Sangwin v. Montana BCBSSangwin v. Montana BCBS
Lead Opinion
delivered the Opinion of the Court.
¶1 Steve Sangwin is an employee of the State of Montana and a qualified subscriber and beneficiary of the State of Montana Employee Benefits Plan (Plan). Blue Cross and Blue Shield of Montana, Inc. (BCBS) administers the Plan. McKinley Sangwin, the daughter of Steve Sangwin and Amy Sangwin Wicks, is also a beneficiary under the Plan. This case arises out of a dispute over the denial of a preauthorization request for a medical procedure for McKinley on the grounds that the procedure was “experimental for research.” The State appeals the order of the Eighth Judicial District Court, Cascade County, granting the Sangwins’ motion for class certification. We affirm the court’s order defining the class, but reverse and remand with respect to the question certified for class treatment.
ISSUES
¶2 A restatement of the issues on appeal is:
¶3 1. Did the District Court abuse its discretion in certifying the class
¶4 2. Did the District Court abuse its discretion in certifying the class under Rule 23(b), Montana Rules of Civil Procedure, and specifying for class treatment the question of whether the State breached its contract of insurance with the plaintiffs?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Steve Sangwin is a teacher at the Montana School for the Deaf and Blind in Cascade County, Montana. As an employee of the State, Steve is a qualified subscriber and beneficiary of the Plan. Steve and Amy’s daughter, McKinley, is also a beneficiary under the Plan. McKinley was diagnosed with a severe degenerative disk disease, and when she was sixteen years old, her physicians recommended that she undergo artificial disk replacement surgery. The Sangwins requested preauthorization for the procedure from BCBS, the . Plan administrator. BCBS denied the request in an October 8, 2009 letter and explained that, because McKinley was a minor, BCBS considered the operation “investigational.” The Plan expressly excluded investigational procedures. The letter contained a reference to the exclusions and limitations section of the Employee Benefits Summary Plan Dоcument, which stated: .“The following services and expenses are not covered: Services or procedures that are experimental procedures, as defined in Chapter 9, which are for research.”
¶6 The Sangwins appealed the decision to the BCBS Medical Review Staff. In a December 8, 2009 letter, BCBS explained that the Medical Review Staff and Associate Medical Director had reviewed the documentation related to the preauthorization request and had decided to uphold the original denial. The Associate Medical Director further clarified that artifiсial disks were not Food and Drug Administration approved for patients under the age of 18. The Sangwins then filed an appeal with the State of Montana. After a meeting of the Health Care and Benefits Division appeals committee on May 6,2010, the State upheld the denial, stating that there was “no
¶7 On June 8, 2010, the Sangwins initiated this action by filing a complaint in the Eighth Judicial District Court, Cascade County. The Sangwins filed an amended complaint in November 2010 and set forth five counts. The only relevant count for the purposes of this appeal is the request for certification of a class action. The Sangwins alleged that McKinley’s artificial disk replacement surgery was not experimental or for research. They further alleged that BCBS and the State “have been denying the claims of participants and beneficiaries based on the experimental exclusion for research for years and years when the surgeries and other procedures were in no way meant for research and when, at best, the experimental exclusion for research is ambiguous and must be construed against Defendants.” The Sangwins defined class members as “other participants and/or beneficiaries of any such Plan in Montana which have had their employee benefits denied by the State of Montana based on the experimental exclusion for research” in the past eight years.
¶8 On September 20,2012, the District Court granted the Sangwins’ motion for class certification. On November 23, 2012, the District Court entered an order defining the class as:
“All persоns who were participants, subscribers and/or beneficiaries of the State of Montana Employee Health Plan, including the State of Montana’s Blue Cross Blue Shield Managed Care Plan, the Traditional Indemnity Plan and any other health plan affiliated with the State of Montana, who have had medical benefits denied by BCBS and/or the State of Montana based on the contention that the benefits were experimental, investigational, unproven, or not generally acceptable medical practice under the language of the State of Montana Employee Benefits Summary Plan Document unless such medical benefits were ‘for research’ from January 1, 2003, through December 18, 2011. The class includes those individuals whose claims were denied prior to medical benefits being rendered as well as those individuals whose claims were denied after the medical benefits were rendered.”
