Baker v. Autos, Inc.

2015 ND 57, 860 N.W.2d 788, 2015 N.D. LEXIS 58, 2015 WL 1299799

• Court: North Dakota Supreme Court
• Decided: March 24, 2015
• Docket: 20140033
• Status: Published

Opinions

KAPSNER, Justice.

[¶ 1] Darilyn Baker (“Baker”) appeals from a district court order denying her motion for class action certification under N.D.R.Civ.P. 23. Because we conclude the district court erred in applying the law to the thirteen sub-factors of the fair and efficient adjudication factor, we reverse the district court’s order denying certification and remand with instructions to reconsider the sub-factors in light of our holding.

I

[¶ 2] In 2007, Baker purchased a 2003 Pontiac Grand Am automobile from Autos, Inc., d.b.a. Global Auto. Baker financed the purchase of the Grand Am by trading in her old vehicle and by entering into a retail installment sales contract with Global Auto. The total balance of the Grand Am, after the credit Baker received for her vehicle trade-in, was $5,470.94. The total included a “document administration fee” of $195 and a “loan fee”, of $200. Baker agreed to repay the loan in thirty monthly payments of $247.08. The retail installment contract also provided that if the payment was late, Baker would be charged $25.

[¶ 3] Baker was late on making some of her required monthly payments, and the vehicle was repossessed. Before Baker defaulted on her loan, Global Auto assigned Baker’s contract to RW Enterprises. After the vehicle was repossessed, Baker filed suit in state district court alleging Global Auto and RW Enterprises’ sales and lending practices violated state usury law, among other claims. Baker also sued Robert Opperude and James Hendershot, the principal owners of Global Auto, and Randy Westby, the principal owner of RW Enterprises.

[¶ 4] The defendants removed the case to the U.S. District Court for the District of North Dakota based on federal question jurisdiction. In federal court, Baker filed a motion seeking certification of a class action. While the motion was pending, Baker amended her complaint, effectively eliminating her claims under federal law. Thereafter, the federal district court determined only state law issues remained, and remanded the case back to state court without ruling on the motion to certify a class.

[¶ 5] Back in state district court, Baker filed a motion to have the suit certified as a class action for all putative purchasers who, subject to the applicable statute of limitations period, may have suffered an injury as a result of Global Auto and RW Enterprises’ business practices. Baker alleged the “loan fee,” the “document administration fee,” and the late payment charge violated North Dakota usury law and the North Dakota Retail Installment Sales Act. Baker argued the defendants’ alleged violations of state usury law and the Retail Installment Sales Act were universal and affected approximately five hundred retail installment sales contracts. A hearing was held on the motion for class certification. Following the hearing, the district court entered an order denying the motion for class certification. The court did not rule on the merits of the case.

II

[¶ 6] “An order certifying or refusing to certify an action as a class action is appealable.” N.D.R.Civ.P. 23(d)(3). This Court has previously summarized the appropriate standard of review of orders certifying or denying class status:

The trial court has broad discretion in determining whether to certify a class action under N.D.R.Civ.P. 23. The trial court’s decision to certify a class action will not be overturned on appeal unless the court has abused its discretion. A trial court abuses its discretion only when it acts in an unreasonable, arbitrary, or unconscionable manner, when its decision is not the product of a rational mental process leading to a reasoned decision, or when it misinterprets or misapplies the law.

Howe v. Microsoft Corp., 2003 ND 12, ¶ 6, 656 N.W.2d 285.

[¶ 7] “Rule 23, ND.R.Civ.P., is a remedial rule for efficient resolution of the claims or liabilities of many individuals in a single action, eliminating repetitious litigation and possibly inconsistent adjudications involving common questions, related events, or requests for similar relief. ...” Bice v. Petro-Hunt, L.L.C., 2004 ND 113, ¶ 7, 681 N.W.2d 74. The rule furnishes “an effective procedure for those whose economic position is such that it is unrealistic to expect them to seek to vindicate their rights in separate lawsuits.” Id.

[¶ 8] Rule 23, ND.R.Civ.P., provides that a trial court may permit class certification if the four following requirements are satisfied:

1. The class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable;

2. There is a question of law or fact common to the class;

3. A class action should be permitted for the fair and efficient adjudication of the controversy; and

4. The representative parties fairly and adequately will protect the interests of the class.

Howe, 2003 ND 12, ¶ 8, 656 N.W.2d 285; ND.R.Civ.P. 23(a) and (b). The four factors are often simply referred to as numer-osity, commonality, fair and efficient adjudication, and adequate representation. See, e.g., Werlinger v. Champion Healthcare Corp., 1999 ND 173, 598 N.W.2d 820.

