Concurring in Part and Dissenting in Part and joined by COLBERT, J.
T1 I dissent to some extent from the Court's opinion for three reasons. The Court misapplies the class action requirements for typicality and predominance. Secondly, the Court states that contract law of thirty-seven jurisdictions applies, but then fails to follow through and apply the law of thirty-seven jurisdictions to determine whether a class action is appropriate. Finally, the plaintiff has a Due Process right to an opportunity to show the facts and law from the thirty-seven jurisdictions that would support the creation of a class action, and the Court impermissibly forecloses this opportunity.
12 Under Title 12 of the Oklahoma Statutes, a class may be certified when it satisfies the four requirements of § 2023(A) and one of the requirements of § 2023(B).1 Bur*1040gess v. Farmers Ins. Co., Inc., 2006 OK 66, ¶ 10, 151 P.3d 92, 98. Section 2023(A) requirements are: (1) numerosity of class members, and (2) commonality of questions of fact or law, and (8) typicality of claims or defenses of representatives within the class, and (4) adequacy of representative parties to fairly protect class members. Section 2023(B) alternate requirements are: (1) a risk of inconsistent adjudications by separate actions or substantial impairment of non-parties to protect their interests, or (2) appropriateness of final injunctive or declaratory relief, or (8) predominance of common questions of law or fact to class members and superiority of class action adjudication.
13 Goodyear points to Harvell's allegation that she was not provided with an estimate. Goodyear argues that this allegation shows that each putative class member's interaction with a Goodyear service center must be determined for the purpose of showing the terms of each contract, and that such destroys the typicality of the class. I disagree.
14 Federal courts have explained that the typicality requirement of Federal Rule 23,2 our § 2023(A)(8), means that the "class representative and the putative class members 'possess the same interest and suffer the same injury." 3 The focus is on defendant's behavior and whether plaintiff's claim arises from the same event or practice or course of conduct that gives rise to the claims of the other class members.4 Typicality "does not require that all putative class members share identical claims. Indeed, so long as 'the claims of the named plaintiffs and putative class members involve the same conduct by the defendant, typicality is established regardless of factual differences'"5 If the *1041claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality. Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir.2002); Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988). Stated another way, "Factual differences in the claims of the class members should not result in a denial of class certification where common questions of law exist" because such differences do not defeat the sufficiency of the typicality and commonality presented by the common questions of law or fact possessed by the class. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982).
15 A class representative must possess the same interest and suffer the same injury as the putative class members. General Telphone Co. of Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Harvell claims that Goodyear made a contractual misrepresentation to all members of the putative class. Where the claims of the plaintiff and the putative class members all arise from the same alleged misrepresentations by the defendant, the claims of the plaintiff are typical of those of the class.6 Different factual cireumstances may exists among putative class members, but such differences do not defeat typicality when the claims of the class representative and the putative class members are based upon the same legal or remedial theory. Adamson v. Bowen, 855 F.2d at 676; Milonas Williams, 691 F.2d at 938.
16 Harvell's claim distinguishes between Goodyear's alleged practice of itemizing the shop fee in estimates/work orders used in California, New York, and Washington D.C. and its practice in other jurisdictions where the estimates/work orders show an agreement to pay a fee for the miscellaneous materials used when servicing a vehicle Har-vell's claim distinguishes between the former, where she says "there would be no deceptive practice and no breach of contract" and the latter jurisdictions where itemization did not occur. The putative class is based upon the same alleged misrepresentation to all members of the class. Harvell's claim based upon the written estimates/work orders does not require the trial court to make individualized determinations of the agreements between Goodyear and each of its customers.
T7 Goodyear also appears to argue that the alleged misrepresentations did not occur to all putative class members as a matter of law, and that Harvell's claim is thus atypical. The essence of Goodyear's argument is that upon application of the various states' laws to the claims of the various putative class members, no claim may exist as a matter of substantive contract law. In other words, those customers who were provided with a pre-work estimate do not have, as a matter of law, a cause of action; but, if they do, it is different from that possessed by Harvell.
T8 A court does not determine the merits of a plaintiff's claim when deciding whether the claim should proceed as a class action.7 In Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), the High Court stated:
In short, we agree with Judge Wisdom's conclusion in Miller v. Mackey International, 452 F.2d 424 (5th Cir.1971), where the court rejected a preliminary inquiry into the merits of a proposed class action:
'In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a *1042cause of action or will prevail on the merits, but rather whether the requirements of Rule 28 are met' Id. at 427.
