Cite as People of Rull ex rel. Ruepong v. M/V Kyowa Violet,12 FSM Intrm. 192 (Yap 2003)

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CIVIL ACTION NO. 2003-3002

Decided: October 20, 2003

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APPEARANCES:

HEADNOTES

Admiralty

In maritime law an allision is the sudden impact of a vessel with a stationary object such as an anchored vessel or a pier or a submerged reef. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 196 n.1 (Yap 2003).

Civil Procedure – Class Actions

The plaintiffs bear the burden of showing that all the requirements for a class action have been met. Under Rule 23, all class actions must satisfy all four prerequisites in section (a), and any one of the three subsections in section (b). Thus parties invoking Rule 23 must show that the section (a) prerequisites – numerosity, commonality, typicality, and adequacy of representation – for a class action have been satisfied, and then a subsection (b)(3) class action can be maintained only if the court finds that the class members' common questions of law or fact predominate and that a class action is superior to other methods of adjudication. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 196 (Yap 2003).

Civil Procedure

Although the court must first look to FSM sources of law rather than begin with a review of cases from other courts, when the court has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 196 n.2 (Yap 2003).

Civil Procedure – Class Actions

For a class action to be certified under subsection (b)(3), there must not only be questions of law or fact common to the class, but the court must find that the question of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 197 (Yap 2003).

Civil Procedure – Class Actions

Both the commonality prerequisite and the predominance requirements for a class action are met when the plaintiffs seeking class certification do not allege any individual personal injuries and all of the damages sought are economic damages, and when the liability question is common and central to all claimants and the causation and damages questions are also common to the class members because all class members' damages are based on their alleged loss of their subsistence use of the natural

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marine resources. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 198 (Yap 2003).

Civil Procedure – Class Actions

To meet the predominance requirement, it is not enough that the claims arise out of a common nucleus of operative fact. Instead the common questions must be central to all claims. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 198 (Yap 2003).

Civil Procedure – Class Actions

A class action is superior to other available methods when no realistic alternative exists. The superiority requirement does not require that all issues be common to all parties, merely that resolution of the common questions affect all or a substantial number of the class members. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 198 (Yap 2003).

Civil Procedure – Class Actions

To satisfy the typicality prerequisite, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 199 (Yap 2003).

Civil Procedure – Class Actions

When there are no personal injuries alleged and all claimed economic damages are for subsistence use of the natural marine resources and the difference between the subsistence resources is not so great that common issues would not predominate, the named class representatives, who have subsistence economic interests in the relatively small area similar to other class members' interests, are typical of the class members' interests. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 199 (Yap 2003).

Evidence – Judicial Notice

The court may take judicial notice that a person's status as a chief implies his residence within the area of which they are chief. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 199 (Yap 2003).

Civil Procedure – Class Actions

Because court decisions are mandated to be consistent with the social configuration of Micronesia, persons holding traditional leadership positions have been named representatives in class actions in the State of Yap. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 199 (Yap 2003).

Civil Procedure – Class Actions; Constitutional Law – Due Process

To satisfy constitutional due process concerns, absent class members must be afforded adequate representation before entry of a judgment which binds them. Resolution of two questions determines legal adequacy: 1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and 2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? The second part of this question may also be stated in the affirmative as that it must appear that the class representatives will vigorously prosecute the interests of the class through qualified counsel. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 199 (Yap 2003).

Civil Procedure – Class Actions

When no conflicts of interest have been brought to the court's attention and the court has already determined that the named plaintiffs are class members who share the other members' interests

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in an oil spill case and when any doubts the court would have had concerning counsel's qualifications and resources to vigorously pursue the matter were dispelled by the plaintiffs' counsel's recent association with a certified proctor in admiralty and plaintiff's counsel in other oil spill cases including the well-known Exxon Valdez spill, the plaintiffs have satisfied the adequacy of representation prerequisite. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 199-200 (Yap 2003).

Civil Procedure – Class Actions

Courts are accorded broad discretion in determining whether a suit should proceed as a class action, and will not be overruled absent abuse of discretion. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 200 (Yap 2003).

Civil Procedure – Class Actions

Each class, or subclass, must have a named class representative(s) of its own. Each class or subclass must be represented by someone who claims the same injuries as the absent class or subclass members, otherwise the typicality requirement is not met and the class or subclass cannot be certified. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 200 (Yap 2003).