[¶ 9] “If the court finds the first two requirements have been met, it must decide whether a class action should be permitted for a fair and efficient adjudication of the controversy, and in doing so N.D.R.Civ.P. 23(c) lists thirteen factors for the court to consider.” Mann v. N.D. Tax Comm’r, 2007 ND 119, ¶33, 736 N.W.2d 464. “The trial court must weigh the competing factors, and no one factor predominates over the others.” Rose v. United Equitable Ins. Co., 2002 ND 148, ¶ 9, 651 N.W.2d 683. We have previously elaborated:

In most cases some of the thirteen factors will weigh against certification and some will weigh in favor. It is for the trial court, employing its broad discretion, to weigh the competing factors and determine whether a class action will provide a fair and efficient adjudication of the controversy. Thus, even if [some] of the factors weigh against certification, that does not preclude the court from certifying the class action if, in its opinion, those factors are outweighed by other factors supporting certification.

Id. Weighing the various factors is separate and independent from the ultimate inquiry whether a class can prove its claim. See Werlinger, 1999 ND 173, ¶ 18, 598 N.W.2d 820. “It is well settled that a district court must make a determination of class certification without delving into the merits of the case. The question is whether the requirements to certify a class action have been met, not whether the plaintiffs will prevail on the merits.” Id. (citation omitted).

[¶ 10] This Court has previously addressed class certification where the underlying cause of action is usury. In Rogelstad v. Farmers Union Grain Terminal Ass’n Inc., 226 N.W.2d 370, 376 (N.D.1975), this Court held that the district court abused its discretion in denying certification to a group of farmers who were allegedly charged usurious interest rates by a grain elevator association. The district court determined common questions of law or fact did not exist, as there were some putative class members with implied agreements, some with promissory notes, and others with “some other type [of agreement].” Id. at 373. The district court also reasoned, “If existence of usury is dependent upon promissory note or other written agreement, then interpretation of those express contracts becomes all important to the resolution of the case.” Id.

[¶ 11] On appeal, this Court reversed the district court’s order denying certification and remanded with instructions that the class be certified. Rogelstad, 226 N.W.2d at 378-79. This Court held commonality existed because there were common questions of fact: all the plaintiffs could “offer the same evidence as to the interest rate charged, the computer bookkeeping methods of GTA [grain elevator association], the relationship between GTA headquarters and local elevators, and billing methods, among other things.” Id. at 378. We also noted the case presented a common legal question: “‘Did GTA, for “numerous” patrons with grain purchase contracts, utilize an accounting procedure for billing interest on advances that entailed a usurious rate of interest, resulting in a charge or collection of usury?’ ” Id. Finally, once the evidence was presented as to the common questions of fact, and a disposition was made as to the question of law, we concluded that “either GTA would be entitled to a decision in its favor or the class action plaintiffs would need only to prove their individual damages.” Id.

[¶ 12] There are several similarities between the instant case and Rogelstad. Most significantly, both cases involve the underlying claim of usury, and whether miscellaneous contracts and terms provide sufficient common questions of law or fact. Although the Rogelstad Court was applying. a class action rule that has since been amended, the substance of the rule has not changed to such an extent that Rogelstad is no longer good law. See Saba v. Counties of Barnes, Benson, Burleigh, Eddy, Foster, Griggs, Kidder, Nelson, & Wells, 307 N.W.2d 590, 593 (N.D.1981). Rogel-stad remains good law and provides guidance here.

Ill

[¶ 13] On appeal, Baker argues the district court abused its discretion in applying the thirteen factors under N.D.R.Civ.P. 23(c)(1)(A) — (M). Baker contends the court misapplied the law by only permitting certification in instances when damages are uniform. Baker also argues Rogelstad is controlling, and that commonality can still be met where each member of the class has his or her own unique damages.