Eisen, 417 U.S. 156, at 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (emphasis added).
Goodyear attempts to make class certification depend upon a 12 O.S.2001 § 2012 (B)(6)8 analysis, contending Harvell's claim is atypical legally because a claim from pre-service estimate customers fails to state a claim upon which relief can be granted. A class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, at 160, 102 S.Ct. 2364, 72 L.Ed.2d 740. However, Eisen indicates that class certification does not depend upon an analysis of whether a plaintiff's claim states a cause of action.9 Additionally, this Court does not usually make first-instance determinations of disputed questions of law on appeal.10 To the extent that Goodyear's attack on typicality is an attack on the merits of Harvell's cause of action, such is improper for review of a class certification order.
T9 The Court's opinion states the following, crucial to its analysis:
The customer ordinarily signs the estimate before any work is done. Apparently, Harvell is not the typical customer because she alleges that she was not given an estimate until after the work was completed. The existence of a contract and a determination of what the material terms of the contract were differ with each class member's interaction with each service center. These individualized determinations, coupled with the application of the law of 37 states, precludes a finding of predominance and defeats the purpose of certifying a class. The trial court would be overwhelmed with the burden of an unmanageable class.
2006 OK 24, at 116, 164 P.3d 1028 note omitted.
Typicality is not based upon identical facts. Typicality is a legal conclusion that assesses the materiality of facts in the context of the particular cause(s) of action raised by the putative class. To reach the conclusion that Harvell's cause of action is not typical, the Court must identify the elements of the particular cause of action at issue by applying the applicable substantive law of contract. The Court does not do so in its opinion.
T 10 The Court says that Harvell's claim or cause of action is different because some customers received a pre-work estimate. Why? What jurisdiction's substantive law of contract is the Court applying in making this legal conclusion? The Court is clear that it is not applying the law of thirty-seven jurisdictions. But if the law of thirty-seven jurisdictions is not applied, how can the Court conclude that the fact of pre-work estimates is material to the cause of action by the members of the putative class residing outside Oklahoma? Their claims, as the Court holds, are to be measured by the substantive law of the jurisdictions they reside in, law the Court steadfastly refuses to apply.
11 In support of its typicality conclusion, the Court cites the class action statute, 12 O.S.2001 § 2023 (B)(3), Ysbrand v. DaimilerChrysler Corp., 2003 OK 17, 81 P.3d 618 cert. denied, 542 U.S. 937, 124 S.Ct. 2907, 159 L.E.2d 812 (2004), and KMC Leasing, Inc. v. Rockwell-Standard Corp., 2000 OK 51, 9 P.3d 683. None of these support the Court's conclusion. The statutory cite refers to the requirements of typicality. Here the issue is *1043not the meaning of the statutory requirements, but application of the requirements.
{12 In KMC Leasing we noted that there was "no single course of conduct by appellees alleged to have caused injury and it is impossible for claims to be based upon one legal theory as to all appellees." KMC Leasing, at ¶ 16, 9 P.3d at 689. We additionally noted that "facts that bear on lability will not be typical." Id. at ¶ 28, 9 P.3d at 692. We quoted authority stating that it "is often nee-essary to analyze the substantive claims and defenses of the parties and the essential elements of those claims and defense...." Id. at ¶ 30, 9 P.3d at 692, quoting Davoll v. Webb, 160 F.R.D. 142, 143 (D.Colo.1995), aff 'd, 194 F.3d 1116 (10th Cir.1999).
1 13 The case before us is based upon the same alleged misrepresentation to all members of the class. Harvell is arguing that a "single course of conduct" by Goodyear caused injury. The question common to the class, as alleged by Harvell, is whether Goodyear misrepresented the true nature of the fee.11 Liability, as alleged by Harvell, does not depend upon individualized agreements, but whether Goodyear misrepresented the true nature of the fee to the class as a whole.
T 14 Goodyear alleges that customers who viewed the pre-work estimates do not have, as a matter of substantive contract law, a cause of action. In other words, the pre-work viewing constitutes a legally material and different course of conduct. Whose side should the Court adopt ? At this stage, neither. The matter should be remanded to the trial court for further development. Instead, the Court adopts Goodyear's legal conclusions of Harvell's claims. But where in the Court's opinion is the analysis of the "essential elements" of Harvell's claim that is called for by KMC Leasing to determine whether Harvell's claim is typical?
