dissenting.
I respectfully dissent. In my view, the majority opinion fails to abide by two of our most strongly held principles of class-certification review: an abuse-of-discretion standard of review that is highly deferential to the circuit court’s order, and a refusal to delve into the merits of the underlying claims. The result is a higher burden of proof than we have previously required in demonstrating predominance of common issues.
The majority acknowledges that, in reviewing a certification decision, it is “totally immaterial whether the petition will succeed on the merits or even if it states a cause of action.” Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004). Yet, the majority implies that this case is unsuitable for class treatment because Appellees have failed to prove that Union Pacific acted in conformity with its stated plan for settling claims in every case. In fact, the majority makes a distinction between demonstrating the existence of a plan or scheme and proving that the plan was adhered to in every instance, suggesting Imthat the former has been done while the latter has not. I submit that Appellees are not required to prove, at this stage, that similar representations were made in every settlement negotiation. They have demonstrated, through the deposition testimony of Herbert Stuart, former director of Union Pacific’s claims department, that Union Pacific had developed a “consistent pattern and practice” for settling claims. This is sufficient for class certification.
More particularly, Stuart testified that the railroad had a pattern of meeting with potential claimants, usually within twenty-four to forty-eight hours of an accident, with the goal of resolving claims while the potential claimants were “still unrepresented” by legal counsel. In the negotiations, claims representatives attempted to establish relationships of trust and confidence with potential claimants and prepared settlement documents to be filed in court. Stuart further testified that the railroad had a consistent pattern and practice of not sharing information gathered in investigations unless specifically requested by the claimant. According to Stuart, the goal was to save money “in the area of the additional expenses, and the claim rep time, and the risk avoidance.” Other evidence in the record establishes that claims representatives routinely discouraged potential claimants from employing legal counsel. Specifically, the proposed class representatives testified that they were told that “a lawyer wouldn’t do you any good” and that “if you get a lawyer, you probably wouldn’t ... get a certain amount ... because most of it would go to the lawyer’s fee.” Additionally, questionnaires completed by potential class members for purposes of the [¡^lawsuit showed that a number of potential claimants were told that they could not hire an attorney, that “it wouldn’t do any good” to hire an attorney, and that an attorney would “get all the money.” Some potential claimants believed that the Union Pacific claims representative with whom they negotiated was acting as their attorney. According to Stuart’s deposition testimony, claims representatives clarified that they were not lawyers only when asked.
We have previously affirmed findings of predominance when the underlying allegations concerned an overall scheme and course of conduct. See, e.g., SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997). In the SEECO case, plaintiffs asserted various claims rooted in an alleged failure to enforce the provisions of a gas-sales contract and sought damages on several theories, including fraud, breach of contract, and civil conspiracy. Id. at 404-06, 954 S.W.2d at 235-36. This court affirmed the trial court’s grant of class certification, noting that the issue of a fraudulent scheme was “central” and “a common starting point for all class members.” Id. at 412, 954 S.W.2d at 240. We held that “[t]he overarching issue which must be the starting point in the resolution of this matter relates to the existence of the alleged scheme.” Id. at 414, 954 S.W.2d at 241 (emphasis added). The same may be said of the instant case. The overarching issue, which predominates over all others, is Ap-pellees’ allegation that Union Pacific’s pattern and practice of settling claims amounted to the unauthorized practice of law and an ADTPA violation. In other words, |¾4⅛ is the existence of the alleged scheme that is the starting point in the resolution of Appellees’ claims against Union Pacific. Thus, the case involves “preliminary, common issues of liability and wrongdoing that affect all class members,” and the circuit court may subsequently resolve individual issues in bifurcated proceedings. Gen. Motors Corp. v. Bryant, 374 Ark. 38, 44, 285 S.W.3d 634, 639 (2008).
The majority also seems to suggest that class treatment is inappropriate because the question of whether Union Pacific engaged in uniform settlement practices is disputed. The opinion points to our decisions in Lenders Title Co. v. Chandler, 358 Ark. 66, 78, 186 S.W.3d 695, 702 (2004), and other similar cases, wherein the defendant’s practice of charging a document preparation fee was characterized as “admitted.” In my mind, this is a distinction without a difference. Like the defendants in Lenders Title, American Abstract & Title Co. v. Rice, supra, and Asbury Automotive Group, Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006), Union Pacific has effectively admitted to a common plan. It only disputes the allegation that its claims representatives consistently adhered to this plan, and the majority seems to prematurely decide the merits of this dispute. To require Appellees at this stage to meet proof with proof and disprove Union Pacific’s assertion that it did not consistently adhere to a plan is to engage in a premature merits determination. We have repeatedly refused to impose such a burden at this early stage.
12sThe majority opinion quotes from our decision in Baker v. Wyeth-Ayerst Laboratories Division, 338 Ark. 242, 247, 992 S.W.2d 797, 800 (1999), in holding that “no one set of operative facts” establishes Union Pacific’s liability. Interestingly, that quote originated from a discussion in a Sixth Circuit opinion addressing the complexity of individual issues presented by toxic-tort and products-liability cases as opposed to mass-accident cases, where injuries are caused by a single catastrophic event occurring at one time and place. See Sterling v. Velsicol Chem. Coup., 855 F.2d 1188 (6th Cir.1988). The Sixth Circuit held in Sterling that, “[i]n complex, mass, toxic tort accidents, where no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and individual issues outnumber common issues, the district court should properly question the appropriateness of a class action for resolving the controversy.” Id. at 1197. These types of cases were distinguished from mass-accident cases, where “the cause of the disaster is a single course of conduct which is identical for each of the plaintiffs.” Id. The language was quoted in Baker for the same proposition, and we noted that “we have been more inclined to approve class certification in mass-accident cases than in products-liability or toxic-tort cases.” 338 Ark. at 247, 992 S.W.2d at 800. Outside of that framework, we have been decidedly more flexible than the federal courts, holding that issues of causation will not bar a finding of predominance and that, in determining predominance, l^we do not merely compare the number of individual versus common issues. Gen. Motors Corp. v. Bryant, supra.
Finally, and most importantly, I cannot agree with the majority’s conclusion that the circuit court’s order in this case amounted to an abuse of discretion. It is telling that the cases relied upon in the majority opinion are those in which we have affirmed a circuit court’s denial of class certification. See Mittry v. Bancorpsouth Bank, 360 Ark. 249, 200 S.W.3d 869 (2005); Williamson v. Sanofi Winthrop Pharm., Inc., 347 Ark. 89, 60 S.W.3d 428 (2001); Baker v. Wyeth-Ayerst Labs. Div., supra. Under our abuse-of-discretion standard of review, reversing a grant of class certification is another matter altogether. We took special care in Williamson v. Sanofi Winthrop Pharmaceuticals, Inc., to point out that “this court reviews class-action certifications or denials under an abuse-of-discretion standard, and we will not reverse the trial court’s decision unless the appellant can demonstrate that the court abused its discretion in reaching its decision.” 347 Ark. at 101, 60 S.W.3d at 436. However, because we could not say that the trial court had abused its discretion in denying class certification, we affirmed the denial. Id. I cannot say that the circuit court in the instant case abused its discretion in granting class certification, and I believe that the majority errs in engaging in a merits analysis to reach the conclusion that it did. For these reasons, I must dissent.