[¶ 14] The district court’s certification order did not address numerosity or commonality, nor did the defendants’ briefs filed in this Court or in the district court. We were not provided with a transcript from the certification hearing, so we must presume that oral arguments followed the briefing and that claims of numerosity and commonality were not challenged. See Sabot v. Fargo Women’s Health Org., Inc., 500 N.W.2d 889, 892 (N.D.1993) (“The appellant assumes the consequences and the risk for the failure to file a complete transcript.”) (citation omitted). The fact that numerosity was not challenged is not surprising because the plaintiff alleges more than 500 putative class members exist. See Horst v. Guy, 211 N.W.2d 723, 726-27 (N.D.1973) (forty-eight identifiable class members established numerosity). Neither is it surprising commonality was not challenged given this Court’s application of the factor as one easily met. See Klagues v. Maint. Eng’g, 2002 ND 59, ¶ 23, 643 N.W.2d 45 (“[B]ecause only one question of law or fact is required to establish commonality, courts have classified it as easily satisfied under the rule.”). Defendants and appellants challenge the fair and efficient adjudication factor and whether Baker is an adequate class representative.

[¶ 15] Although the commonality factor was not challenged, we find it necessary to discuss it because the overarching theme throughout the district court’s order denying certification focused on the apparent discrepancies in the vehicle contracts. The district court reasoned that because the various vehicle purchasers were charged miscellaneous fees, interest rates, costs, etc., each contract required individualized review to determine whether a violation of law occurred and if so, the proper remedy. In its analysis of one of the thirteen sub-factors of the fair and efficient adjudication factor, the district court stated:

As the Court understands Baker’s argument, all, or nearly all potential class members were charged usurious interest. However, not all were charged the same usurious rates. All, or nearly all potential class members were charged excessive fees. However, not all were charged the same excessive fees. All, or nearly all potential class members were the victims of incomplete or inaccurate loan disclosures. However, not all were victims of the same incomplete or inaccurate disclosures.

[¶ 16] Here, the issue is whether the district court abused its discretion in denying certification based on the asserted contractual differences. The court’s reasoning indicates there needed to be uniformity in the interest rates and fees, or at least more consistency in the contracts for certification to be proper. Although the court focused its analysis on the fair and efficient adjudication factor and its thirteen sub-factors in N.D.R.Civ.P. 28(c)(1)(A)— (M), the substance of the court’s reasoning under each sub-factor primarily focused on the inadequacy of common questions of fact. Because individual differences in treatment or potential damages with respect to the various vehicle contracts does not defeat commonality, we conclude the district court erred in applying the law to the thirteen sub-factors of the fair and efficient adjudication factor.

[¶ 17] An analysis of the commonality factor, as well as an analysis of the thirteen sub-factors of the fair and efficient adjudication factor, is necessary to further explain our holding.

Commonality

[¶ 18] “The commonality requirement has been characterized as a low hurdle that is easily surmounted.” Alba Conte & Herbert Newberg, Newberg on Class Actions § 13:16 (4th ed.2002). “[B]ecause only one question of law or fact is required to establish commonality, courts have classified it as easily satisfied under the rule.” Bice, 2004 ND 113, ¶ 9, 681 N.W.2d 74. “Commonality is satisfied if there is a common nucleus of operative facts or there are legal issues common to a class, or when a question of. law linking class members is substantially related to the resolution of the litigation, even though the individuals are not identically situated.” Conte & Newberg, supra at § 13:16 (4th ed.); see also Werlinger, 1999 ND 173, ¶ 16, 598 N.W.2d 820 (“When a question of law refers to standardized conduct by the defendants toward members of a proposed class, a common nucleus of operative facts is typically presented, and the commonality requirement is met.”). “When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.” 1 William B. Rubenstein, Newberg on Class Actions § 3:20 (5th ed.2011).

[¶ 19] Courts have generally held that not every issue of law or fact needs to be identical for there to be commonality. See Bice, 2004 ND 113, ¶ 9, 681 N.W.2d 74 (“Individual differences in cases concerning treatment or damages do not defeat commonality.”); Paxton v. Union Nat’l Bank, 688 F.2d 552, 561 (8th Cir.1982) (commonality does not require that every question of law or fact be common to every member of the class; commonality may be satisfied where the question of law linking the class is substantially related to the resolution of the litigation even though the individuals are not identically situated). “Because not all questions need be common, the fact that class members must individually demonstrate their right to recover, or that they may suffer varying degrees of injury, will not bar a finding of commonality.” 1 Rubenstein, supra, § 3:20 (5th ed.) (emphasis in original). Thus, even where there is disparity in each class member’s damages, that does not necessarily defeat commonality.