Civil Procedure – Class Actions

When all the named representatives are members of one class they cannot be named class representatives of a second class. Certification of the second class must thus be denied. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 200 (Yap 2003).

Civil Procedure – Class Actions

When a plaintiff class has been certified, the best notice practicable under the circumstances must be given defining membership in the class, stating that it has been certified as plaintiffs in the action, identifying the action and the court it is in, and advising each member that A) the court will exclude the member from the class if the member so requests by a specified date; B) the judgment, whether favorable or not, will include all members who do not request exclusion; and C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel. People of Rull ex rel. Ruepong v. M/V Kyowa Violet, 12 FSM Intrm. 192, 200 (Yap 2003).

*    *    *    *

COURT'S OPINION

DENNIS YAMASE, Associate Justice:

This comes before the court on the defendants' Motion to Deny Class Certification, filed August 15, 2003; the Plaintiffs' Opposition to Defendants' Motion to Deny Class Certification, filed August 15, 2003; the Plaintiffs' Notice of Reference Authorities re Class Certification; the defendants' Reply to Opposition, filed September 1, 2003; the Plaintiffs' Motion for Class Certification, filed October 1, 2003; the Defendants' Opposition to Plaintiffs' Motion for Class Certification, filed October 10, 2003; and the Plaintiffs' Reply to Defendants' Opposition, filed October 17, 2003.

I. Background

This case arises from the M/V Kyowa Violet suddenly running aground on a reef off the coast

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of the main island of Yap on December 26, 2002. This alleged allision¹ resulted in an oil spill. In this suit, the plaintiffs seek economic damages allegedly resulting from this allision and from the resulting oil spill. The plaintiffs are inhabitants of Rull and Gilman municipalities. They ask that this suit be maintained as a class action with Chiefs Andrew Ruepong, Thomas Falgnin, and James Limar as class representatives.

The plaintiffs propose that the following two classes be certified under Civil Procedure Rule 23(b)(3):

1. All residents of Rull and Gilman municipalities who were unable to use the natural resources appertaining to these municipalities following the oil spill from the M/V Kyowa Violet on December 26, 2002, and who, by tradition own the natural resources affected by this oil spill in common with other residents, including but not limited to the reef, the water column, the fish and other marine life, the mangrove groves, and any other affected resources.

2. All residents and members of the unincorporated Rull and Gilman municipalities.

After careful consideration of the parties' submissions and in light of the recently-filed Plaintiffs' First Amended Verified Complaint in Rem and in Personam, the court concludes that Class One should be certified. Certification of Class Two is denied. The plaintiffs may renew their motion for its certification. The court's reasoning follows.

II. Class One Certification

The plaintiffs bear the burden of showing that all the requirements for a class action have been met. Makuc v. American Honda Motor Co., 835 F.2d 389, 394 (1st Cir. 1987).² Under Rule 23, all class actions must satisfy all four prerequisites in section (a), and any one of the three subsections in section (b). Thus parties invoking Rule 23 must show that the section (a) prerequisites ) numerosity, commonality, typicality, and adequacy of representation – for a class action have been satisfied, and then a subsection (b)(3) class action can be maintained only if the court finds that the class members' common questions of law or fact predominate and that a class action is superior to other methods of adjudication. Saret v. Chuuk, 10 FSM Intrm. 320, 321 (Chk. 2001); Lavides v. Weilbacher, 7 FSM Intrm. 591, 593 (Pon. 1996).

The defendants contest only certain parts of the plaintiffs' certification motion. They contend that the plaintiffs do not satisfy the commonality prerequisite and the section (b)(3) requirement that

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the questions of law or fact that pertain to the class members predominate over those questions affecting only individual members. They also assert that the class representatives do not satisfy the typicality requirement and are not adequate representatives of the class.

A. Commonality Prerequisite and the Predominance Requirement

For a class action to be certified under subsection (b)(3), there must not only be "questions of law or fact common to the class," FSM Civ. R. 23(a)(2), but the court must find "that the question of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy," FSM Civ. R. 23(b)(3). The defendants contend that these requirements are not met.

