In March of this year, Blawgletter invoked Chief Justice Marshall’s dictum about the power to tax as the power to destroy in the context of Texas Supreme Court decisions on class actions:
Blawgletter doesn’t see a new day dawning for class actions in the Lone Star State. So long as the Supreme Court continues to tax class cases with the delays and uncertainties of interlocutory review, Rule 42 will lay in the ruins it has become. The power to tax involves the power to destroy. Indeed.
Today the court proved our failure to "see a new day dawning for class actions in the Lone Star State" in spades. The unanimous nine justices reversed affirmance of an order certifying a statewide class. The class consisted of consumers whom Best Buy charged a "restocking fee" for the privilege of returning merchandise. The court held, per curiam, that Best Buy’s hopes of showing that some class members knew about the restocking fee or that some planned to use the goods for awhile and then take them back for a full refund precluded class certification. Best Buy Co., Inc. v. Berrera, No. 07-0028 (Tex. Nov. 30, 2007) (per curiam) (reversing Best Buy Co., Inc. v. Berrera, 214 S.W.3d 66 (Tex. App. — Corpus Christi 2006)).
The court reaches the outcome by focusing not on what the plaintiffs claim and how they will present their case but on "the individualized inquiry [that] Best Buy seeks". The solicitousness for defendants indeed explains why Ms. Berrera lost. So long, apparently, as a defendant makes a colorable argument for an "individualized inquiry" of some kind, individual issues will predominate over common ones, rendering the case uncertifiable under Rule 42 of the Texas Rules of Civil Procedure.
Since Sw. Ref. Co. v. Bernal, 22 S.W.3d 425 (Tex. 2000), plaintiffs have lost 14 out of 15 class action appeals. The sole exception? A case by the state attorney general. But even he had to start over in the trial court. See "Texas in Class of Its Own".
Indeed, we struggle to imagine a case that will pass Rule 42 muster if Best Buy can’t. For going on seven years, the court has provided only negative guidance to bench and bar — telling them that they messed up but never explaining (except in the AG’s case) how they could fix the problems next time.
The only good news? That the Texas Supreme Court will allow just as many class certifications under Rule 42 as federal courts permit under Rule 42 of the Federal Rules of Civil Procedure — a rule that deals with the entirely different subject of consolidation and separate trials. In other words, the court will okay exactly zero.
We hope they prove us wrong.