The District Court certified four claims for class treatment, including
¶9 On September 19,2012, the District Court granted the Sangwins’ motion for partial summary judgment and determined the Sangwins could pursue general tort damages against the State if they prevailed on their claim for breach of the covenant of good faith and fair dealing. That ruling is not subject to this interlocutory appeal. BCBS filed its notice of appeal on November 28, 2012, but later entered into a settlement with the Sangwins. BCBS is therefore not a party to this appeal. This being so, of the four issues certified for class treatment, the sole issue remaining so certified is whether the State breached its сontract. The State filed its notice of appeal on December 6, 2012. The State challenges the District Court’s order certifying the class.
STANDARD OF REVIEW
¶10 We review a district court’s decision on a motion for class certification for an abuse of discretion. Chipman v. N. W. Healthcare Corp.,
DISCUSSION
¶11 1. Did the District Court abuse its discretion in certifying the class under Rule 23(a), Montana Rules of Civil Procedure?
¶12 The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend,_U.S._,_,
¶13 The propriety of a class action is governed by Rule 23 of the Montana Rules of Civil Procedure. Because the Montana version of Rule 23 is identical to the corresponding federal rule, federal authority on the issue of class certification is instructive. Chipman, ¶ 43. Rule 23(a) sets forth four prerequisites necessary to sustain a class action:
(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.
¶14 The party seeking certification bears the burden of establishing each element of Rule 23(a). Chipman, ¶ 43 (citation omitted). Failure to establish the requisite elements is fatal to class certification. Chipman, ¶ 43. In addition to satisfying the requirements of Rule 23(a), a party must satisfy at least one of the provisions of Rule 23(b). M. R. Civ. P. 23(b).
¶15 When deciding whether to certify a class, a district court should not assess any aspect of the merits unrelated to a Rule 23 requirement. Chipman, ¶ 44. It “may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Comcast Corp.,_U.S. at_,
¶16 In evaluating the Rule 23 requirements, the District Court properly looked beyond the pleadings to the extent necessary to
A. Rule 23(a)(l)-Numerosity
¶17 The State does not dispute that the number of Plan participants, subscribers, or beneficiaries denied preauthorization requests for procedures that were allegedly experimental, investigational, unproven, or not generally acceptable meets the numerosity requirement. Rule 23(a)(1) requires a proposed class to be “so numerous that joinder of all members is impracticable.” “[Pjlaintiffs must present some evidence of, or reasonably estimate, the number of class members.” Diaz v. Blue Cross & Blue Shield,
B. Rule 23(a) (2)-Commonality
¶18 The Stаte does not dispute that the commonality requirement is met. The element of commonality requires “questions of law or fact common to the class.” M. R. Civ. P. 23(a)(2). Though the requirement has historically placed a relatively low burden on plaintiffs, Jacobsen, ¶ 31, the U.S. Supreme Court “significantly tightened the commonality requirement” in Wal-Mart. Chipman, ¶ 47. The claims of class members and class representatives “must depend upon a common contention” that is “of such a nature that it is capable of classwide resolution,” “mean[ing] that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at_,
¶19 The District Court determined that the class members raised common questions of fact and law. The District Court identified both
¶20 We conclude that the court correctly found that the class members are connected by the denial of a preauthorization request based upon the same exclusion, and that this common connection satisfies the commonality requirement. For the reasons set forth below, however, we do not agree that there exists a predominant question of whether the denial was wrongful.
C. Rule 23(a)(3)-Typicality
¶21 To satisfy the typicality element, a plаintiff must demonstrate that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” M. R. Civ. P. 23(a)(3). The typicality requirement is designed to ensure that the interests of the named plaintiffs align with the interests of the class members, “the rationale being that a named plaintiff who vigorously pursues his or her own interests will necessarily advance the interests of the class.” Mattson v. Mont. Power Co.,
¶22 The District Court concluded the Sangwins successfully established typicality. It was irrelevant to the District Court that McKinley had surgery despite the preauthorization denial because the
¶23 The State argues that the Sangwins mistakenly equate commonality with typicality, and that the facts behind the Sangwins’ claims are unique. Specifically, it notes that the Sangwins decided to go forward with treatment and incur medical bills, presumably unlike many potential plaintiffs, and that McKinley was the only underage patient for whom coverage was sought for implanting artificial intervertebral discs from 2003 to 2010. The State argues no typicality exists because the procedures denied by BCBS varied greatly and some denials were made properly. According to the State, this requirement is not met because each denial will require individual review.
