concurring. While I concur in the result on the facts presented by this case, I write separately because I believe the majority’s analysis of General Motors’s argument on the choice-of-law issue reaches a conclusion that is overbroad. The majority declares that addressing any choice-of-law argument at the class-certification stage goes beyond our required analysis of the elements of certification and is, therefore, never indicated. Such a declaration extends far past the holdings of our prior case law addressing class certification and forecloses analysis that could conceivably be required.
Prior Case Law
The majority cites FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 277 S.W.3d 576 (2008), and Security Benefit Life Ins. Co. v. Graham, 306 Ark. 39, 810 S.W.2d 943 (1991), and quotes them as holding the mere fact that choice-of-law may be involved in the case of some parties living in different states is not sufficient in and of itself to warrant a denial of class certification, and multi-state class actions are not per se problematic for our state’s courts. From that holding, the majority then goes on to conclude that “any potential choice-of-law determination and application” is “similar to a determination of individual issues, which cannot defeat certification.” (Emphasis added.)
In Security Benefit Life Ins. Co. v. Graham, 306 Ark. 39, 810 S.W.2d 943 (1991), owners of certain single-premium, deferred annuities filed a complaint against an insurer, alleging breach of contract. The circuit court granted a motion for certification of a class of plaintiffs defined as all present owners of individual insurance certificates issued by the insurer under one certain master policy. Id. at 41, 810 S.W.2d at 944. The insurer appealed class certification, alleging, inter alia, that common issues of law did not predominate over individual issues because the certificate holders resided in thirty-nine states. Id. at 43, 810 S.W.2d at 945. We rejected the argument that application of the law of thirty-nine states relative to a defense of novation defeated the predominance element of class certification, concluding that a class action would resolve several common questions more efficiently than joinder of plaintiffs, and it did not “seem a particularly daunting or unmanageable task for the parties or the trial court” to apply the laws of multiple states to determine whether the insurer could avail itself of a defense of novation against the class members who resided in the respective states. Id. Thus, similar to the instant case, the choice-of-law issue presented in Security Benefit was related to plaintiffs’ individual recoveries and corresponding defenses the defendant could maintain against those plaintiffs. We did not, however, conclude in Security Benefit that the circuit court was prohibited from considering any choice-of-law issues at the class-certification stage.
The majority also cites THE/FRE, Inc. v. Martin, 349 Ark. 507, 78 S.W.3d 723 (2002), for the proposition that “any potential choice-of-law determination and application [is] similar to a determination of individual issues, which cannot defeat certification.” In THE/FRE, we affirmed the circuit court’s grant of class certification against the appellants’ assertion that issues related to recovery of individual class members and defenses that may be raised by the appellants predominated over common questions of law or fact. To the extent that choice-of-law issues in the instant case go to potential recovery of individual class members or potential defenses that GM may raise, I agree with the majority’s reasoning. The circuit court in THE/FRE, however, did not consider any choice-of-law issues. Thus, I fail to see any logic or authority that will span the gap between our conclusion in the THE/FRE case and the majority’s conclusion in the instant case. A conclusion here that choice-of-law issues not related to recovery or defenses will never predominate over common questions of law or fact is one that I find to be impermissibly overbroad.
Rigorous Analysis
Next, the majority holds that a choice-of-law analysis is foreclosed at the class-certification stage because “we have previously rejected any requirement of a rigorous-analysis inquiry by our circuit courts.” As support for this proposition, the majority cites federal court decisions, all of which hold that the trial court must conduct a “thorough” or “rigorous” analysis of the choice of governing state law before certifying a case as a class action. While it may be a necessary element of “thorough” or “rigorous” analysis in other jurisdictions that a court analyze applicable state laws as a prerequisite to class certification, the converse proposition — any consideration of choice-of-law issues at class certification stage amounts to a “thorough” and “rigorous” analysis — is not necessarily true. In fact, there may be circumstances where the trial court should undertake a choice-of-law analysis to enable us to conduct a meaningful review of the certification issue on appeal. Lenders Title Co. v. Chandler, 353 Ark. 339, 107 S.W.3d 157 (2003).