They contend that the court should question whether a class action is appropriate because this is a mass toxic tort accident "where no one set of operative facts establishes liability, no single proximate cause applies to each potential class member and each defendant, and individual items outnumber common issues." Defs.' Opp'n at 3 (Oct. 10, 2003). For this proposition they rely on In re American Med. Sys., Inc., 75 F.3d 1069, 1084 (6th Cir. 1996), and on two cases involving oil spills, Slaven v. BP America, Inc., 190 F.R.D. 649, 657 (C.D. Cal. 2000); Puerto Rico v. M/V Emily S, 158 F.R.D. 9, 13 (D.P.R. 1994), which the defendants assert stand for the principle that class actions should not be certified when different factual proof would be needed on individual questions of causation and damages. The defendants also cite Thomas v. FAG Bearings Corp., 846 F. Supp. 1400, 1404 (W.D. Mo. 1994) and Matoon v. City of Pittsfield, 128 F.R.D. 17, 21-22 (D. Mass. 1989) for the principle that a case is unsuitable for a class action when it appears that it will degenerate into a series of mini-trials.

This case, however, differs significantly from those cited by the defendants. In both American Med. Sys., Inc. and M/V Emily S the classes that sought certification were seeking damages for personal injuries. In American Med. Sys., Inc., the plaintiffs sought nationwide damages for the malfunction of ten different models of medical implants, and the court noted that each product was different, that each plaintiff had a unique complaint and received different information from his treating physician, and that the negligence law to be applied differed in the fifty states, so certification was improper. 75 F.3d at 1085-86.

In M/V Emily S, the purported class plaintiffs consisted of those persons then residing on Puerto Rico's northern coast between Loiza and Dorado during January and February, 1994 who inhaled or were exposed to vapors or odors emanating from oil spilled from the barge Morris J. Berman and who suffered any of a number of different common symptoms as a result. 158 F.R.D. at 12. The M/V Emily S court found that it could not certify this class because the personal injures allegedly suffered stemmed from a number of different compounds which were released in different places over the time of the incident to which a person's susceptibility varied widely and for which the symptoms of exposure had many other possible common causes. Id. at 13-14. The court therefore concluded that "prosecution of a class action for personal injuries in circumstances such as those presented [t]here [wa]s both unwise and contrary to the terms of Rule 23" because the case would degenerate into multiple lawsuits separately tried. Id. at 13.

In both Thomas and Matoon, the court denied certification because while there were common issues of law and fact, the issues of causation of personal injuries and damages varied so widely as to make those cases unsuitable for class actions. The Matoon court held that, while the section (a) prerequisites were met by plaintiffs who allegedly contracted "beaver fever" from contamination of the city's water supply, 128 F.R.D. at 18-19, it was unsuitable as a class action because each of six

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defendants had a different involvement with the problem which made proximate cause with regard to each an individual question as well as individualized personal injury damages, id. at 20-21. Thus the case was too unmanageable as a class action because it was likely to degenerate into a series of individual trials. Id. at 21-22. Thomas, was similar in that it involved damages for personal injuries that resulted from allegedly contaminated groundwater. Class certification was denied because while common questions existed as to whether the defendant released a chemical into the groundwater, the individual issues of causation and damages "so overshadow[ed]" the common issues as "to render a class action unhelpful." 846 F.2d at 1404.

Unlike the cases discussed above, the plaintiffs seeking class certification in the present case do not allege any individual personal injuries. All of the damages sought here are economic damages. The defendants cite one case where the class plaintiffs sought only economic damages, Slaven v. BP America, Inc., 190 F.R.D. 649, 657 (C.D. Cal. 2000). The Slaven court, early in the case, had certified a class of those persons owning real or personal property, or owning an interest in a commercial enterprises, or working in the area, who suffered economic damage from Alaskan crude oil spilled from the ship American Trader on February 7, 1990. Later, the defendants moved for (and had the burden of proving) that the class should be decertified. Id. at 651. The Slaven plaintiff class consisted of numerous subclasses, including commercial fishermen, fish processors and distributors, commercial boat operators, motel and hotel operators, local business owners, and others. Id. at 654. That court concluded that the commonality prerequisite was met because, construing the commonality prerequisite liberally as required, the common issues concerning the defendants' conduct and actions on the day of the oil spill established commonality, but that, since causation and damages varied widely for each subclass (and within the commercial fisherman subclass), the class certification would be maintained for the action's liability phase but the class decertified for causation and damages phases. Id. at 655, 658.

