)

Judge Gale then addressed whether the putative class claim could proceed based on an exception to the mootness doctrine for claims that are “so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.”  Judge Gale explained that the classic example of an “inherently transitory” claim was one that inevitably becomes moot with the passage of time, such as a challenge to pretrial detention.  In those cases, dismissing a case as moot would mean that no plaintiff could challenge the defendant’s conduct, because any plaintiff’s individual claim would become moot before the case could be fully litigated.  Judge Gale said that the plaintiff’s claim—challenging the hospital’s emergency-services rates for uninsured patients—doesn’t fit into that passage-of-time category for “inherently transitory” claims.

But that left another possibility—one that circles us back to Campbell-Ewald: Can a claim be “inherently transitory” when the claim becomes moot, not because it is time-sensitive, but because the defendant has “picked off” the claim by offering to pay its full amount before the trial court makes a decision on certification?  Judge Gale noted that the Ninth Circuit has applied the “inherently transitory” exception in this scenario (as have several other federal circuit courts).  But ultimately, Judge Gale did not have to decide whether to follow this interpretation of the “inherently transitory” exception, because he concluded that there was no evidence showing that the hospital tried to pick off the plaintiff’s claim.  To the contrary, Judge Gale stated, the plaintiff’s claim became moot only when the plaintiff decided to dismiss his claims seeking damages.  Judge Gale agreed with the hospital that, had the plaintiff maintained those claims, then the hospital’s dismissal of its counterclaims “would not have mooted [plaintiff’s] declaratory claim.”

Conclusions

So, what to take away from all this?

First, class action law is complicated, especially when mootness is thrown into the mix.

Second, the law is pretty clear that a class action is not rendered moot when the named plaintiff has a live claim at the time the trial court decides whether to certify the class.

Third, the law is less clear whether the class action is rendered moot when the named plaintiff’s claim becomes moot before the trial court makes a certification decision.  In that scenario, the issues will likely focus on whether the case fits into exceptions to the mootness doctrine, such as the “inherently transitory” exception discussed above.

Fourth, there will likely be continued developments in the law as to whether a defendant’s effort to pick off a named plaintiff succeeds in mooting the plaintiff’s claim, and if so, whether that effort satisfies the “inherently transitory” exception such that a live case or controversy still exists.

We’ll keep you updated as the law develops.

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NC Supreme Court Affirms Certification of 800,000 Member Class (Fisher Part 2)

View Adam Doerr's Complete Bio at robinsonbradshaw.com
As we explained in Part 1 of our analysis of Fisher v. Flue-Cured Tobacco Cooperative Stabilization Corporation, the North Carolina Supreme Court recently exercised jurisdiction over an interlocutory appeal and affirmed the certification of a class of hundreds of thousands of current and former tobacco farmers. In the first part, we discussed the Court’s jurisdictional analysis and North Carolina’s unique approach to interlocutory appeals of class certification orders. In this post, we discuss the Court’s substantive analysis of the class certification issues.

The Cooperative’s first challenge to class certification involved the argument that plaintiffs’ claims were derivative. The Cooperative argued that, like a North Carolina corporation, it was entitled to receive a written demand from members to take suitable action before filing suit. The Court declined to decide this question, holding that the derivative demand requirement in section 55-7-42 of the General Statues did not address class certification. The Court also noted that Rule 23 and the Court’s precedent did not require the trial court to consider whether class claims are derivative. The Court explicitly stated that it “express[ed] no opinion” on the derivative issues and noted that the Cooperative could make this argument via a motion to dismiss. Under the Court’s analysis, derivative and class certification issues are distinct, at least under the somewhat unique circumstances of this case.

The Court then turned to the core Rule 23 issues of commonality and manageability. Citing Crow v. Citicorp Acceptance Co., 319 N.C. 274 (1987), which apparently retains its status as one of the leading North Carolina decisions on Rule 23, the Court noted the requirement that there be no conflict of interest between the class representative and the unnamed class members. The Cooperative had argued that one of the named Plaintiffs was a member of the Cooperative’s board of directors, a conflict of interest that should have precluded class certification. The Court disagreed, noting that the plaintiffs had not alleged that individual members of the board had engaged in misconduct, and that none of the directors was named as an individual defendant. Accordingly, the Court held, the trial court did not abuse its discretion in certifying the class.

Interestingly, the Court implies that it would have affirmed the trial court had it reached the opposite conclusion:

Although a trial court might review a class representative’s other activities and find that these activities create a conflict of interest with class members, here the trial court exercised its discretion and determined that Renegar is capable of representing the interests of class members.

