Motion for Class Certification - Arkansas

PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

IN THE CIRCUIT COURT OF [________________________________] COUNTY, ARKANSAS

[________________________________] DIVISION

Case No.: [________________________________]

MOTION FOR CLASS CERTIFICATION AND BRIEF IN SUPPORT

MOTION FOR CLASS CERTIFICATION

Plaintiff [________________________________] ("Plaintiff"), individually and on behalf of all others similarly situated, by and through undersigned counsel, respectfully moves this Court, pursuant to Rule 23 of the Arkansas Rules of Civil Procedure, for an order:

1. Certifying this action as a class action under Ark. R. Civ. P. 23(a) and (b);

2. Appointing Plaintiff [________________________________] as the Class Representative;

3. Appointing the undersigned, [________________________________], as Class Counsel;

4. Defining the Class and the claims and issues to be tried on a classwide basis as set forth below; and

5. Directing the parties to confer and submit a proposed form and plan of class notice under Ark. R. Civ. P. 23(c).

In support, Plaintiff submits the following Brief, the Declaration(s) of [________________________________], the exhibits filed herewith, the pleadings and papers on file, and any evidence and argument presented at the hearing on this Motion.

BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

I. INTRODUCTION

Plaintiff requests certification of the following Class:

Class Definition: All persons in the State of Arkansas who [________________________________] during the period from [__/__/____] through [__/__/____] (the "Class Period").

Excluded from the Class: Defendant, its officers, directors, employees, agents, affiliates, and legal representatives; the judge assigned to this case and his/her staff and immediate family; members of the appellate courts and their staff; and all persons who timely request exclusion.

This case is well suited to class treatment. Defendant engaged in standardized conduct — [________________________________] — that affected every Class member in the same way. The overarching question, [________________________________], can be answered with common proof. Arkansas law strongly favors certifying such cases and resolving the common issues first, reserving any individualized issues for later phases. See General Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008).

II. STATEMENT OF FACTS

A. Background

1. [________________________________]

2. [________________________________]

B. Defendant's Standardized Conduct

3. [________________________________]

4. [________________________________]

C. Plaintiff and the Class

5. Plaintiff [________________________________] is a member of the proposed Class. On or about [__/__/____], Plaintiff [________________________________]. See Declaration of [________________________________], ¶¶ [____].

6. Plaintiff was subjected to the same conduct, and suffered the same type of harm, as the absent Class members.

III. LEGAL STANDARD

Arkansas Rule of Civil Procedure 23 governs class actions. A party seeking certification must satisfy the prerequisites of Rule 23(a) — (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation — and the requirements of Rule 23(b) — (5) predominance of common questions and (6) superiority of the class device. Arkansas courts therefore describe class certification as requiring six elements: numerosity, commonality, typicality, adequacy, predominance, and superiority. ChartOne, Inc. v. Raglon, 373 Ark. 275, 283-84, 283 S.W.3d 576, 582 (2008).

The Arkansas Supreme Court has repeatedly emphasized that the circuit court has broad discretion in deciding certification, and that the question is not whether the plaintiff will prevail on the merits. Gen. Motors Corp. v. Bryant, 374 Ark. 38, 42-43, 285 S.W.3d 634, 638-39 (2008). Arkansas follows a "certify now, decertify later" philosophy: a circuit court may certify a class to resolve the predominating common issues, and may later decertify or use bifurcation to address individualized issues. Id. at 47-48, 285 S.W.3d at 641-42. Notably, Arkansas does not require a choice-of-law analysis as a prerequisite to certification, and variations in individual or state-law issues do not necessarily defeat predominance. Id. at 44-47, 285 S.W.3d at 639-41.

IV. ARGUMENT

A. Numerosity — Rule 23(a)(1)

The Class is so numerous that joinder of all members is impracticable. Although the precise number is within Defendant's records, Plaintiff is informed and believes the Class consists of at least [________________________________] members throughout Arkansas. See [Defendant's records / Declaration of ________].