¶24 The Sangwins contend “[t]he State has simply ignored the law on typicality under almost identical facts,” including our decision in Diaz. The Sangwins acknowledge that facts vary among the class members. For example, the amount of damages, the desired procedure, and the timing of the denial inevitably vary. However, they argue that the Sangwins had the same dealings with the State as the putative class members, and that they all were wrongly denied benefits under the same exclusion, an exclusion the State misconstrued and misapplied in the same manner for each claim. The Sangwins argue typicality is not destroyed by the individual assessment of damages or by some variation between the claims of the Sangwins and the class members. ¶25 In its reply brief, the State counters that the Sangwins mistakenly rely on Diaz when the issues and relief sought differ. The State again argues that the Sangwins’ decision to proceed with the surgery and incur medical bills destroys typicality. According to the State, the District Court did not engage in the required “rigorous analysis.”
¶26 The State misses the point of the typicality requirement by raising issues with the specific facts of the Sangwins’ claim. “Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought.” Hanon v. Dataproducts Corp.,
D. Rule 23(a)(4)-Adequate Representation
¶27 The State does not dispute that this requirement is met. Montana Rule of Civil Procedure 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Adequate representation requires that the named representatives’ attorney is qualified, competent, and able to conduct the litigation, and that the named representatives’ interests are not antagonistic to the class interests. Chipman, ¶ 57 (citation omitted).
¶28 The District Court determined the law firm of Hoyt & Blewett PLLC was qualified and competent counsel. The District Court further determined the Sangwins’ interests were aligned with the class’s interests. We conclude that counsel will adequately representthe class, and that no conflicts exist between the Sangwins and the class members.
¶29 2. Did the District Court abuse its discretion in certifying the class under Rule 23(b), Montana Rules of Civil Procedure, and specifying for class treatment the question of whether the State breached its contract of insurance with the plaintiffs?
¶30 Having determined that the Rule 23(a) prerequisites are satisfied, we now turn our inquiry to Rule 23(b). The District Court determined that the proposed class met the two requirements of Rule 23(b)(3). It is on the basis of the requirements of this rule that we reverse and remand with respect to the certified question.
¶31 Rule 23(b)(3) requires a court to “find[] that the questions of law or fact common to the class members predominate over any questions affecting only individual members.” In addition, a court must find that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” M. R. Civ. P. 23(b)(3). Matters pertinent to these findings include the class members’ interests in individually controlling seрarate actions, the extent and nature of any already existing litigation concerning the controversy, the desirability or undesirability of concentrating the litigation in a particular forum, and likely difficulties in managing a class action. M. R. Civ. P.
¶32 The District Court determined class certification was appropriate because class members may not have the knowledge or resources to bring the claims individually or may be subject to the requirement of exhausting administrative remedies prior to seeking judicial relief. The District Court noted that there was no other litigation concerning the issue, and that a class action suit would be conducive to complex healthcare litigation. After acknowledging the existence of individual issues, such as damages, the District Court concluded that common questions of law or fаct nonetheless predominated because BCBS and the State engaged in systematic conduct and the Sangwins and the class members suffered the same or similar injuries.
¶33 The State argues the District Court failed to make any findings of fact for Rule 23(b)(3) purposes. The State contends that common issues do not predominate because there were 158 temporally different decisions, and preauthorization denials and damages will need to be investigated individually.
¶34 The Sangwins contend that individual calculation of damages should not preclude class determination when common liability issues predominate. They further argue the District Court’s finding was supported by its “determination that the State’s systematic conduct of misconstruing the exclusion and denying claims under the same exclusion is the predominant issue of law and fact and that Sangwin and every putative plaintiff suffered a similar injury.” The State counters that the District Court only superficially analyzed the predominance fаctors and failed to meet the federal standard set forth in Wal-Mart and Comcast.
¶35 As indicated, the Sangwins contend the court properly certified the question of whether the State breached its contract with the plaintiffs, and that common liability issues predominate. In this connection, they maintain in their response brief that “[i]f individuals’ claims were properly denied because the medical service was ‘for research,’ those members will not be a part of the class specially defined by the [District Court.]”
