Alabama’s Class Action System: Is There Reason for Federal Preemption or Can The State Manage Its Own Judicial System?
Proponents of the so-called Class Action "Fairness" Act (S. 353) and the Interstate Class Action Jurisdiction Act (H.R. 1875) consider Alabama the poster child for out-of-control class actions that illustrates the need for federal class action reform. Although S. 353/H.R. 1875 proponents are correct that the Alabama class action certification process was ripe for reform before 1997, more recent events refute their assertion that reform must occur on the federal level. In fact, instead of demonstrating that federal reform is needed, Alabama’s experience shows that individual states are capable of making reforms without federal intervention.Alabama had long been considered a favorable place for plaintiffs to file class actions, largely due to a process called ex parte, or "drive-by," certification. "Drive-by" certification is the name given to conditional class certifications granted so quickly by a judge that the defendant may not have been given notice of the potential class action. In practice, this meant that classes were being certified without providing defendants an opportunity to present arguments as to why certification should not be granted. Since class certification is an important decision that can affect the outcome of a case, certifying classes without the defendant’s input is prejudicial and needed to stop.
H.R. 1875 and S. 353 proponents continue to point to the "drive-by" certification problem as a rationale for federal legislation. What these proponents do not mention is that Alabama, and any other state in a similar situation, is best suited to reform its own system. For example, Alabama made great strides toward reforming its system through a series of six 1997Alabama Supreme Court decisions. All of these decisions clarify the requirements necessary to certify class actions in Alabama; five of them overturn lower courts’ conditional and ex parte class certification orders and state that "drive-by" certifications are not allowed. For example, the Court in Ex Parte Citicorp Acceptance Company, Inc. stated that:
The practice, apparently adopted by some Alabama judges, of conditionally certifying class actions before service of process and without affording a defendant an opportunity to be heard on the theory that the defendant will later have an opportunity to demonstrate why the class should not have been certified hardly seems consistent with Rule 23, Alabama Rules of Civil Procedure, that the proponent of class certification must carry the burden to prove that the requirements of Rule 23 are met. In fact, the practice seems to stand the rule on its head. 715 So. 2d 199 (1997) (quoting Brewer v. Campo Electronics Appliances & Computers, Inc.).
Alabama’s judiciary is not the only branch of the state government making reforms; the legislature is also busy improving the system. Most important of these efforts is a bill recently signed into law that would allow for interlocutory appeals (appeals before the rest of the case is tried) in all class certification rulings. Because class certification is an important decision that can effect the outcome of cases, most participants in the legal system consider the ability to make an immediate challenge to the certification decision very important.
The Federal Constitution still assumes that states are fully capable of interpreting their own laws and impartially meting out justice; the Alabama examples show this to be true. The assumption that the federal government should intervene in state issues insults the responsiveness and innovation that is often demonstrated at the state level. Foisting a federal solution on the states, such as these class action bills would do, will only subject them to a "one-size-fits-all" fix and is likely to be more harmful than helpful.
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