9.3Class Action

A.Generally

One or more members of a class may sue or be sued as representative parties if all of the following exist:

•Numerosity – “the class is so numerous that joinder of all members is impracticable;” MCR 3.501(A)(1).

•Commonality – “there are questions of law or fact common to the members of the class that predominate over questions affecting only individual members;” MCR 3.501(A)(1). “However, it is not sufficient to merely raise common questions. The common contention must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Breiner v State of Mich, ___ Mich App ___, ___ (2022) (cleaned up). “[C]ommonality requires the plaintiff to demonstrate that the class members have suffered the same injury.”Id. at ___ (quotation marks and citation omitted). “This factor does not require all issues in the litigation to be common, but merely requires the common issue or issues to predominate over those that require individualized proof.” Id. at ___.

•Typicality – “the claims or defenses of the representative parties are typical of the claims or defenses of the class;” MCR 3.501(A)(1). “Typicality is concerned with whether the claims of the named representatives have the same essential characteristics of the class at large” and “requires that the class representatives share a common core of allegations with the class as a whole.” Breiner, ___ Mich App at ___ (quotation marks and citation omitted).

•Adequacy – “the representative parties will fairly and adequately assert and protect the interests of the class;” MCR 3.501(A)(1).

•Superiority – “the maintenance of the action will be superior to other available methods of adjudication in promoting the convenient administration of justice.” MCR 3.501(A)(1). See MCR 3.501(A)(2) for a non-exclusive list of factors a court must consider when determining whether superiority exists.

“[A] case cannot proceed as a class action when it satisfies only some, or even most, of [the] factors [in MCR 3.501(A)(1)].” A&M Supply Co v Microsoft Corp, 252 Mich App 580, 597-602 (2002).

A trial court may not accept “a party’s bare assertion that the prerequisites [listed in MCR 3.501(A)(1)] have been met.” Henry v Dow Chem Co, 484 Mich 483, 500 (2009). Rather, the party seeking class certification bears the burden of providing enough information to the court to establish that each prerequisite has in fact been met. Id. at 502. “A court may base its decision on the pleadings alone only if the pleadings set forth sufficient information to satisfy the court that each prerequisite is in fact met.” Id. For example, pleadings alone may be sufficient “where the facts necessary to support [a particular] finding are uncontested or admitted by the opposing party.” Id. at 502-503. If the court must look beyond the pleadings, the Michigan Supreme Court cautions that “courts must not abandon the well-accepted prohibition against assessing the merits of a party’s underlying claims at this early stage in the proceedings.” Id. at 503.

“[P]laintiffs seeking class certification must provide objective criteria by which class membership is to be determined”; “otherwise individuals would simply be able to decide for themselves whether they wish to be included in the class[.]” Mich Ass’n of Chiropractors v Blue Care Network of Mich, Inc, 300 Mich App 577, 590 (2013). “[W]hen examining a proposed class for certification, a court must be able to resolve the question whether class members are included or excluded from the class by reference to objective criteria.” Id. at 595.

B.Timing and Procedure for Certification

Subject to the parties’ stipulation or good cause to extend the time frame, MCR 3.501(B)(1)(a) requires that a motion for class certification be made within 91 days of filing a complaint having class action allegations. However, the court rule “does not forbid subsequent motions for certification or mandate any particular timing requirements for bringing them.” Hill v City of Warren, 276 Mich App 299, 306 (2007). In Hill, the defendants argued that MCR 3.501(B)(1)(a) precluded the plaintiffs from filing their renewed motion for class certification because the motion was not made within 91 days of the Supreme Court’s remand order. Hill, 276 Mich App at 305. Having concluded that the court rule’s 91-day limit applied only to the parties’ initial motion for certification, the Court of Appeals found “no clear error in the trial court’s finding that class certification [was] appropriate.” Id. at 306, 317.

MCR 3.501(B)(1) “is properly interpreted as meaning that ‘[w]ithin 91 days after the filing of [any] complaint that includes class action allegations, the plaintiff must move for certification that the action may be maintained as a class action.’” Badeen v PAR, Inc, 300 Mich App 430, 441 (2013), vacated in part on other grounds 496 Mich 75 (2014) (alterations in original).¹ Accordingly, a motion for class certification may be filed within 91 days of an amended complaint. Badeen, 300 Mich App at 441-442.