In the present case, the liability question, as in Slaven, is common and central to all claimants. To meet the predominance requirement, "[i]t is not enough that the claims arise out of a common nucleus of operative fact. Instead the common questions must be central to all claims." Matoon, 128 F.R.D. at 20. Furthermore, unlike Slaven, the causation and damages questions in this case are also common to the class members. All class members' damages are based on their alleged loss of their subsistence use of the natural marine resources of Rull and Gilman.

Thus, this case is easily distinguished from the cases the defendants rely upon. It is similar to the famous Valdez, Alaska oil spill where, in the resulting litigation a number of classes were certified. See In re Exxon Valdez, 270 F.3d 1215, 1225 (9th Cir. 2001) (noting that the trial court had certified a commercial fishing class, a Native class, and a landowner class for compensatory damages, plus a mandatory punitive damages class). The court therefore concludes that both the commonality prerequisite and the predominance requirement are met in this case.

The court further concludes that a class action is superior to other available methods. No realistic alternative exists. "A class action is the superior method for managing litigation if no realistic alternative exists." Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234-35 (9th Cir. 1996). "The superiority requirement does not require that all issues be common to all parties, merely that 'resolution of the common questions affect all or a substantial number of the class members.'" Slaven, 190 F.R.D. at 657 (quoting Watson v. Shell Oil Co. , 979 F.2d 1014, 1022 (5th Cir. 1992)). Considering that the plaintiff class may number over 2,000 (thus satisfying numerosity) and that the individual sums may be small, no realistic alternative to a class action exists.

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B. Typicality Prerequisite

The defendants contend that the named representatives do not satisfy the typicality prerequisite. To satisfy the typicality prerequisite, "a class representative must be part of the class and possess the same interest and suffer the same injury as the class members." General Tel. Co. of the S.W. v. Falcon, 457 U.S. 145, 156, 102 S. Ct. 2364, 2370, 72 L. Ed. 2d 740, 749 (1982) (internal quotations omitted). The defendants make essentially the same argument against typicality as they did against commonality and predominance ) that each plaintiff's injuries are so individual that no representative could be typical of the proposed class.

However, just as with the commonality prerequisite and predominance requirement, there are no personal injuries alleged in this action. Only economic damages are claimed. All claimed economic damages are for subsistence use of the natural marine resources. The court does not see the difference between the subsistence resources to be so great that common issues would not predominate. Unlike Slaven, it seems now that the named class representatives, who have subsistence economic interests similar to other class members' interests, are typical of the class members' interests in the relatively small area that is Rull and Gilman.

The defendants also query whether the named representatives are actually residents of Rull and Gilman and therefore members of the class, as they contend, the pleadings and moving papers do not allege their residence in Rull and Gilman. The plaintiffs dispute this and point out that their amended complaint states that all plaintiffs are residents. The court feels it appropriate to take judicial notice that the named representatives' status as chiefs in Rull and Gilman implies their residence within the area of which they are chief. FSM Evid. R. 201(b)(1). Court decisions are mandated to be consistent with the social configuration of Micronesia. FSM Const. art. XI, § 11. The court also notes that persons holding traditional leadership positions have been named representatives in other class actions in the State of Yap. See, e.g., People of Satawal ex rel. Ramoloilug v. Mina Maru No. 3, 10 FSM Intrm. 337, 338 (Yap 2001) (class action brought by people of a Yap municipality as members of an unincorporated association concerning damage to their commonly-owned island of West Fayu). The court therefore concludes that the typicality prerequisite has been met.

C. Adequacy of Representation Prerequisite

Finally, the defendants question whether the class representatives are qualified to represent the class. The defendants state that class representatives must demonstrate membership in the class and that they share the same interest as other class members and that they have the resources to and will vigorously prosecute the action on the members' behalf.

"To satisfy constitutional due process concerns, absent class members must be afforded adequate representation before entry of a judgment which binds them." Hanlon v. Chrysler Corp., 150 F.2d 1011, 1020 (9th Cir. 1998). "Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" Id. The second part of this question has also been stated in the affirmative as: "it must appear that the [class] representatives will vigorously prosecute the interests of the class through qualified counsel." Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir.), cert. denied, 429 U.S. 870 (1976).