115 In Ysbrand the Court declined to apply the law of fifty-one jurisdictions to a fraud and misrepresentation claim. Ysbrand, at ¶ 18, 81 P.3d at 627. In Ysbrand there is no indication of any request in the trial court to create subclasses. Harvell specifically requested in the trial court that subclasses be created if the trial court determined that the law of thirty-seven jurisdiction applies. But the trial court did not reach that request because it determined that the law of thirty-seven jurisdictions did not apply.
16 The Court's opinion remains silent on the issue of Harvell's opportunity to seek class certification with subclasses. However, it concludes that a class action involving thirty-seven jurisdictions may not proceed. The trial court has not determined whether subclasses would be manageable. Even when this Court exercises its broad reviewing powers in an equitable proceeding, it does not make first-instance findings of fact; and the Court allows the parties an opportunity to create a record of facts to support their legal theories.12 Class certification issues may depend upon findings of fact made by the trial court.13 A trial judge considers the evidence *1044from both sides when making a certification ruling, and a ruling for class certification does not bind the trial court to rule for the plaintiff when adjudicating the ultimate merits of that issue. In re Initial Public Offering Securities Litigation, 471 F.3d 24, 39, 39 n. 9 (2d Cir.2006). Harvell's evidentiary position is that Goodyear's invoices show the terms of the contracts, even to those customers who viewed the estimates prior to service to their vehicles. In this appeal Goodyear must show an abuse of discretion 14 in the trial judge's certification ruling, and that showing must be based upon evidence in the record that Goodyear's contracts with its customers were something other than its invoices. Harvell and Goodyear should be provided with an opportunity to satisfy their respective burdens of persuasion and proof.
1 17 The choice of law for actions involving contracts has been legislatively determined for this jurisdiction. "A contract is to be interpreted according to the law and usage of the place where it is to be performed, or, if it does not indicate a place of performance, according to the law and usage of the place where it is made." 15 0.8.2001 § 162. Seetion 162 incorporates two well-known choice of law principles: the law of the place of performance (lex loci solutionis ) and, when there is contractual silence on place of performance, the law of the place where the contract was created applies (lex loci con-tractus ). Panama Processes, S.A. v. Cities Service Co., 1990 OK 66, 796 P.2d 276, 287.
T18 Federal courts have stated that a choice of law issue often arises within a Federal Rule 23 analysis when a court examines the alternate 23(b)(@) requirement of predominance of questions of law common to class members. Satisfaction of the commonality requirement will not decide the (b)(8) predominance requirement because a putative class may satisfy the commonality requirement of 23(a) and yet fail to satisfy the predominance requirement of 28(b)8). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Monreal v. Potter, 367 F.3d 1224, 1237 (10th Cir.2004). A court ordinarily 15 will determine whether predominance of common questions of law outweighs the set of issues that separate the class.16
19 Section 2023 lists four nonexhaustive matters pertinent to this weighing or balane-ing,17 the federal counterparts of which have been regarded in a variety of ways by federal courts. The calculus of this balancing or the assignment of values to the various factors is unique for each controversy because of the fact-specific nature of the court's determination of predominance. For example, there may be a controversy in which class resolution of one issue or a small group of them will so advance the litigation that they may fairly be said to predominate.18 Although the predominance test is readily met in certain types of consumer cases,19 choice of law considerations requiring the application of *1045varying legal standards, such as the laws of several states, may eclipse the common issues in a controversy and the putative class thus fail the predominance test.20
1 20 The choice of law in this controversy, 15 0.8.2001 § 162, the law of the place of performance, requires the trial court to examine the laws of all states of the putative multistate class where the contracts were performed.21 We may not conclude in an a priori manner, as matter of law, that every putative class action brought in this jurisdiction based upon contract law will necessarily be incapable of class certification when various states' contract laws, via the lex loci solutionis/contractus choice of law, are applied to the controversy. The fact that laws of various states are applicable would not necessarily preclude a class action based upon principles of contract law. As one court observed, "The application of various state laws would not be a bar [to class certification] where, as here, the general policies underlying common law rules of contract interpretation tend to be uniform." 22
