State ex rel. Coca-Cola Co. v. Nixon

• Decision Date: 15 April 2008
• Docket Number: No. SC 88531.,SC 88531.
• Citation: 249 S.W.3d 855
• Parties: STATE ex rel. The COCA-COLA COMPANY, Relator, v. The Honorable W. Stephen NIXON, Respondent.
• Court: Missouri Supreme Court

249 S.W.3d 855

STATE ex rel. The COCA-COLA COMPANY, Relator, v. The Honorable W. Stephen NIXON, Respondent.

No. SC 88531.

Supreme Court of Missouri, En Banc.

April 15, 2008.

Christopher M. Murphy, Michael A. Pope, McDermott, Will & Emery, LLP, Chicago, IL, John F. Murphy, Lori R. Schultz, Shook Hardy Bacon, LLP, Taylor Fields, Fields & Brown, Kansas City, Russell S. Bonds, Litigation Counsel, Atlanta, GA, for Relator.

Ralph K. Phalen, Kansas City, Ben Barnow, Chicago, IL, for Respondent.

Ann K. Covington, Dan H. Ball, Elizabeth C. Carver, Bryan Cave, LLP, St. Louis, Hugh F. Young, Jr., Reston, VA, Amicus Curiae for Product Liability Council, Inc.

WILLIAM RAY PRICE, JR., Judge.

I. INTRODUCTION

Diana Pennington alleges that Coca-Cola made affirmative misrepresentations and omitted material information regarding the types of artificial sweeteners used in fountain Diet Coke in violation of section 407.025.¹ At Pennington's request, the circuit court certified the lawsuit as a class action. In its petition for a writ of prohibition, Coca-Cola argues that the circuit court abused its discretion when it certified an overly broad and indefinite class. This Court issued a preliminary writ, which we now make absolute.

II. FACTUAL AND PROCEDURAL HISTORY

In March 2004, Diana Pennington filed the underlying action against Coca-Cola in the Circuit Court of Jackson County. Pennington claims that Coca-Cola employed a deceptive marketing scheme that misled consumers into believing that fountain Diet Coke is the same product as bottled Diet Coke in violation of section 407.025.1.² Since 1984, fountain Diet Coke has been sweetened with a blend of aspartame and saccharin while bottled Diet Coke has been sweetened exclusively with aspartame. Pennington contends that she and many other consumers would not have purchased fountain Diet Coke if they had known it contained saccharin. She further contends that the deception, itself, resulted in irreparable harm.

In her motion for certification, Pennington proposed the following class definition:

All individuals who purchased for consumption and not resale fountain diet Coke in the State of Missouri after March 24, 1999 through the date of this order. Excluded from this Class are employees, officers, and directors of Defendant.

She offered no estimate on the potential size of this proposed class. The circuit court adopted the proposed class definition and certified the class action.

Coca-Cola subsequently filed for permission to appeal the certification order under Rule 52.08(f). The court of appeals denied Coca-Cola's request. Coca-Cola then filed a petition for a writ of prohibition with this Court, and we issued a preliminary writ.

III. ANALYSIS

A. Writ of Prohibition

Pennington argues that the interlocutory appellate process authorized by section 512.020 and Rule 52.08(f) affords adequate relief and, thereby, precludes Coca-Cola from resorting to the writ of prohibition. While the statute and the rule authorize a new interlocutory appeal regarding class certification, they do not deprive this Court of its Article V, section 4.1 power to "issue and determine original remedial writs."

"The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists." Riverside-Quindaro Bend Levee Dist. v. Intercont'l Eng'g Mfg., 121 S.W.3d 531, 532 (Mo. banc 2003); see also Rule 81.01. In 2004, the General Assembly amended section 512.020 to permit interlocutory appeals of class action certification orders. That section states, in pertinent part:

Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any:

. . .

3. Order granting or denying class certification provided that: (a) The court of appeals, in its discretion, permits such an appeal; and (b) An appeal of such an order shall not stay proceedings in the court unless the judge or the court of appeals so orders.

. . . .

(emphasis added). The Court amended Rule 52.08 to incorporate this new appellate review. The amended rule provides, in pertinent part:

An appellate court may permit an appeal from an order of a circuit court granting or denying class action certification under this Rule 52.08 if a petition is timely filed as provided in Rule 84.035. . . .

Rule 52.08(f) (emphasis added). Of the five grounds from which appeals can be taken under section 512.020, an order granting or denying class certification is the only ground for which the General Assembly allows discretion. Thus, section 512.020 and Rule 52.08(f) do not permit an appeal of certification orders as of right; they merely create the potential for an appeal.