Otherwise stated, only those individuals whose requested services were not for research will remain in the class, and the court can then decide if the denial of services to these persons constituted a breach of contract. Herein lies the problem with the question certified by the
¶36 In order to make the determination of whether an individual’s claims were properly denied, each claim-together with its underlying documentation including the Consent Form and supporting affidavits-will have to first be separately analyzed. As the Sangwins concede, this will have to be done before there can be a determination as to whether the individual will be part of the class, and it will clearly have to be done before there can be an assessment of whether the State breached its contract with that individual.
¶37 Because factual questions must be answered on an individual basis before the plaintiffs will be in a position to establish liability, the predominance requirement under Rule 23(b)(3) is not met. In re Bank of Am. Home Affordable Modification Program (HAMP) Contract Litig.,
¶38 This is not to say that the class itself was improperly certified. Rather, it is the formulation of the certified issue that results in individual issues predominating over common questions. There is seemingly one common issue of law critical to the entire class, and that is the construction of the State Plan’s exclusion language. The construction of the language in the exclusion and definitions sections of the Plan may well present a common issue of law that would be appropriate for class consideration. However, it is not the province of this Court to formulate the certified question.
¶39 For the foregoing reasons, we decline to disturb the District
CONCLUSION
¶40 Affirmed in part and reversed in part.
Notes
In December 2011, the State revised its Employee Benefits Summary Plan Document to eliminate the phrasе “which are for research.”
Concurrence Opinion
concurring in part and dissenting in part, joined by JUSTICE RICE.
¶41 The Court reverses the District Court’s certification of a class claim-namely, “[wjhether the State of Montana breached its contract’-because this claims fails to satisfy the predominance requirement of Rule 23(b)(3). Opinion, ¶ 36.1 agree with this holding. Our conclusion that “factual questions must be answered on an individual basis before the plaintiffs will be in a position to establish liability,” Opinion, ¶ 34, is correct and is fatal to class certification under Rule 23(b)(3)’s requirement “that the questions of law or fact common to the class members predominate over any questions affecting only individual members.”
¶42 The Court, however, affirms the District Court’s certification of the class under Rule 23(a). Opinion, ¶ 36.1 dissent from this holding. I do not agree that the requirements of commonality and typicality have been met, and I also disagree with our conclusion that class certification is appropriate before a plausible сommon question of law or fact has even been identified. Although the Court reverses the District Court for certifying the question of whether the State breached its contract with the proposed class members, finding that this question “is incapable of being resolved on a classwide basis,” Opinion, ¶ 34, the Court nevertheless determines that commonality has been met because “[ajll class members are connected by the denial of a preauthorization request based upon the same [policy] exclusion,” Opinion, ¶ 19, and that typicality has been met because the Sangwins’ claim “is based on the same legal theory as the proposed class members’ claims,” Opinion, ¶ 26.
¶43 The State’s liability to the Sangwins for insurance benefits “arises from the terms of the insurance contract, and its contractual relationship with its insured.” Farmers Alliance Mut. Ins. Co. v. Holeman,
Treatment, which is considered experimental because it meets one of the following criteria:
1. Prescription drugs not approved by the FDA to be lawfully marketed for the proposed use, and it is not identified in the American Hospital Formulary Service, the AMA Drug Evaluation, or the Pharmacopoeia as an appropriate use.
2. It is subject to review or approval by an institutional review board (meaning that a hospital considered it experimental and put it under review to meet federal regulations, or review is required and defined by federal regulations, particularly those of the FDA or Department of Health and Human Services).
3. It is the subject of an ongoing clinical trial that meets the definition of a Phase 1, 2, or 3 clinical trial set forth in FDA regulations, regardless of whether it’s an FDA trial.
4. It has not been demonstrated through prevailing, peer-reviewed medical literature to be safe and effective for treating or diagnosing the condition or illness for which its use is proposed.
5. The predominant opinion among experts as expressed in the published authoritative literature is that further research is necessary in order to define safety, toxicity, and effectiveness (or effectiveness compared with conventional alternatives), and/or that usage should be substantially confined to research settings.
6. It is not a covered benefit under Medicare as determined by the Centers for Medicare and Medicaid Services (CMMS, formerly HCFA) because it is considered experimental, investigational, or unproven.
*145 7. It is experimental, investigational, unproven, or not a generally acceptable medical practice in the predominate opinion of independent experts utilized by the administrator of each plan.
8. It is not experimental or investigational in itself pursuant to the above and would not be medically necessary, but it is being provided in conjunction with the provision of a treatment, procedure, device, or drug which is experimental, investigational, or unproven.