121 The trial court did not apply the appropriate lex loct solutionis/contractus choice of law required by 15 O.S. § 162. Generally, on an appeal this Court does not make first instance determinations on disputed questions of fact or law.23 The predominance and superiority requirements of Rule 28(b)(8), our § 2028(B)(8), "were adopted to cover cases in which a class action would achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results ... [which] ... invite[ ] a close look at the case before it is accepted as a class action...." Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 186 (3rd Cir.2001), quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (internal quotations and citations omitted). The trial court has not made this determination using the appropriate legal standard. ©
122 Harvell argued in the trial court that Ohio law should be applied pursuant to the most significant relationship test from the Restatement (Second) of Conflict of Laws. We have rejected application of the Restatement. Harvell also argued that if Ohio law was not applied to the class as a whole then subclasses could be created.24 Harvell ar*1046gued that the differences in certain statutes of the various states were not barriers to a class action: "Differences can be briefed, and class members grouped into subclasses according to the elements of their state law." 25 Harvell argued that "these differences, if material, are few and uniform, allowing for easy grouping." 26
123 Harvell mentions subclasses in her brief on appeal.27 The Court determines on appeal in the first instance that the application of varying states' laws is not administratively manageable using the available § 2028 procedures, and sub silentio determines that § 2023(C)(d4) subclasses are not appropriate for this controversy.28 It does so by adopting Goodyear's characterization of the elements of Harvell's cause of action and concluding that customers who viewed pre-work estimates have a different legal claim than Harvell such that Harvell's claim cannot be part of a class action.
{24 The Court utilizes Goodyear's argument that different statutes of limitations may exists in the law of the various jurisdictions. Some courts have rejected an attack upon a putative class based upon statutes of limitations for the reason that application of the defense goes to the merits of the cause of action.29 On the other hand, some courts have stated that statutes of limitation should be considered when a court makes a class certification decision. Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288, 295-296 (1st Cir.2000). When statutes of limitations affect different class members differently there 4s no per se rule requiring a denial of class certification. For example, in Waste Management Holdings, Inc. v. Mowbray, the court stated the following.
Although a necessity for individualized statute-of-limitations determinations invariably weighs against class certification under Rule 28(b)(8), we reject any per se rule that treats the presence of such issues as an automatic disqualifier. In other words, the mere fact that such concerns may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones. As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of statutes of limitations will not automatically foreclose class certification under Rule 23(b)(3). See 5 James Wm. Moore et al., Moore's Federal Practice § 23.46[3], at 23-210 to -211 (8d ed.1999). Predominance under Rule 28(b)(8) cannot be reduced to a mechanical, single-issue test.
Waste Management Holdings, Inc. v. Mowbray, 208 F.3d at 296, (note omitted).
Should the trial court consider the varying statutes of limitation when deciding class certification? Yes, it should. Do varying statutes of limitation require, by themselves, that the trial court, as a matter of law, deny class certification? No, they do not.30 Whether *1047the varying statutes of limitation destroy predominance or not, or are administratively manageable or not, or are appropriate for subclasses or not, are decisions for the trial court to make in the first instance after the parties present their respective positions in the context of the lex loci solutionis/contrac-tus choice of law. This has not yet occurred in the trial court and the parties should be afforded an opportunity to present their positions.
125 In Harvell's class action, she argued for a Restatement (Second) significant-relationship test and produced citations to various statutes and opinions from other states. Harvell failed to show that an exception to lex loci solutionis/contractus choice of law of 15 0.8. § 162 applies, and her putative class requires application of the laws of various states. Harvell should be given an opportunity to show how those statutes and cases support her argument for a class or appropriate subclasses based upon the applicable requirements of § 2028, eg., commonality, typicality and, if necessary, predominance. Harvell has the burden to identify the applicable law of the various states, including its variations, upon which she bases her multi-state claims. Walsh v. Ford Motor Co., 257 U.S.App.D.C. 85, 807 F.2d 1000, 1017 (D.C.Cir.1986), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 677 (1987). Goodyear has already met its burden of showing that the laws of other jurisdictions apply, but Goodyear additionally argues that the laws of various jurisdictions conflict with each other and destroy commonality, typicality, and predominance. Goodyear's burden is to show that those laws are as Goodyear says they are and accomplish the legal result Goodyear says they do. Harvell should be provided an opportunity to show that the requirements of § 2028 are satisfied with that applicable law, and Goodyear should have the opportunity to challenge those claims.