The 91-day time limit in MCR 3.501(B)(1)(a) “applies to a specific plaintiff, and . . . should not and cannot be generalized to apply to unnamed putative class members.” Hanton v Hantz Fin Servs, Inc, 306 Mich App 654, 662-663 (2014). Accordingly, an order denying a named plaintiff’s “request to extend the time for filing a motion for class certification because [that plaintiff] did not meet the time requirements of MCR 3.501(B)” is not binding on an unnamed putative class member in that case who files a class action following the dismissal of the named plaintiff’s case. Hanton, 306 Mich App at 659-660, 666.

“If the plaintiff fails to file a certification motion within the time allowed by [MCR 3.501(B)(1)], the defendant may file a notice of the failure. On the filing of such a notice, the class action allegations are deemed stricken, and the action continues by or against the named parties alone. The class action allegations may be reinstated only if the plaintiff shows that the failure was due to excusable neglect.” MCR 3.501(B)(2).

“Except on motion for good cause, the court shall not proceed with consideration of the motion to certify until service of the summons and complaint on all named defendants or until the expiration of any unserved summons under MCR 2.102(D).” MCR 3.501(B)(3)(a).

In ruling on a motion for certification, the court may:

•certify the class;

•deny the motion; or

•postpone its ruling pending discovery or other preliminary procedures. MCR 3.501(B)(3)(b).

The court must set forth a description of the class if it issues an order certifying a class action. MCR 3.501(B)(3)(c). The court may also order that “the action be maintained as a class action limited to particular issues or forms of relief,” or that “a proposed class be divided into separate classes with each treated as a class for purposes of certifying, denying certification, or revoking certification.” MCR 3.501(B)(3)(d)(i)-(ii). The action continues by or against the named parties alone if certification is denied. MCR 3.105(B)(3)(e).

“An action for a penalty or minimum amount of recovery without regard to actual damages imposed or authorized by statute may not be maintained as a class action unless the statute specifically authorizes its recovery in a class action.” MCR 3.501(A)(5).² Additionally, “[a]n action that seeks to recover money from individual members of a defendant class may not be maintained as a class action.” MCR 3.501(I)(1).

Subsequent class actions are not precluded where the trial court denies a motion for class certification on the basis of procedural deficiencies without ruling on the merits of the class certification. Hanton, 306 Mich App at 665 (stating that “[p]rior class actions that have been uncertified for a reason that was not substantive should not preclude subsequent actions”).

C.Discovery

“Representative parties and intervenors are subject to discovery in the same manner as parties in other civil actions. Other class members are subject to discovery in the same manner as persons who are not parties, and may be required to submit to discovery procedures applicable to parties to the extent ordered by the court.” MCR 3.501(G).³

D.Dismissal or Compromise

“An action certified as a class action may not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to the class in such manner as the court directs.” MCR 3.501(E).

E.Judgment

A judgment involving a class action must specify the parties bound. MCR 3.501(D)(1). If judgment is entered before a class is certified, the judgment only binds the named parties. MCR 3.501(D)(2). A judgment entered after certification binds all members of the class who have not submitted an election to be excluded, or as otherwise directed by the court. MCR 3.501(D)(5).

A motion for judgment or partial judgment pursuant to MCR 2.116 may be brought and determined “before the decision on the question of class certification.” MCR 3.501(D)(3).⁴ “A judgment entered before certification in favor of a named party does not preclude that party from representing the class in the action if that is otherwise appropriate.” Id.

“Nothing in [MCR 3.501] is intended to limit the parties to a class action from proposing a settlement, or the court from entering a judgment approving a settlement, that does not create Residual Funds.” MCR 3.501(D)(6)(b). “Any judgment approving a proposed settlement of a class action certified under [MCR 3.501] that may result in the existence of Residual Funds shall provide for the disbursement of any such Residual Funds upon the stipulation of the parties and subject to the approval of the court. In matters where the claims process has been exhausted and Residual Funds remain, unless the judgment provides otherwise, the Residual Funds shall be disbursed to the Michigan State Bar Foundation to support activities and programs that promote access to the civil justice system for low income residents of Michigan.” MCR 3.501(D)(6)(c).

F.Standard of Review

In determining whether to certify a proposed class, a trial court may make both factual findings and discretionary determinations. Henry v Dow Chem Co, 484 Mich 483, 495-496 (2009). A trial court’s findings of fact are reviewed for clear error, and its discretionary decisions are reviewed for an abuse of discretion. Id. at 496.