The fact that a hypothetical trial court might have found that this conflict of interest prevented certification serves as an important reminder of the demanding standard of review for class certification decisions. This statement also illustrates how opinions like Fisher have important limitations as precedent at the trial level. Litigants in future cases won’t be able to cite Fisher as stating a general rule that directors can serve as class representatives in a case challenging decisions in which they participated. Rather, future plaintiffs will only be able to say that, under the circumstances of this case, it was not an abuse of discretion to certify a class despite the fact that a director was named as a class representative. Of course, their opponents would be equally justified in noting, based on the language quoted above, that a denial of certification on this basis would probably have been affirmed in similar fashion.

Next, the Court turned to the Cooperative’s claims that other conflicts of interest among members of the class precluded certification. These alleged conflicts included that (1) some class members still participated in the cooperative and others did not, (2) some class members were involved in a federal case where they claimed their interests were not being represented in the Fisher action, and (3) certain class members who sold tobacco during years where the Cooperative had positive revenues had claims that other class members lacked. The Court did not engage these questions in any detail, and it did not address the federal lawsuit at all. Instead, it emphasized that the “trial court may be in the best position to determine whether any conflicts among class members warrant denial of class certification,” and that the trial court had “considered defendant’s arguments and rejected them.” Again, the abuse of discretion standard played a central role in the Court’s analysis.

The Court then turned questions of commonality and manageability. Citing its 2014 decision in Beroth Oil Co. v. NC DOT, 367 N.C. 333 (2014), the Court noted that Beroth involved a “discrete fact-specific inquiry” for members of the class, as we discussed in our analysis of the case. Here, the Court noted, the “trial court identified many issues of law and fact that are common to the class.” And, as with its discussion of conflicts of interest, the Court implied that it may well have affirmed the opposite conclusion, noting that “the trial court exercised its broad discretion to allow, rather than deny, class certification.”

Finally, the Court affirmed the trial court’s manageability finding, noting the “extremely large number of similarly situated class members and the impracticality of requiring them to protect their rights through filing hundreds of thousands of individual lawsuits.” The Court did not address whether the individual class members would actually have pursued such claims, given the fact that many of them may not have farmed tobacco for decades or had a claim to any reserves, nor did it address the Cooperative’s argument that the size of the class and lengthy class period would make the class action unmanageable. Once again, it deferred to the trial court, noting that it could not conclude that the trial court abused its discretion by ruling that a class action was superior to individual litigation.

Although Fisher generally follows existing precedent in Crow and Beroth, it provides an important demonstration of this Supreme Court’s willingness to defer to trial courts on class certification. We’ll be watching to see if that holds in future cases as the Court changes, and we’ll also monitor whether North Carolina appellate courts will begin to take a more permissive approach towards interlocutory review of orders granting class certification more generally. As for Fisher itself, the case has been remanded to the trial court for further proceedings, although it’s unclear where that will be, given that Judge Jolly was handling the case as a Rule 2.1 judge and has since retired. We’ll continue to follow this case, which offers the potential to raise many interesting issues as it proceeds, especially in the areas of class notice and administration.

(John Wester of our firm served as amicus counsel to the NC Chamber in Fisher.)

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NC Supreme Court Takes Jurisdiction over Order Granting Certification (Fisher Part 1)

View Adam Doerr's Complete Bio at robinsonbradshaw.com In its last batch of opinions for 2016, the North Carolina Supreme Court affirmed the certification of a class of more than 800,000 tobacco farmers in Fisher v. Flue-Cured Tobacco Cooperative Stabilization Corporation. Because Fisher raises a number of interesting class certification issues, and because the North Carolina Supreme Court rarely issues opinions addressing North Carolina Rule 23, we are covering the decision in two parts. In this installment, we provide the background of the case and address the Court’s decision to accept jurisdiction over this interlocutory appeal. In the second installment, we’ll address the Court’s approach to commonality and manageability.

The Supreme Court’s decision in Fisher is the latest chapter in litigation that began more than 11 years ago, when a group of tobacco farmers filed suit against the Flue-Cured Tobacco Cooperative, an agricultural cooperative formed in 1946 to help tobacco farmers market their crop. The plaintiffs alleged that when federal tobacco price support ended in 2004, the Cooperative improperly removed hundreds of thousands of members from its membership rolls. The Cooperative contended that many of these members had not grown tobacco for decades, and that it was simply updating its membership to accurately reflect the much smaller number of active tobacco farmers. Although the plaintiffs asserted a number of different claims, the primary dispute was over the Cooperative’s reserves, which totaled several hundred million dollars.