126 A district court in Oklahoma shall take judicial notice of the common law, constitutions, and public statutes of other states. 12 0.8.2001 § 2201 (A)31 That section "requires that judicial notice be taken of the common law, constitutions, and public statutes in force in every state, territory, and jurisdiction of the United States." 2 L. Whinery, Oklahoma Evidence, Commentary on the Law of Evidence, § 5.03, 64 (2d ed., 2000). The procedure for taking judicial notice is provided by 12 0.8.2001 § 2203.32 The court may consult and use any source of pertinent information, whether or not furnished by a party. Panama Processes, S.A. v. Cities Service Co., 1990 OK 66, 796 P.2d 276, 294. While judicial notice may dispense with a certain form of proof, it does not dispense with the allocation of the burdens upon each party to argue the applicable law. Lewis v. Sac and Fox Tribe of Oklahoma Housing Authority, 1994 OK 20, 896 P.2d 503, 512-513, cert. denied, 516 U.S. 975, 116 S.Ct. 476, 133 L.Ed.2d 405 (1995). We do not have a record before us showing that the litigants had an opportunity to satisfy their respective burdens.
*1048127 In Patel v. OMH Medical Center, Inc., 1999 OK 33, 987 P.2d 1185, this Court stated that "When necessary finding of facts and conclusions of law are absent, the case must be remanded with directions that they be made by the trial court." Id. at n. 59, 987 P.2d at 1201. Harvell made a request for a determinations of class certification with subclasses if the trial court determined that multi-jurisdiction law applied. The trial court did not make findings of fact and conclusions of law on Harvell's request because it determined that the law of several jurisdictions did not apply. Section 2028 gives plaintiffs an opportunity to show a class with subclasses.
€ 28 Today, the Court correctly determines that the law of several jurisdictions applies, but it short-cireuits Harvell's request for subclasses in the District Court by concluding that Harvell's class action may not be maintained. The Court's opinion accomplishes this by placing a burden upon plaintiffs to provide a public-policy reason for exempting out of the lex loci solutionis/contractus rule of law and then concluding that this burden was not satisfied. I agree that the plaintiff must satisfy the burden of showing that lex loci solutionis/contractus does not apply. However, in this case both parties and the trial court construed our prior case-law as abrogating lex loct solutionis/contractus rule, and neither party nor the trial court understood the nature of plaintiff's burden. Their incorrect understanding on the legal issue is reasonable given the nature of some of this Court's prior statements on this issue. For example, in Bohannan v. Allstate Ins. Co., 1991 OK 64, 820 P.2d 787, the Court stated that "The reasons stated in Bricknerf[v. Gooden, 525 P.2d 632 (Okl.1974)] for abandoning and rejecting the lex loci delictus rule in tort law are equally compelling for abandoning and rejecting the lex loci contrac-tus rule in contract law." Id. 820 P.2d at 795, emphasis added. When changes in the law occur, whether by this Court or the Legislature, and the parties and trial court did not have the benefit of this Court's opinion or the new statute, the Court has remanded the matter to the trial court for application of the correct rule of law. Barnes v. Oklahoma Farm Bureau Mut. Ins. Co., 2000 OK 55, ¶ 56, 11 P.3d 162, 182; Self Insurers' Management Group v. YWCA of Oklahoma City, 1997 OK 95, 954 P.2d 115, 120. The lack of opportunity to present their respective positions was due, in part, to this Court's previous announcements. Remanding the matter for the litigants to make their arguments with the correct legal standard is simply a question of fairness in providing the litigants with an opportunity to present their case.
129 Finally, I must note that the relief I suggest as proper for this controversy has been given by the U.S. Supreme Court. In Phillips Petroleum Company v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985), the Court sustained the petitioner's claim and reversed the lower court based upon its improper selection of the applicable choice of law, Id. 472 U.S. at 822-823, 105 S.Ct. 2965; but reversal on choice of law did not foreclose a determination by the lower court upon remand whether a class action could proceed pursuant to the appropriate choice of law. Our opinion here should follow the example of both the U.S. Supreme Court and this Court's prior opinions, and refrain from deciding the class action issue until Harvell has been provided with an opportunity to present facts and law in support of her quest for class certification with subclasses upon remand in accordance with the lex loci solutionis/contractus standard.33
. Title 12 0.$.2001 § 2023 provides in pertinent part:
"A. PREREQUISITES TO A CLASS ACTION. One or more members of a class may sue or be sued as representative parties on behalf of all only if:
1. The class is so numerous that joinder of all members is impracticable;
*10402. There are questions of law or fact common to the class;