¶44 McKinley Sangwin, a beneficiary under the Plan, was denied preauthorization because she was a minor and the procedure for which she sought coverage-artificial disc replacement-was considered experimental. It was explained to the Sangwins that artificial discs were not FDA-approved for patients under 18 and that the procedure was therefore excluded from coverage. The denial letter stated: “Per BCBSMT medical policy, the patient must be greater than 18 years of age and skeletally mature to qualify for benefits. Therefore, this is considered investigational. There are significant questions remaining about potential long-term complications in such a young patient.”
¶45 Of the 158 claims that BCBS denied because they were for experimental procedures, McKinley’s claim is the only one denied for a minor seeking an artificial disc replacement. Dr. M.E. Berner, BCBS’s Medical Director, provided his affidavit setting forth the variety of services, supplies, drugs, or devices that were denied because they were considered to be investigational:
Clinical Trial - Chemotherapy (MRI-Echo, ECG, CT Scan, Labs, UA); PET Scan (breast cancer, ovarian cancer, renal cell cancer, prostate cancer, bladder cancer, lung nodules); Ketamine; Gluco Watch; Hyperbaric Oxygen Pressurization; Mercury Detoxification and Chelatiоn Therapy; Endocinch Procedure (gastroesophageal reflux disease); Group Therapy and Craniosacral Therapy; Outpatient Pain Clinic; Lengthen Roux Limb of Small Intestine; Cool Touch Laser Treatment (acne); Botox injections (myofacial pain syndrome, headache, migraines, neck pain, neck spasm, whiplash, back pain, neuromuscular pain, Raynaud’s disease, excessive salivation); Orthotripsy ESW (Plantar Fasciitis); Allergen Specific Food lgG Quantitative or Semiquantitive Testing; Neuromuscular Stimulator; Extracorporeal Shockwave Therapy; Hyperthermic Procedure; IV Therapy with Albumin; F-Scan; gait analysis; Phentermine; NM III 2 Channel Muscular Stimulator (muscle strengthening); Physical Performance Test; L4-5 Anterior Exposure Artificial Disc*146 Placement; Genetic Testing; Computerized Dynamic Posturography; Sclerotherapy; Physical Therapy (chronic pelvic pain syndrome and chronic prostatitis); Laser Treatment (Rosacea); Hormone Pellet Implant; Virtual Colonoscopy; High-Dose Indium-111 (Octreotide) Therapy; Ocular Motor Therapy; BRAV0 pH Study (catheter-free, wireless esophageal monitoring); Neurofeedback; X STOP Procedure; Meniett Device (Menieres disease); Nucleoplasty (Percutaneous Diskectomy) with Fluoroscopic Guidance; Sublingual Immunotherapy; LifeVest Automatic Wearable Defibrillation System; Pulsed Dye Laser Treatments (acne); MRI (breast); Second Radiofrequency Ablation and Travel (ablation of metastatic liver tumors); Avastin (ovarian cancer); Cognitive Therapy; CT Angiogram-Coronary (coronary arteries, atypical chest pain, abnormal stress test); Contrast-Enhanced Computed Tomographic Angiography; Phototherapeutic Keratectomy (PTK) (recurrent corneal erosions); Cervical Disk Replacement; Y-90 Mesenteric Mapping (cancer); Mobile Cardiac Outpatient Telemetry (MCOT) (event monitor); Synvisc Injection (hip joint); Orаl Immunoglobulin Therapy (Norwalk Virus); Rituxan (Lupus); NESS L300 Foot Drop System Lower Extremity Stimulator Unit (muscle strengthening); Laparoscopic Cryoablation (renal mass); B-39 Study (breast cancer); Reclast (osteoporosis); Internal Radiation Therapy; Continuous Passive Motion Device (shoulder); Implantable Neurostimulator (occipital neuralgia); Thermography (breast screening); Posture Pump; Biofeedback (bladder outlet obstruction); Steriotactic Radiosurgery (metastic phyllodes tumor of breast); Remicade (arthritis); Magnetic Treatment (incontinence); Collection & Storage of Peripheral Blood Stem Cells (brain tumors); X-Stop (distraction/decompression device); Stereotactic Body Radiation Therapy (metastatic lung tumors); Artificial Disc; Excimer Laser Treatment (vitiligo); Avastin; BRCA Testing (genetic testing); Zometa (bisphosphonates); IMRT (radiation therapy); Vest Compression Device/Supplies (secretions and upper respiratory infection); Neuromuscular Electrical Stimulation Device (muscular weakness); Stereotactic Surgery (brain surgery to treat melanoma); BEST Clinical Trial; Sublingual Allergy Drops; IMRT (breast); Avastin and Abraxane (ovarian cancer); Transcatheter Closure of PFO; Stem Cell Transplant; Cetuximab (metastatic cholangiocarcinoma); Pharmacogenetic Testing; Occipital Nerve Stimulator.
