On August 14, 2012, Appellants United Telephone Company of Ohio (“UTO”) and Sprint filed their Merit Brief in Stammco v. United Tel. Co. of Ohio, Ohio Supreme Court Case No. 2012-0169. 

UTO and Sprint’s proposition of law at issue in the appeal is this:

“A trial court does not abuse its discretion by evaluating the merits of the plaintiffs' claims when considering class?certification.”

In support of this proposition, UTO and Sprint make four primary arguments.

First, appellants urge the Court to follow the U.S. Supreme Court’s recent decision in Wal-Mart rejecting the notion that merits issues cannot be considered at the class certification stage. 

Appellants assert that Ohio courts have for decades misunderstood Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974),toprohibit any consideration by the trial court of merits issues when ruling on class certification.  Based on Eisen, the Ohio Supreme Court ruled in Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 233 (1984) that class certification "does not go to the merits." Id.  (Appellant’s Brief, at 16.)  Since then, Appellants argue, Ohio courts have mistakenly—and repeatedly—cited Ojalvo, Eisen, or both, as barring any consideration of merits issues at the class certification stage.

But, appellants argue, in the recent Wal-Mart decision, the U.S. Supreme Court rejected once and for all Ojalvo's reading of Eisen “and with it the mistaken notion that merits issues have nothing to do with class certification.” (Id. at 17.)  Rather, the Wal-Mart Court recognized that consideration of the merits (i.e. consideration of what the law requires plaintiffs to prove, and whether that can be proven for all class members in one stroke) is both appropriate and necessary.  (Id.)

Thus, appellants assert, the Sixth District Court of Appeals should have followed the reasoning of Wal-Mart—and not Eisen or Ojalvo—and affirmed the trial court’s consideration of certain merits issues in making its decision to deny class certification.

Second, appellants make the fact-specific argument that the trial court properly considered certain merits issues as each of these merits issue impacted whether the Rule 23 requirements were satisfied.

Third, appellants assert that the class definition proposed by Appellees is flawed. Appellants cite the trial court’s concern that determination of “consent” and “authorization” for certain charges would not permit class members to be identified with a reasonable amount of effort.  UTO’s records, for example, would not show whether customers received charges they claim were “not authorized,” or whether in fact any particular charge was “not authorized” by the customer.

Finally, appellants assert that from a factual perspective, there are no common issues of law or fact, individualized issues predominate, the class is unmanageable, and the Plaintiffs lack standing because the named Plaintiffs did not receive or pay certain charges included the class definition.

Stay tuned for further coverage of the Ohio landscape as these important cases continue to make their way through Ohio’s highest court.