3. The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
4. The representative parties will fairly and adequately protect the interests of the class.
B. CLASS ACTIONS MAINTAINABLE. An action may be maintained as a class action if the prerequisites of subsection A are satisfied and in addition: 1
1. The prosecution of separate actions by or against individual members of the class would create a risk of:
a. inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
b. adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
2. The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final in-junctive relief or corresponding declaratory relief with respect to the class as a whole; or
3. The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
a. the interest of members of the class in individually controlling the prosecution or defense of separate actions,
b. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class,
c. the desirability or undesirability of concentrating the litigation of the claims in the particular forum, and
d. the difficulties likely to be encountered in the management of a class action. ..."
. Since Oklahoma's class action statute, § 2023, closely parallels Rule 23 of the Federal Rules of Civil Procedure, the Court may look to federal authority for guidance regarding the rationale of comparable provisions in § 2023. KMC Leasing, Inc. v. Rockwell-Standard Corp., 2000 OK 51, ¶ 9, 9 P.3d 683, 688.
. Collins v. International Dairy Queen, Inc., 168 F.R.D. 668, 674, (M.D.Ga.1996), modified on other grounds, 169 F.R.D. 690 (M.D.Ga.1997), and quoting, General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 2370, 72 L.Ed.2d 740 (1982).
. Collins v. International Dairy Queen, Inc., 168 F.R.D. 668, 674, (M.D.Ga.1996), (the focus is on defendant's behavior or conduct), quoting, Zinberg v. Washington Bancorp, Inc., 138 F.R.D. 397, 407 (D.N.J.1990).
. Johnston v. HBO Film Management, Inc., 265 F.3d 178, 184, (3rd Cir.2001) quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 183-184 (3rd Cir.2001). See also Zeno v. Ford Motor Co., Inc., 238 F.R.D. 173, 186 (W.D.Pa.2006) ("Commentators have noted that cases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims"); Collins *1041v. International Dairy Queen, Inc., 168 F.R.D. 668, 674, (M.D.Ga.1996) (varying fact patterns do not defeat typicality) quoting In re Domestic Air Transportation Antitrust Litigation, 137 F.R.D. 677, 698 (N.D.Ga.1991) quoting 7A Wright, Miller & Kane, Federal Practice and Procedure § 1764 (1986) citing Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.1984), cert. denied, 470 U.S. 1004, 105 S.Ct. 1357, 84 L.Ed.2d 379 (1985).
. Johnston v. HBO Film Management, Inc., 265 F.3d 178, 185, (3rd Cir.2001); In re Polaroid Erisa Litigation, 240 F.R.D. 65, 76 (S.D.N.Y. 2006) (typicality where alleged misrepresentations were made to members of putative class). See also Zeno v. Ford Motor Co., Inc., 238 F.R.D. 173, 186 (W.D.Pa.2006) ("Commentators have noted that cases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims").
. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Black Hawk Oil Co. v. Exxon Corp., 1998 OK 70, ¶ 18, 969 P.2d 337, 343.
. The terms of 12 0.$.2001 § 2012 (B) provide in pertinent part: "Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * 6. Failure to state a claim upon which relief can be granted;"
. See also Shook v. El Paso County, 386 F.3d 963, 971 (10th Cir.2004), cert. denied, 544 U.S. 978, 125 S.Ct. 1869, 161 L.Ed.2d 729 (2005); Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982).
. Oklahoma Public Employees Ass'n v. Oklahoma Dept. of Central Services, 2002 OK 71, n. 3, 55 P.3d 1072, 1077, Martin v. Johnson, 1998 OK 127, ¶ 34, 975 P.2d 889, 897; YWCA v. Melson, 1997 OK 81, n. 1, 944 P.2d 304, 306.
. See, e.g., Allapattah Services, Inc. v. Exxon Corp., 333 F.3d 1248, 1261 (11th Cir.2003) (Exxon's argument that each breach of contract claim raised an individual issue was without merit because all of the dealer agreements were materially similar and Exxon purported to reduce the price of wholesale gas for all dealers, and the duty of good faith was an obligation that it owed to the dealers as a whole. Whether it breached that obligation was a question common to the class.).