[¶ 20] The issue of commonality in vehicle retail installment contract cases has appeared with some frequency in federal Truth in Lending Act (“TILA”) cases. Although Baker does not raise TILA in her claim, her issues are comparable to such cases. Common questions of law or fact arising under TILA have included:

(1) whether forms used in connection with consumer credit purchases did not make the required disclosures;

(2) whether monthly billing statements failed to disclose the annual percentage rate of finance charges;

(8) whether particular disclosures are in fact required; and

(4) what are the effects of certain standardized conduct of the defendant.

Conte & Newberg, supra, § 21:3 (4th ed.). One commentator has noted, “[w]hen the [TILA] complaint alleges that there has been an inadequate disclosure of some required information or some other defect in the procedures or forms utilized, common questions of law and fact are found in the standardized conduct of the defendant in allegedly failing to meet those statutory requirements.” 7A Charles Wright & Arthur Miller, Federal Practice and Procedure § 1763 (3d ed.2014).

[¶ 21] In Chandler v. Sw. Jeep-Eagle, Inc., 162 F.R.D. 302, 308 (N.D.Ill.1995), commonality was satisfied where class members entered into standard service contracts with an auto dealer. The court noted, even though potential individual issues such as reliance and damages remained, commonality was satisfied because all the claims involved the common question whether the disclosure provisions of the contracts violated TILA or a state consumer fraud act. Id.; see also Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. 111, 116 (D.Kan.1995) (granting class certification and finding commonality in breach of contract action where the contracts signed by all proposed class members, while not identical, contained virtually the same provision as the contract challenged by the class representative); In re United Energy Corp. Solar Power Modules Tax Shelter Invs., 122 F.R.D. 251, 254 (C.D.Cal.1988) (finding that, where the allegations concerned common issues of conduct, standardized documents and misrepresentations, the remaining individual issues of reliance, causation and damages did not exclude certification).

[¶ 22] Similarly, in Violette v. P.A. Days, Inc., 214 F.R.D. 207, 214 (S.D.Ohio 2003), certification was granted where used car buyers brought TILA and state retail installment sales act (“RISA”) actions against auto dealers who allegedly engaged in unfair trade practices. The court found commonality was satisfied where common questions of fact included the nature of the forms used by the auto dealer and whether the dealer failed to accurately disclose the annual percentage rate. The court also found there were common questions of law, including the legality of dealer’s “Retail Installment Sales Contract and Security Agreement form, whether various fees imposed are permitted by the Ohio Retail Installment Sales Act, whether [the dealer’s] disclosures are in violation of the federal Truth In Lending Act, and whether Theft-Gard must be disclosed as part of the finance charge disclosure.” Id. at 218-14.

[¶ 28] In Salvagne v. Fairfield Ford, Inc., 264 F.R.D. 321, 327 (S.D.Ohio 2009), a class was certified for a group of car buyers that challenged a Ford dealer’s financing procedures and retail installment sales contracts. The common issues of law and fact included:

the nature of the forms used by Ford; whether those forms are permissible under the laws implicated herein [TILA, Ohio’s Consumer Sales Practices Act, and the Equal Opportunity Credit Act], including whether a retail installment sales contract may permissibly be modified by a separate agreement; whether Ford is a creditor under the laws implicated herein; whether Ford failed to make meaningful TILA disclosures; and whether Ford failed to give notice of an adverse credit action.

Id. Although the dealership argued commonality was not met because the various vehicle contracts contained materially different language, the court stated “such factual differences among the class members would not defeat the common issues of law that are present.” Id.; but cf. Health Cost Controls v. Sevilla, 365 Ill.App.3d 795, 303 Ill.Dec. 46, 850 N.E.2d 851, 863 (2006) (stating “where an entity’s relationships with other members of a putative class are established by the presence of several individual contracts, any significant differences in the operative language of those contracts militates against a finding of commonality for purposes of class certification”). We are also aware that in a similar case with many of the same potential class members, U.S. District Court Judge Hovland, applying federal law, denied certification, concluding the lead plaintiff did not show there were questions of law or fact common to the class. Delorme v. Autos, Inc., 4:11-CV-039, 2012 WL 1606636, at *5 (D.N.D. May 8, 2012).