B. Commonality — Rule 23(a)(2)

There are questions of law or fact common to the Class. Bryant, 374 Ark. at 43, 285 S.W.3d at 639. Common questions include:

☐ Whether Defendant engaged in [________________________________];

☐ Whether Defendant's conduct was unlawful under [________________________________] (e.g., the Arkansas Deceptive Trade Practices Act, Ark. Code Ann. §§ 4-88-101 to -115; breach of contract/warranty; or common law);

☐ Whether Defendant's conduct caused classwide harm; and

☐ [________________________________].

C. Typicality — Rule 23(a)(3)

Plaintiff's claims are typical of the Class because they arise from the same course of conduct and rest on the same legal theories. ChartOne, 373 Ark. at 290, 283 S.W.3d at 586. Specifically:

☐ Plaintiff experienced the same conduct as the Class;

☐ Plaintiff's claims arise from the same events and legal theories; and

☐ [________________________________].

D. Adequacy of Representation — Rule 23(a)(4)

Plaintiff and counsel will fairly and adequately protect the Class.

The Class Representative is adequate because:

☐ Plaintiff has no conflict with the Class;

☐ Plaintiff has a genuine interest in the outcome and will prosecute the case vigorously; and

☐ [________________________________]. See Declaration of [________________________________], ¶¶ [____].

Proposed Class Counsel is adequate because:

☐ Counsel is experienced in class action and complex litigation;

☐ Counsel has prosecuted similar actions; and

☐ Counsel will commit the resources necessary to represent the Class. See Declaration of [________________________________], Exhibit [____].

E. Predominance — Rule 23(b)

Common questions predominate over individual questions. Under Arkansas law, "[t]he predominance element is satisfied if a common question of law or fact is the 'overarching' issue in the litigation," even where individualized issues remain to be resolved later. Bryant, 374 Ark. at 44, 285 S.W.3d at 639-40. The court asks whether common issues constitute a significant part of the individual cases, not whether there are no individual issues at all.

Here, the overarching common question — [________________________________] — predominates because:

☐ Defendant's conduct was uniform across the Class;

☐ Liability can be established through common proof, including [________________________________];

☐ Any individualized issues (e.g., damages or eligibility) can be addressed through bifurcation, subclasses, or a later claims process consistent with the "certify now, decertify later" approach; and

☐ [________________________________].

F. Superiority — Rule 23(b)

A class action is superior to other available methods for the fair and efficient adjudication of this controversy. ChartOne, 373 Ark. at 291-92, 283 S.W.3d at 587. The individual recoveries are modest relative to the cost of suit; absent a class action, most members would have no realistic remedy; class treatment avoids inconsistent adjudications and conserves judicial resources.

G. The Class Is Sufficiently Defined and Identifiable

The Class is defined by objective criteria and members can be identified from Defendant's records, including [________________________________]. See ChartOne, 373 Ark. at 284-86, 283 S.W.3d at 582-84 (approving a class definition identifiable from defendant's records).

V. PROPOSED TRIAL PLAN AND CLASS NOTICE

A. Trial Plan

Consistent with Arkansas's bifurcated, "certify now, decertify later" approach, Plaintiff proposes:

☐ Phase 1 (common issues): classwide trial of liability on the overarching common question(s): [________________________________];

☐ Phase 2 (individual issues, if any): resolution of any remaining individualized issues (e.g., damages, eligibility) through [________________________________];

☐ The Court retains authority to alter, amend, or decertify under Rule 23(c) as the case develops.

B. Class Notice

Upon certification, Plaintiff will submit a proposed notice and plan under Ark. R. Civ. P. 23(c) providing the best notice practicable, which may include:

☐ Direct mail and/or email notice to members identifiable from Defendant's records;

☐ Publication notice in [________________________________]; and

☐ [________________________________].