. See, e.g., Nelson v. Pollay, 1996 OK 142, 916 P.2d 1369, 1376 (generally, an appellate court will not make first-instance determinations of law or fact since that is the trial court's function in every case-whether in law, equity or on appeal from an administrative body); Hedges v. Hedges, 2002 OK 92, ¶ 23, 66 P.3d 364, 373 ("When reviewing an equity case, an appellate court cannot exercise first-instance cognizance by making original findings of fact.").
. See, eg., Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715(1999) (in certain circumstances settling parties must present not only their agreement, but evidence on which the district court may rely to support required findings of fact where certification is sought of limited fund class action for purposes of settlement); Walsh v. Ford Motor Co., 257 U.S.App.D.C. 85, 807 F.2d 1000, 1017-1018 (D.C.Cir.1986), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 677 (1987) (class action proponents may not be called upon to prove their case in order to obtain certification, but they are required to tender some creditable basis, some evidence, that the proponents were subject to similar treatment by the defendant).
. Shores v. First City Bank Corp., 1984 OK 67, ¶ 1, 689 P.2d 299, 300. In the context of class certification we have stated that an abuse of discretion occurs if the record fails to support the conclusion that the statutory prerequisites for class certification are met. Ysbrand v. Daimler Chrysler Corp., 2003 OK 17, ¶ 5, 81 P.3d 618, 623, cert. denied, 542 U.S. 937, 124 S.Ct. 2907, 159 L.Ed.2d 812 (2004).
. Whether a balancing determination of predominance is always appropriate for a class action we need not determine in this controversy. But see, e.g., Romberg, Half a Loaf is Predominant and Superior to None: Class Certification of Particular Issues Under Rule 23(c)(4)(A), 2002 Utah L.Rev. 249, 280 (2002) ("the landscape for measuring predominance and superiority under Rule 23(b)(3) is fundamentally altered by Rule 23(c)(4)(a)").
. See, e.g., Hines, The Dangerous Allure of the Issue Class Action, 79 Ind. L.J. 567, 594 (2004) (''Rather, the predominance test demands a finding of supercommonality in the proposed class action. It requires careful assessment of the overall character of the class action, weighing the issues common to the class against the set of issues that separate the class.").
. 12 O.S. § 2023 (B)(3)(a)-(d), inclusive, supra, at n. 1.
. In re School Asbestos Litigation, 789 F.2d 996, 1010 (3d Cir.), cert. denied sub nom. Celotex Corp. v. School District, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117, and National Gypsum Co. v. School Dist. of Lancaster, 479 U.S. 915, 107 S.Ct. 318, 93 L.Ed.2d 291 (1986).
. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct 2231, 138 L.Ed.2d 689 (1997).
. See, e.g., In re LifeUSA Holding Inc., 242 F.3d 136, 147 (3d Cir.2001) (the district court failed to consider how individualized choice of law analysis of the forty-eight different jurisdictions would impact on Rule 23's predominance requirement); Georgine v. Amchem Products, Inc., 83 F.3d 610, 618 (3d Cir.1996) (predominance requirement of Rule 23(b) could not be met because the choice of law considerations eclipsed common issues in the case), affirmed, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689, (1997); Spence v. Glock, Ges. m.b.H., 227 F.3d 308, 309-310 (5th Cir.2000) (because the district court erred in its choice of law analysis it abused its discretion on the issue of predominance under Rule 23(b)(3) and the order of certification was reversed); Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir.1996) (the district court erred in its analysis when it failed to consider how variations in state law affect predominance and superiority); In re Tri-State Crematory Litigation, 215 F.R.D. 660, 695 n. 24 (N.D.Ga.2003); Ryan Patrick Phair, Comment, Resolving the "Choice-of-Law Problem" in Rule 23(b)(3) Nationwide Class Actions, 67 U. CHI. L. REV. 835 (2000). But see, Jennings Oil Co., Inc. v. Mobil Oil Corp., 80 F.R.D. 124, 130 (S.D.N.Y.1978) (in a national class should the uniform release clause in contracts need to be resolved pursuant to state law the validity of the release could be determined by individual application of state law).