If the court of appeals permits an appeal, the case is then pending in that court and is subject to transfer to the Supreme Court under Rule 83.³ If the court of appeals does not permit an appeal, the case never comes before that court, and, consequently, there is nothing to transfer from the court of appeals.⁴ The certification order remains in force as if the aggrieved party did not seek permission to appeal. At that point, the only alternative left to the aggrieved party is to petition this Court for a writ of prohibition directed at the circuit court.⁵ See 17 DANIEL P. CARD II & MARK G. ARNOLD, MISSOURI PRACTICE Civil Rules Practice section 81.01-5A (3d ed. Supp. 2007-2008). This Court has repeatedly held that " `prohibition may be appropriate to prevent unnecessary, inconvenient, and expensive litigation.'"⁶ Union Planters, 142 S.W.3d at 735 (quoting State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001)); see also State ex rel. Am. Family Mut. Ins. Co. v. Clark, 106 S.W.3d 483, 486 (Mo. banc 2003).

Here, Coca-Cola petitioned the court of appeals to review the circuit court's certification order. The court of appeals did not grant leave to appeal. Thus, there was no case pending in the court of appeals. Coca-Cola properly invoked this Court's power to grant a remedial writ directed at the circuit court under Article V, section 4.1.

B. Standard of Review

"`Determination of whether an action should proceed as a class action under Rule 52.08 ultimately rests within the sound discretion of the trial court.'" Union Planters, 142 S.W.3d at 735 (quoting Am. Family, 106 S.W.3d at 486). A circuit court "abuses its discretion if `its order is clearly against the logic of the circumstance, is arbitrary and unreasonable, and indicates a lack of careful consideration.'" State ex rel. Ford Motor Co. v. Manners, 239 S.W.3d 583, 586-87 (Mo. banc 2007) (quoting State ex rel. Ford Motor Co. v. Messina, 71 S.W.3d 602, 607 (Mo. banc 2002)).

C. Class Definition

Class actions are designed to provide an "economical means for disposing of similar lawsuits" while simultaneously protecting defendants from inconsistent obligations and the due process rights of absentee class members. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 402-03, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). Although the express elements for class action certification are designed to accomplish these goals, courts must not forget that the underlying question in any class action certification is whether the class action device provides the most efficient and just method to resolve the controversy at hand, all things considered.

Class actions brought under the Merchandising Practices Act are governed by section 407.025.3 and Rule 52.08. All class actions must satisfy the following four elements:

(1) the class is so numerous that joinder of all members is impracticable, (2) 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.

Rule 52.08(a) (emphasis added). Neither the statute nor the rule explicitly mentions proper class definition. However, such a requirement clearly underlies each of the mandatory elements for certification. See Oshana v. The Coca-Cola Co., 225 F.R.D. 575, 580 (N.D.Ill.2005), aff'd, 472 F.3d 506 (7th Cir.2006); 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE: CIVIL section 1760 (3d ed. 2005). Moreover, a properly defined class is necessary to realize both the protections and benefits for which the class action device was created. See Dale v. DaimlerChrysler Corp., 204 S.W.3d 151, 177-78 (Mo.App.2006); Oshana, 225 F.R.D. at 580; Ad Hoc Comm. to Save Homer G. Phillips Hosp. v. City of St. Louis, 143 F.R.D. 216, 219 (E.D.Mo.1992). "Before considering the criteria established by [section 407.025.3 and Rule 52.08, therefore,] it is first necessary to determine whether the class exists and is capable of legal definition." Vietnam Veterans Against the War v. Benecke, 63 F.R.D. 675, 679 (W.D.Mo.1974). If a class is not properly defined, the circuit court must deny certification.

1. Overbroad Classes

A class definition that encompasses more than a relatively small number of uninjured putative members is overly broad and improper. See Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970); Pagan v. Dubois, 884 F.Supp. 25, 28 (D.Mass.1995); Vietnam Veterans, 63 F.R.D. at 681. That being said, a putative class may initially include members who could not have brought the underlying action in their own name. In that circumstance, the class definition may be modified consistent with the precepts of section 407.025.3 and Rule 52.08 in order to remove the uninjured putative members.⁷ See Davoll v. Webb, 194 F.3d 1116, 1146 (10th Cir.1999); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir.1984); Pagan, 884 F.Supp. at 28. If, after such...