Fisher is an unusual case in many respects. The litigation itself is quite old—we are not aware of any other active cases with an ’05 case number—and the underlying facts are far older. The Cooperative was founded in 1946, meaning that the certified class would include farmers (or their heirs) who grew tobacco just after the end of the Second World War. The dispute also involved certificates issued for crop years from 1967 to 1973 and federal changes to tobacco price regulation from 1982. The class was also enormous, encompassing over 800,000 members.

The procedure has also been unusual, both at the trial and appellate level. Judge Jolly, formerly the Chief Judge of the North Carolina Business Court, certified the class in 2014, as we reported at the time. The case was not a Business Court case—it was handled by Judge Jolly under Rule 2.1—and the appeal predates direct appeals from the Business Court to the Supreme Court. But in October 2014, the Supreme Court took the unusual step of removing the case from the Court of Appeals on its own motion under Appellate Rule 15(e)(2).

The first question presented involved appellate jurisdiction over the order granting class certification. In federal court, either party can ask the appellate court to appeal a class certification order under Federal Rule of Civil Procedure 23(f)—regardless of whether the order granted or denied class certification. Most other states also permit some interlocutory review of class certification orders. But North Carolina appears to be unique in holding that orders denying class certification are automatically subject to interlocutory appeal, while orders granting class certification generally are not. See, e.g., Frost v. Mazda Motor of America, Inc., 353 N.C. 188, 193 (2000).

John Wester of our firm, representing the NC Chamber as amicus curiae, advocated for a ruling that an order granting class certification could affect a substantial right, permitting interlocutory review. The Chamber’s brief noted that an order granting class certification often put such pressure on a defendant to settle that it effectively determines the outcome of the case. In fact, the Chamber stated that it appeared that the North Carolina Supreme Court had never decided a post-judgment appeal of an order certifying a class action against a private party. The Chamber also argued that permitting interlocutory review of orders granting class certification promoted the development of the law and was a more efficient use of judicial resources than requiring a defendant to proceed to trial before obtaining review.

The Court did not expressly hold that an order granting class certification affects a substantial right, nor did it hold that an order granting class certification could not be the subject of interlocutory review. Rather, it stated that, given the size of the class, the “subject matter of this case implicates the public interest to such a degree that invocation of our supervisory authority is appropriate” and proceeded to review the certification order “notwithstanding that the appeal is interlocutory and ordinarily would not be immediately appealable.” It remains to be seen how this exception to the prohibition against interlocutory appeals will apply in future cases. It is also unclear whether this exception will apply in the North Carolina Court of Appeals, which lacks the Supreme Court’s “supervisory authority” but has previously accepted interlocutory review of an order granting class certification on substantial rights grounds.

For the time being, counsel seeking to appeal from an order granting certification would be advised to petition for certiorari in addition to seeking interlocutory review on substantial rights grounds, as the Cooperative did in this case.

(John Wester of our firm served as amicus counsel to the NC Chamber in Fisher.)

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Merger Litigation Continues in North Carolina

View Adam Doerr's Complete Bio at robinsonbradshaw.comLast month, we previewed the challenge to a settlement of litigation involving the Reynolds-Lorillard merger. The Business Court has helpfully made available the transcript of the hearing on approval of the settlement, which took place on February 12. At the hearing, the Court made clear that it was quite familiar with recent changes in merger litigation in Delaware, including the Trulia case, and stated that it was reviewing the settlement under “strict scrutiny,” not a “rubber stamp standard.” Notwithstanding a shareholder objection supported by Professor Sean Griffith, a Fordham professor who has been involved in the recent Delaware cases, the Court approved the settlement.

During the hearing, the Court also raised an interesting issue regarding the risk that plaintiffs’ counsel face in bringing merger cases in North Carolina. As we have previously discussed,  North Carolina does not recognize the common benefit doctrine, meaning that plaintiffs’ counsel in a class action can only receive attorneys’ fees by obtaining a monetary award for the class or entering into a settlement agreement. The Court indicated that this distinction from Delaware law might create a higher contingent risk in bringing such cases in North Carolina. The Court did not rely on this point because the negotiated fee in Reynolds was equivalent to an hourly rate of $325, well within the range the Court has previously approved, but it will be interesting to see whether the Business Court takes an approach similar to the Delaware Chancery Court, which appears inclined to award significant fees for meritorious claims while cutting down or eliminating fees for routine merger challenges.

Merger cases continue to be filed in North Carolina. Just last week, a shareholder sued PowerSecure, an electric and utility technology company incorporated in Delaware and headquartered in Wake Forest, over its proposed merger with Southern Company. See Michael Morris v. PowerSecure International Inc. et al. We will continue to keep you posted on new developments in this interesting and rapidly changing area.

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