. In the alternative, if the contracts are silent on the places of performance the trial court would examine where the contracts were created. 15 0.8.2001 § 162.
. Collins v. International Dairy Queen, Inc., 168 F.R.D. 668, 676, (M.D.Ga.1996), modified on other grounds, 169 F.R.D. 690 (M.D.Ga.1997), and quoting Kleiner v. First National Bank, 97 F.R.D. 683, 694 (N.D.Ga.1983).
. Oklahoma Public Employees Ass'n v. Oklahoma Dept. of Central Services, supra, Martin v. Johnson, supra, and YWCA v. Melson, supra, at n. 10.
. O.R., Plaintiff's Submissions in Support of Class Certification, Vol. II, Part "D" Plaintiff's Choice of Law Analysis, pg. 583, 585 (Feb. 25, 2005). See also Plaintiff's Motion for Class Certification and Brief, O.R. 68, 83 ("Any problems created by the need to address individual issues may be resolved by certifying issue classes under Section 2023(C)(4)(a) or subclasses under Section 2023(C)(4)(b).").
. Id. O.R., Plaintiff's Submissions in Support of Class Certification, Vol. II, Part "D" supra, note 24, at pg. 586.
. O.R., Plaintiffs Submissions in Support of Class Certification, Vol. II, Part "D", supra, note 24, at pg. 586.
. Harvell mentions § 2023(C) subclasses in her appellate brief for circumstances of factual variations between plaintiffs subject to the same conduct by the defendant and on the issue of predominance. Appellee's Answer Brief at 9 and 13.
. Whether putative class members may be grouped according to the various states' contract laws for the purpose of various subclasses is a determination that is made in the first instance by a trial court. A trial court has no sua sponte burden to subclassify; it is a plaintiff's burden to designate an appropriate class. Heaven v. Trust Co. Bank, 118 F.3d 735, 738 (11th Cir.1997). In United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 1215, 63 L.Ed.2d 479 (1980), the Court explained that the burden is on the plaintiff for constructing subclasses and submitting proposals to the trial court. Id., 445 U.S. at 408, 100 S.Ct. 1202.
. See, e.g., CV Reit, Inc. v. Levy, 144 F.R.D. 690, 697 (S.D.Fla.1992) (rejecting argument that plaintiffs' claims were atypical based upon statute of limitations, reasoning that the argument was inappropriate for class certification); Gruber v. Price Waterhouse, 117 F.R.D. 75, 78-79 (E.D.Pa.1987) ("'the statute of limitations defense goes to the merits of the plaintiffs' complaint and therefore is beyond the scope of a motion for class certification").
. The potential individual questions raised by the application of varying statutes of limitations do not require, as a matter of law, the conclusion *1047that common issues of fact and law do not predominate. Instead, such questions should be addressed in the context of subclasses within the class action. One authority discussing the issue of varying statutes of limitations states that: "If the court finds that a class is appropriate, and that the conflict be resolved, it should do so by establishing subclasses, based upon appropriate description characterizations, to protect class members' interests and to facilitate management of the action." Conte, Alba, and Newberg, Herbert B., Newberg on Class Actions, § 7.31, pg. 89 (4th ed.2002).
. 12 0.$.2001 § 2201 (A):
A. Judicial notice shall be taken by the court of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States.
. 12 0.$.2001 § 2203:
§ 2203. Determining Propriety of Taking Judicial Notice
A. In determining the propriety of taking judicial notice of a matter:
1. The court may consult and use any source of pertinent information, whether or not furnished by a party; and
2. No exclusionary rule except a valid claim of privilege shall apply.
B. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the scope of the matter noticed.
In the absence of prior notification, the request may be made after judicial notice has been taken.
C. Judicial notice may be taken at any stage of the proceeding.
. Whether putative class members may be grouped according to varying methods for determining damages with the creation of subclasses, as opposed to administrative groups within a particular class, is a determination that is made in the first instance by a trial court. A trial court has no sua sponte burden to subclassify; it is a plaintiff's burden to designate an appropriate class. Heaven v. Trust Co. Bank, 118 F.3d 735, 738 (11th Cir.1997). In United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 1215, 63 L.Ed.2d 479 (1980), the Court explained that the burden is on the plaintiff for constructing subclasses and submitting proposals *1049to the trial court. Id. 445 U.S. at 408, 100 S.Ct. 1202.