[¶ 24] Here, although Baker’s putative ■ class of vehicle purchasers.includes numerous contracts containing various prices and conditions, the overarching and unifying attribute common to each Global Auto contract concerns the “loan fee,” the “document administration fee,” the “late fee,” and whether the amount or nature of each fee violates state usury law or RISA. Each putative plaintiff signed the same standard form contract, albeit with varying price terms written in for each respective vehicle. The district court noted the potential class members were not all charged the same usurious rates or excessive fees or subject to varying inaccurate or incomplete disclosures. However, these variations speak more to the issue of damages, and it is well established that differences in the degree of injury or damages will not bar a finding of commonality. See 1 Rubenstein, supra, § 3:20 (5th ed.); Morgan v. Coats, 33 So.3d 59, 65 (Fla.Dist.Ct.App.2010) (“While it is true that there will be some factual variations among the class members’ claims ... such issues go to the determination of damages rather than to liability. And individualized damages inquiries do not preclude class certification.”).

[¶ 25] Given the common characteristics in the “loan fee,” the “document administration fee,” the “late fee,” and whether the amount or nature of each fee violates state usury law or RISA, we conclude there is a common nucleus of operative facts and legal issues common to Baker and her putative class. Generally, commonality is not difficult to overcome, nor is it automatically defeated when individual differences in damages may occur. See Bice, 2004 ND 113, ¶ 9, 681 N.W.2d 74. This case presents several common questions of both law and fact, for instance:

1. Were the buyers charged a $25 late fee?

2. Does RISA prohibit a $25 late fee? 3.. Were the plaintiffs charged a loan fee?

4. Does the loan fee violate RISA or state usury law?

5. Were the plaintiffs charged a document administration fee?

6. Does the document administration fee violate RISA or state usury law?

7. Were the plaintiffs aware of document administration fees or loan fees?

8. Does RISA require disclosure of document administration and loan fees?

There is some evidence that indicates not all the purchasers were charged a “document administration fee,” a “loan fee,” or subject to a “late fee.” This fact alone does not defeat commonality. For instance, if one group of purchasers was only charged a “late fee” and another only charged a “loan fee,” it may be appropriate to have separate sub-classes. Those purchasers who cannot demonstrate they were subject to the fees would not qualify for the sub-class. Because the claims all involve similar allegations concerning the legality of Global Auto’s “document administration fees,” “loan fees,” and “late fees,” there is commonality in this case.

[¶ 26] There is also some indication the district court operated under the erroneous view that commonality requires both common questions of law and fact. The court, apparently referring to commonality, stated, “[w]hile there may indeed be common questions of law regarding usury and compliance with the retail installment sales act, common questions of fact are missing. Each individual contract will need to be reviewed to determine whether any violations of law occurred, and what an appropriate remedy would be.” This is an incorrect interpretation of the law. Only one question of law or fact is required to establish commonality. Bice, 2004 ND 113, ¶ 9, 681 N.W.2d 74. While either a single question of law or fact is sufficient, this case presents several questions of both law and fact that are common to the proposed class.

[¶ 27] In Rogelstad, we determined the common fact issues included the interest rate charged and the defendant’s bookkeeping and billing methods. 226 N.W.2d at 378. Individual issues did not defeat commonality in Rogelstad:

the only possible differences between the contentions of the named plaintiff and the potential plaintiffs would arise from the fact that some potential plaintiffs may have signed notes for their advances while the named plaintiff and other potential plaintiffs did not, the individual differences as to dates of advances and repayments, and amounts of damages. The similarities, which will very likely be determinative of the right of the class plaintiffs to recover, are largely legal, questions: whether the usury law applied to the factual situation we have outlined, whether an agreement is necessary in order to constitute usury, or whether the mere charging and receipt of usurious interest is sufficient. We believe that these issues predominate over any questions affecting only individual members....

Id. at 376 (internal quotation marks omitted). Analogously here, the proposed class, according to Baker, were all charged usurious loan fees, were subject to unlawful late fee provisions, and endured incomplete or inaccurate disclosures. Rogelstad and the instant case also reflect the same basic legal question: whether the defendant charged usurious interest rates. Indeed, the district court in this case even noted the proposed class presented a common legal question: “The questions of law applicable to all class members may indeed be identical: was usurious interest charged, did violations of the retail installment sales act occur? The questions of fact, however, vary for each individual proposed class member.” Finally, as in Ro-gelstad, once the evidence is presented as to the common questions of fact, and the court applies the law, either Global Auto would be entitled to a decision in its favor or the class action plaintiffs would need to prove their individual damages.