Choice-of Law and Analysis on the Merits
Newberg specifically endorses choice-of-law considerations at the certification stage, but, at the same time, states that it is not permissible to go to the merits of the case upon deciding a motion for class certification. Newberg on Class Actions § 4.26 (3d ed. 1992). Thus, it is clear that Newberg does not equate a choice-of-law analysis with an impermissible examination of the merits of the plaintiffs claims. The majority cites Carquest of Hot Springs, Inc. v. General Parts, Inc., 367 Ark. 218, 238 S.W.3d 916 (2006), for the proposition that requiring the circuit court to conclude at class certification which law should apply potentially strays into the merits of the action itself. In Carquest, the defendant/counter-claimant alleged that General Parts had engaged in an illegal tying arrangement and violated the Arkansas Franchise Practices Act. Id. at 220, 238, 238 S.W.3d at 917-18. The circuit court found that it did not have jurisdiction over Carquest’s illegal-tying claim because that claim was based on the federal Sherman Anti-Trust Act, and in so finding, the court failed to consider whether the same claim could fall within the purview of the Arkansas Unfair Practices Act (AUPA). We held that discarding Carquest’s AUPA claim amounted to a ruling that the state claim could not prevail, and that ruling constituted an impermissible consideration of the merits of Carquest’s state claim. Id. at 224, 238 S.W.3d at 920. This holding does not support the majority’s statement equating a choice-of-law analysis with an examination of the merits of the case. Therefore, I believe the majority’s contention that Carquest precludes choice-of-law considerations at the class-certification stage is flawed.
GM’s Choice-of-Law Argument
Here, Bryant’s complaint includes claims of breach of express warranty, breach of implied warranty of merchantability, violation of the federal Magnuson-Moss Warranty Act, and fraudulent concealment of a product defect. General Motors argues that the circuit court erred in failing to consider the conflicts oflaws present among the states in which GM has sold the trucks and SUVs alleged to have the parking brake defect. Before the hearing on class certification, GM presented the court with a thorough analysis of conflicts oflaws regarding the state-law fraud claims, breach of warranty, applicable statutes of limitations, and unjust enrichment. It appears from a thorough reading of the circuit court’s fifty-one page class certification order that the court in fact reviewed and considered GM’s choice-of-law arguments, but, nevertheless, found that Bryant had satisfied the class-certification element of predominance. The circuit court went on to declare as a matter of law that our court has interpreted Rule 23 of the Arkansas Rules of Civil Procedure as precluding a choice-of-law analysis at the class-certification stage and stated without citation that “[i]n truth, there is no greater merits-intensive determination than the one regarding choice of law. Choice of law has everything to do with a case’s merits.”
The majority opinion ratifies the circuit court’s declaration and thereby cuts off any future possibility that a conflict of laws could defeat a finding of predominance. With this I cannot agree.
Class Certification Order
From my reading of the class certification order, I believe that the circuit court properly considered the conflict of laws argument GM presented to the court and found that the issues of law and fact common to the members of the class predominate over individual issues of law and fact. The court determined from the evidence presented at the class-certification hearing that Bryant alleges a product defect that is present at the time of manufacture on all of a set of vehicles defined in the class definition. Similarly, all class members received identical express warranties from GM, and all class members seek the same warranty remedies. Bryant presented extensive documentation of initial reports to GM of a potential defect, GM’s testing and verification of the alleged product defect, and procedures by which GM addressed the alleged defect with respect to vehicles equipped with manual transmissions, while at the same time electing not to address the alleged defect with respect to vehicles equipped with automatic transmissions. Specifically, the circuit court stated that it saw “nothing to convince it that this alleged defect is not present in all class vehicles, or that it doesn’t occur or manifest itself each time a class vehicle is used.” With respect to potential state-law variations, the vast majority relate to defenses raised by GM regarding the recovery of individual members, such as: application of statutes of limitations; fraud-related materiality and reliance; individual knowledge of parking brake defect; whether an individual’s parking brake has been repaired under warranty; notice of warranty breach; expiration of factory warranty based on mileage; and comparative fault. The mere fact that individual issues and defenses may be raised by a company regarding the recovery of individual members cannot defeat a class certification where there are common questions concerning the defendant’s alleged wrongdoing which must be resolved for all class members. Lenders Title Co. v. Chandler, supra; Seeco Inc. v. Hales, 330 Ark. 402, 954 S.W.2d. 234 (1997). Here, the circuit court concluded that the “individual determinations relating to recovery or damages . . . pale in comparison to the common issues surrounding GM’s allegedly defectively designed parking brake and cover up to avoid paying warranty claims.” Based on the circuit court’s extensive review of the evidence and its thorough findings of fact and conclusions of law, it is clear that the circuit court acted within its discretion in certifying the class of plaintiffs as defined in the court’s order.
For these reasons, I concur with the majority’s opinion that the circuit court did not abuse its discretion in finding that Bryant has met the requirements of Rule 23; likewise, I would affirm the circuit court’s order of class certification.
Corbin, J., joins this concurrence.