No conflicts of interest have been brought to the court's attention. The court has already determined that the named plaintiffs are class members who share the other members' interests. The defendants state that having adequate financial resources to prosecute is one indication of adequacy of representation which the plaintiffs have not addressed. Any doubts the court would have had

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concerning counsel's qualifications and resources to vigorously pursue this matter were dispelled by the plaintiffs' counsel's recent association with, and the pro hac vice appearance of James P. Walsh, Esq., Davis Wright Tremaine LLP, San Francisco, California, a certified proctor in admiralty and a plaintiff's counsel in other oil spill cases including the well-known Exxon Valdez spill.

The court therefore concludes that the plaintiffs have satisfied the adequacy of representation prerequisite.

D. Certification of Class One

It is therefore proper to certify Class One. The court, in its discretion, accordingly determines that this suit shall proceed as a class action. "Courts are accorded broad discretion in determining whether a suit should proceed as a class action," Lavides, 7 FSM Intrm. at 594 (citing Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994)), and "will not be overruled absent abuse of discretion," Makuc, 835 F.2d at 394.

III. Class Two

Plaintiffs also ask certification of a class defined as: "All residents and members of the unincorporated Rull and Gilman municipalities." Since the amended complaint alleges that the residents and members of Rull and Gilman municipalities own and control the natural resources allegedly damaged by the defendants, the court is unsure how this class differs from Class One.

Assuming that it differs, the court could interpret this in either of two ways. It could assume that the plaintiffs mean to include in Class Two only those residents and members who are not included in Class One. Or it could interpret Class One to be a subclass of Class Two, which would necessarily imply that there is another subclass of those not in the Class One subclass. Either way, the problem presented is obvious.

Each class, or subclass, must have a named class representative(s) of its own. Each class or subclass must be represented by someone who claims the same injuries as the absent class or subclass members, otherwise the typicality requirement is not met and the class or subclass cannot be certified. Slaven, 190 F.R.D. at 655-56. The difficulty here is that all the named representatives are members of Class One and therefore cannot be class representatives of "Class Two." Certification of Class Two is therefore denied. Plaintiffs will have until November 28, 2003, to renew their motion to certify Class Two and to name a typical class representative for Class Two.

IV. Notice to Plaintiff Class

Class One having been certified, plaintiffs' counsel shall prepare and have approved as to form by defendants' counsel a notice in both English and Yapese defining membership in Class One, stating that it has been certified as plaintiffs in this action, identifying this action and the court it is in, and advising "each member that (A) the court will exclude the member from the class if the member so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel." FSM Civ. R. 23(c)(2).

The plaintiffs shall submit the proposed notice and a proposed order requiring "the best notice practicable under the circumstances." Id. This order shall include at a minimum, but not be limited to, notice by: frequent, periodic announcements on radio station V6AI over a period of two weeks, publication in at least two issues of The Yap Networker (YNN), the posting of copies in the village

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meeting place in each and every village in Rull and Gilman municipalities, and the posting of copies in all public places in Yap, such as the courthouse, the post office, and the library, where public notices may be posted. Counsel are free to suggest additional methods of notice designed to effect Rule 23(c)(2).

The proposed notice in English and Yapese and the proposed order shall be submitted to the court by November 17, 2003.

V. Conclusion

Certification of Class One is granted. The motion for certification of Class Two is denied, but it may be renewed. The plaintiffs shall prepare the Rule 23(c)(2) notice and order for notice to class members.

¹ In maritime law an allision is "[t]he sudden impact of a vessel with a stationary object such as an anchored vessel or a pier. Black's Law Dictionary 75 (7th ed. 1999). In this case the stationary object was a submerged reef.

² Although the court must first look to FSM sources of law rather than begin with a review of cases from other courts, FSM Const. art. XI, § 11 ("In rendering a decision, a court shall consult and apply sources of the Federated States of Micronesia."); Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), when the court has not previously construed an FSM civil procedure rule which is identical or similar to a U.S. rule, it may look to U.S. sources for guidance in interpreting the rule, see, e.g., Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 413 n.3 (App. 2000); Tom v. Pohnpei Utilities Corp., 9 FSM Intrm. 82, 87 n.2 (App. 1999); Senda v. Mid-Pacific Constr. Co., 6 FSM Intrm. 440, 444 (App. 1994). FSM Civil Procedure Rules 23 and 23.2 are similar to U.S. Federal Rules of Civil Procedure 23 and 23.2. The court has not previously explicitly stated the plaintiffs' burden in certifying a class action under Rule 23 or ruled on certain other aspects of the class action rules.