On November 5, 2013, BakerHostetler's class action litigation team secured a major victory for Ohio class action defendants when the Supreme Court of Ohio adopted the class certification principles announced in the United States Supreme Court's decisions in Wal-Mart v. Dukes and Comcast v. Behrend. In Cullen v. State Farm Mutual Automobile Ins. Co., __ Ohio St.3d __, 2013-Ohio-4733, the Ohio high court held that courts must base class-certification decisions on evidence, not merely on a plaintiff's allegations, and established that the same standards that apply to evaluating the propriety of class certification in federal court apply under Ohio rules as well. This ruling amplifies another recent BakerHostetler victory in that Court in Stammco v. United Telephone Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-309. Together, Cullen and Stammco align Ohio law with the more-rigorous federal standards for class certification and mark a significant victory for class defendants throughout the state.
In Cullen, the Ohio Supreme Court reversed the trial and appellate courts' decisions to certify a class, holding that both lower courts erred by failing to apply a "rigorous analysis" of the Civil Rule 23 requirements. As the opinion clarified, a "rigorous analysis" must consider the evidence relevant to the Rule 23 factors even if that evidence also bears upon the underlying merits. Accordingly, the Court held that the trial and appellate courts erred by assuming that the plaintiff's theory of the case was accurate, rather than examining the relevant evidence.
Further, the Court rejected the plaintiff's proposed Rule 23(B)(2), injunctive-relief class, for two reasons: first, because monetary damages were not merely incidental to the declaratory relief sought; and second, because prospective relief would not benefit all class members. The Court thus held that courts cannot certify Rule 23(B)(2) classes seeking declaratory relief intended merely to lay a foundation for subsequent individual determinations of liability.
Additionally, the Cullen Court ratcheted up the standard of proof required to certify a class. While it did not expressly require a Daubert analysis of expert opinions offered to support class certification, the Court implicitly approved of and performed such an analysis in rejecting Cullen's experts' opinions. The plaintiff had proffered expert testimony in support of its argument that there was common proof that windshield repairs failed to return all windshields to pre-loss condition. The Court held that Cullen's experts "asserted that the repair could not restore a windshield to pre-loss condition, but neither had sufficient evidentiary foundation for those opinions." Id. at ¶ 47. And without evidentiary foundation, those opinions could not carry the plaintiffs' burden of showing that common issues predominated over individualized issues.
The Ohio Supreme Court's decision in Cullen amplifies the Stammco decision rendered earlier this year. Stammco held that "at the certification stage in a class-action lawsuit, a trial court must undertake a rigorous analysis, which may include probing of the merits of the plaintiff's claim, but only for the purpose of determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23." 136 Ohio St.3d 231, syllabus. Now that Ohio's Rule 23 is in line with prevailing interpretations of Federal Rule 23, class certification decisions in Ohio courts should be based upon a rigorous analysis of the evidence that is in the record -- and not just upon the plaintiff's allegations or theories.