Fair and Efficient Adjudication

[¶28] If the district court finds the first two requirements of certification, nu-merosity and commonality, have been met, “it must decide whether a class action should be permitted for a fair and efficient adjudication of the controversy, and in doing so N.D.R.Civ.P. 23(c) lists thirteen factors for the court to consider.” Mann, 2007 ND 119, ¶ 33, 736 N.W.2d 464.

A. Whether a Joint or Common Interest Exists Among Class Members

[¶ 29] “Generally, a common interest exists if one class member’s failure to collect would increase the recovery of the remaining members, or if the defendant’s total liability does not depend on how the recovery of the claim is distributed among the class members.” Klagues, 2002 ND 59, ¶ 11, 643 N.W.2d 45. “A joint and common interest under N.D.R.Civ.P. 23(c)(1)(A) is not the same as a common question of law or fact under N.D.R.Civ.P. 23(c)(1)(E).” Id. Nor is a joint and common interest under N.D.R.Civ.P. 23(c)(1)(A) satisfied by a mere showing a common interest in recovery or a common nucleus of facts. Id. at ¶ 12. In Klagues, we determined the trial court erred in finding a joint and common interest existed under N.D.R.Civ.P. 23(c)(1)(A) because there was no indication in the record that the failure of one potential class member to collect from the defendant would increase the other class members’ recovery. Id. On the contrary, in Klagues, each potential class member had an individualized amount they claimed was owed to them, based on the defendant’s alleged breach of contract. Id.

[¶ 30] Here, the district court found no common or joint interest among the purported class members existed, explaining:

The failure of one or more class member to collect will not increase Baker’s recovery, or the recovery of any other class member. Further, the total liability of the defendants will depend upon the individual recovery of each class member, and the distribution of the recovery among class members will be individualized according to the specific facts of each transaction.

Recovery in this case, like the proposed class in Klagues, would be determined by each individual’s claim, rather than sharing recovery from a fixed pool of money. Therefore, the district court correctly applied the law and made findings within its range of discretion. The district court did not abuse its discretion deciding that no common or joint interest existed between class members and- that this factor did not favor certification.

B. The Risk of Inconsistent Adjudications

[¶ 31] Rule 23(c)(1)(B), N.D.R.Civ.P., requires consideration of:

whether prosecuting separate actions by or against individual class members would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for a party opposing the class.

The risk of inconsistent adjudications is not that some might win their case while others lose theirs, nor does the possibility of different monetary judgment among potential class members pose a risk of varying adjudications or incompatible standards. See Klagues, 2002 ND 59, ¶ 14, 648 N.W.2d 45. Rather, the inconsistent and varying adjudications sub-factor (B), “only applies to actions in which the non-class party could be sued for different and incompatible affirmative relief, as opposed to actions seeking money damages.” Id. at ¶ 13. Incompatible standards under N.D.R.Civ.P. 23(c)(1)(B) generally “occur when the party opposing the class certification would be unable to comply with one judgment without violating the terms of another judgment.” Klagues, at ¶ 13.

[¶ 32] The district court found this factor did not favor certification because individual recovery depends on the merits of each individual’s claim. It found that because the standards to which the defendants must be held are established by statute and do not vary from plaintiff to plaintiff, no danger of inconsistent or varying adjudications exists.

[¶ 33] We find the district court misapplied the law because it did not analyze this sub-factor in the context of whether the defendants would be unable to comply with one judgment without violating the terms of another judgment if separate actions were brought by individual class members. See Klagues, 2002 ND 59, ¶ 13, 643 N.W.2d 45.