VI. CONCLUSION

For these reasons, Plaintiff respectfully requests that the Court grant this Motion and enter an order certifying the Class, appointing Plaintiff as Class Representative and the undersigned as Class Counsel, defining the Class claims and issues, and directing the parties to submit a proposed class notice.

DATED: [__/__/____]

Respectfully submitted,

[________________________________]
Attorneys for Plaintiff and the Proposed Class

By: [________________________________]
[Attorney Name], Esq. (Ark. Bar No. [________])
[Firm Name]
[Address]
[City, State ZIP]
Telephone: [________________________________]
Email: [________________________________]

EXHIBITS / SUPPORTING PAPERS

☐ Declaration of [________________________________] (Proposed Class Representative)
☐ Declaration of [________________________________] (Proposed Class Counsel)
☐ Declaration of [________________________________] (Expert, if any)
☐ Proposed Class Notice and Notice Plan
☐ [Proposed] Order Granting Class Certification
☐ [________________________________]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I caused a true and correct copy of the foregoing PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND BRIEF IN SUPPORT to be served upon all counsel of record via:

☐ Arkansas eFlex / electronic filing system
☐ First-Class U.S. Mail
☐ Email
☐ Hand Delivery

Served upon:

[________________________________]
[________________________________]
[________________________________]

[________________________________]
Signature

Arkansas Practice Notes

• Governing rule. Arkansas class actions are governed by Ark. R. Civ. P. 23, which closely tracks federal Rule 23 in text.
• Six-element standard. Arkansas courts require all six elements: numerosity, commonality, typicality, adequacy, predominance, and superiority. ChartOne, Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008).
• Predominance / "certify now, decertify later." Predominance is the central battleground. Arkansas asks whether a common question is the "overarching" issue; the existence of later individualized issues does not defeat predominance, and the circuit court may bifurcate or decertify later. General Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008). Bryant also holds that no choice-of-law analysis is required as a precondition to certification, and that variations in state law in a multistate class do not automatically defeat predominance — a point on which Arkansas is an outlier; expect vigorous opposition and confirm the current state of the law.
• Broad discretion; merits not decided. The circuit court has broad discretion and does not decide the merits at certification. Bryant, 374 Ark. at 42-43, 285 S.W.3d at 638-39.
• Interlocutory appeal of right. An order granting or denying class certification is immediately appealable as a matter of right under Ark. R. App. P.–Civ. 2(a)(9). This is a distinctive feature of Arkansas practice — unlike the federal discretionary Rule 23(f) procedure, either side may appeal the certification ruling immediately. Calendar the appeal deadline carefully upon entry of the order.
• Consumer-protection nuance. Class claims under the Arkansas Deceptive Trade Practices Act (ADTPA), Ark. Code Ann. §§ 4-88-101 to -115, are common; note that the ADTPA has been amended over time (including limits on private and class relief enacted in 2017 — Act 986 of 2017) — verify the current statutory text and its effect on class treatment and remedies for your claim period.
• Unsettled / flag. Arkansas's permissive predominance approach and its rejection of a pre-certification choice-of-law requirement are distinctive and contested; the 2017 ADTPA amendments and federal CAFA removal exposure also materially affect strategy. Brief these points to your facts.

Sources and References

• Ark. R. Civ. P. 23
• Ark. R. App. P.–Civ. 2(a)(9) (interlocutory appeal of certification orders)
• General Motors Corp. v. Bryant, 374 Ark. 38, 285 S.W.3d 634 (2008)
• ChartOne, Inc. v. Raglon, 373 Ark. 275, 283 S.W.3d 576 (2008)
• Ark. Code Ann. §§ 4-88-101 to -115 (Arkansas Deceptive Trade Practices Act; note 2017 amendments)

This template is for informational purposes only and does not constitute legal advice. Arkansas class-action law — particularly its predominance standard and its interlocutory-appeal-of-right procedure — is distinctive and heavily litigated. Consult experienced Arkansas class action counsel before filing.