A spate of recent decisions from the Supreme Court of Appeals of West Virginia illustrates that while putative class action plaintiffs must strictly comply with the requirements for class certification and courts’ certification decisions must reflect a thorough analysis, the bar for certification is not impossible to surmount. As we reported in an alert in December 2020, the Supreme Court of Appeals ruled in State ex rel. Surniak Holdings of WV, LLC v. Bedell (Surniak I) that a thorough analysis of the predominance and superiority requirements is mandatory when certifying a class action. Although Surniak I signaled a shift to a more conservative view of Rule 23, recent decisions from the Supreme Court of Appeals have affirmed class certification decisions, ruling that circuit courts are sufficiently analyzing certification requirements.
Rule 23 Requirements
In West Virginia, a would-be class action plaintiff must comply with West Virginia Rule of Civil Procedure 23. Rule 23(a) contains four threshold requirements: numerosity, or that the class be “so numerous that joinder of all members is impracticable”; commonality, or the existence of legal or factual questions common to the class; typicality, or that the claims of the named plaintiff are typical of the claims of the other class members; and adequacy, or that the named plaintiff “will fairly and adequately protect the interests of the class.” In addition to these prerequisites, a plaintiff must satisfy one of the prongs of Rule 23(b). Usually, a plaintiff seeks to establish predominance—that questions of law or fact common to the class members predominate over questions affecting individual class members—and superiority, that the class action mechanism is superior to other methods of adjudicating the dispute.
Surniak I: A “Thorough Analysis” Is Required
Surniak I stemmed from an October 2017 warehouse fire. One of the affected residents filed suit against the property owner and sought to form a class composed of all residents and businesses within a certain radius of the warehouse. After the circuit court granted class certification, the defendant sought a writ of prohibition. On appeal, the Supreme Court of Appeals granted the writ and vacated the class-certification order, ruling that the circuit court had failed to conduct a thorough analysis of Rule 23’s predominance and superiority requirements.
Since Surniak I, the Supreme Court of Appeals has explained that the proper remedy for an insufficient class-certification order is for the circuit court to take another shot at a certification order. In State ex rel. Dodrill Heating and Cooling LLC v. Akers, for example, the Supreme Court of Appeals granted a writ of prohibition and, relying on Surniak I, ruled that the circuit court’s analysis of Rule 23’s predominance and superiority requirements was insufficient. The Supreme Court of Appeals, however, rejected the defendant’s request to deny class certification, instead directing the circuit court to undertake a more searching review.
“Thorough Analysis” Is Not an Impossible Standard
As it turns out, the second time was the charm for the putative class action plaintiffs in Surniak. On remand, the circuit court adopted the plaintiffs’ class definition and certified the class. The defendant again sought a writ and again argued that the circuit court’s analysis was insufficient. In the recently issued Surniak II decision, the Supreme Court of Appeals determined that the circuit court’s second order contained an adequate analysis of predominance and superiority. The Supreme Court of Appeals recognized that the order was centered on a geographic area, not on the element of injury, and that all properties in this area were exposed to sufficient levels of smoke to cause damage. Accordingly, the Supreme Court of Appeals determined that there is one common question that defines the class, satisfying the predominance requirement. The Supreme Court of Appeals thus denied the defendant’s second petition for writ of prohibition.
In another decision from the spring 2022 term, State ex rel. West Virginia University Hospitals, Inc. v. Gaujot (Gaujot III), the Supreme Court of Appeals considered, for the third time, the circuit court’s attempt to certify a class of patients who claimed that the hospital’s fees for producing copies of medical records violated a statute governing patients’ cost for the records. The Supreme Court of Appeals found that the circuit court’s findings of commonality and ascertainability were sufficient and refused to fault the circuit court for failing to revisit predominance, which was not required by the Supreme Court of Appeals’ previous decision. The Supreme Court of Appeals expressed considerable frustration with the repeated proceedings in prohibition, which had delayed the case, and instructed counsel to revisit the class definition in the circuit court rather than by “encouraging [the Supreme Court of Appeals] to micromanage the litigation below.”
It bears emphasizing that the Supreme Court of Appeals did not adopt any new syllabus points in Surniak II or Gaujot III. Rather than a change to substantive law, these cases reflect the court’s unwillingness to grant the extraordinary remedy of prohibition for ever-improving class-certification orders from the circuit courts.
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