¶47 Here, although the District Court and this Court conclude that there exists “a uniform course of conduct by the State and BCBS in denying benefits based upon the ‘experimental for research’ exclusion,” Opinion, ¶ 19, alleging that the State uniformly applied a provision of the insurance contract, absent anything more, does not create a common question of law or fact. A common question of law or fact is not generated merely by the Sangwins’ allegations that they are part of a group of insureds who have had a particular contract provision applied adversely to them. Moreover, the Sangwins’ allegation that they were wrongfully denied coverage does not advance their claim that a class action is appropriate. No legal theory, programmatic exclusion, policy, pattern, practice, or conduct that could establish a wrong or liability to the class as a whole has been alleged. The Sangwins’ contention is indistinguishable from any insured who
¶48 A review of the Plan’s applicable policy provisions and the reasons for denials clearly demonstrates that the language of the “experimental”-exclusion provision is both detailed and factually driven, and that the denials of the 158 claims were based on assessments of each individual illness and the type of procedure for which coverage was sought. The Court recognizes this fact in observing that, “[i]n order to make the determination of whether an individual’s claims were properly denied, each claim-together with its underlying documentation including the Consent Form and supporting affidavits-will have to first be separately analyzed.” Opinion, ¶ 33. Yet, contrary to the requirement of a “rigorous analysis,” Comcast Corp. v. Behrend, 569 U.S._,
¶49 The facts of this case are distinguishable from our prior cases in which we have held that a class action is appropriate. See McDonald v. Washington,
¶50 In all of these cases, there was a question of law or fact common
¶51 I understand the desire of the Plaintiffs to have this matter proceed as a class action. The denial of benefits for an admittedly successful medical procedure on behalf of a child cries out for a remedy and a method to prevent future hardship. Such a plea, however, without anything more than a denial under a particular policy exclusion, does nothing to further the requirements of Rule 23(a). In Falcon, for example, the Supreme Court acknowledged that “racial discrimination is by definition class discrimination.”
[T]he allegation that such discrimination has occurred neither determines whether a class action may be maintained in accordance with Rule 23 nor defines the class that may be certified. Cоnceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion on*150 discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims. For respondent to bridge that gap, he must prove much more than the validity of his own claim. Even though evidence that he was passed over for promotion when several less deserving whites were advanced may support the conclusion that respondent was denied the promotion because of his national origin, such evidence would not necessarily justify the additional inferences (1) that this discriminatory treatment is typical of petitioner’s promotion practicеs, (2) that petitioner’s promotion practices are motivated by a policy of ethnic discrimination that pervades petitioner’s Irving division, or (3) that this policy of ethnic discrimination is reflected in petitioner’s other employment practices, such as hiring, in the same way it is manifested in the promotion practices.
Falcon,
¶53 In any event, it is the responsibility of the trial court to determine whether all requirements of Rule 23(a) and (b) have been satisfied. Opinion, ¶ 15 (citing Comcast,
¶54 Therefore, although I agree with the Court’s holding that Rule 23(b)(3)’s predominance requirement is not met here, I disagree with our conclusion that the commonality and typicality requirements of Rule 23(a)(2) and (a)(3) have been satisfied. While the Court remands “to allow the District Court to consider whether a particular issue may be certified for which individual questions would not predominate” pursuant to Rule 23(b)(3), Opinion, ¶ 36,1 believe the District Court necessarily must determine first, as a threshold matter, whether there is a question оf law or fact common to the class under Rule 23(a)(2) and whether the Sangwins’ claim is typical of the class claims under Rule 23(a)(3). I would reverse the District Court’s certification order in its entirety and remand accordingly.
¶55 I concur and dissent.
Other than breach of contract, I have been unable to discern any other legal theory offered by the Sangwins.
See also Falcon,