C. Whether an Individual Adjudication Would be Dispositive of Others’ Claims or Interests

[¶ 34] The next fair and efficient adjudication sub-factor to consider is whether the resolution of one person’s lawsuit likely would be dispositive of the interests of others, or whether it would substantially impair other parties’ ability to protect their interests. N.D.R.Civ.P. 23(c)(1)(c). “The precedential effect of a decision in individualized litigation ‘alone should not be the basis for class certification under’ N.D.R.Civ.P. 23(c)(1)(c), ‘but precedent plus some other practical factor could be sufficient to qualify as a class under this factor.’ ” Bice, 2004 ND 113, ¶ 16, 681 N.W.2d 74 (citation and quotation omitted). This Court has stated:

Although most class certification issues under this factor deal with cases involving limited funds, the plain language of the rule does not restrict it to those cases. Koch I, [Ritter, Laber and Assoc. v. Koch Oil, 2000 ND 15, ¶ 18, 605 N.W.2d 153]. The trial court did not base its finding under this factor on [the defendant’s] lack of funds, but instead found individual actions could have a preclusive effect on recovering or defending claims. We noted in Koch I, the majority of courts have required that the effect of separate actions must be more than stare decisis. See id.; see also 5 Moore’s Federal Practice § 23.42[3][b] (noting the stare decisis effect is insufficient to warrant class certification under this factor). The intent of Rule 23 is not to create a right to a class action simply because an opinion in one action might be cited as precedent in another action. Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 4.10 (3d ed.1992) (citing Goldman Theatres, Inc. v. Paramount Film Corp., 49 F.R.D. 35 (E.D.Pa.1969)). If this were considered the rule, then almost every action would be susceptible of being brought as a class action.

Klagues, 2002 ND 59, ¶ 17, 643 N.W.2d 45.

[¶ 35] Plaintiff argued to the district court and on appeal that class treatment would provide a simple and streamlined means of determining the legal questions, leaving only calculations of damages. That argument is relevant to determining whether common questions predominate, but it is not the correct analysis under sub-factor (C). Further, we have not been pointed to anything in the record suggesting this is a limited funds case or that individual adjudications risk anything other than the potential for differing adjudicatory results. Therefore, the district court did not abuse its discretion by finding that there is no risk individual adjudications would dispose of others’ claims, and that this sub-factor does not favor certification.

D. Whether Defendants Have Acted on Grounds that Apply Generally to the Class, so that Final Injunctive Relief or Corresponding Declaratory Relief is Appropriate

[¶ 86] The threshold requirement under this fair and efficient adjudication sub-factor is that the plaintiff seeks injunctive or declaratory relief. See N.D.R.Civ.P. 23(c)(1)(D). Baker argues she requested that the court “[e]nter a permanent injunction directing Defendant to take all affirmative steps necessary to remedy the effect of the unlawful and deceptive conduct described herein and to prevent similar occurrences in the future.” The district court explained that the defendants removed this action to federal court, where Baker amended her complaint to dismiss the North Dakota Unfair Trade Practices claim, the federal truth in lending claim, and the North Dakota Racketeer Influenced and Corrupt Organizations (“RICO”) claim. Those same amendments removed the prayer for injunctive relief quoted by Baker to this Court. The body of Baker’s amended copplaint, states, “This is a civil action for declaratory relief, injunctive relief, and monetary damages relating to Defendants’ usurious unlawful consumer lending practices.” The prayer for relief in plaintiffs amended complaint asks the court to “[e]nter its finding” that defendants have violated the usury law and RISA entitling plaintiff to statutory forms of relief and damages.

[¶ 37] “The prayer for relief does not constitute part of the complaint or petition or statement of the cause of action or of the right to the relief prayed for.” Trauger v. Helm Bros., Inc., 279 N.W.2d 406, 412 (N.D.1979). Even though the prayer for relief is not a part of the cause of action and would not control the relief in a contested case, the court may look to the prayer as a means of clarifying the parties’ contentions and the issues raised. Id.

[¶ 38] The district court found this sub-factor did not favor class certification because an individualized consideration was needed on each retail installment contract to determine whether each contract violated the law. The court reasoned that the defendants are obligated to follow the law, and to the extent the defendants have violated the law, the individual who suffered harm may rely on statutory remedies to redress the violation. The court also stated it would not enjoin a party from breaking the law and “[a]n injunction or declaratory relief regarding usury offers little to the proposed class.”

[¶ 39] We find the district court misapplied the law because it did not analyze this sub-factor in the context of whether Baker sought injunctive or declaratory relief.

E. Whether Common Questions of Law or ¿fact Predominate over individual Ones

[¶ 40] Sub-factor (E) of the fair and efficient adjudication factor requires that the district court weigh “whether common questions of law or fact predominate over any questions affecting only individual members.” N.D.R.Civ.P. 23(c)(1)(E). This, consideration examines whether the class’s interests “are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 594, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Predominance is “far more demanding” than the commonality requirement. Id. at 623-24, 117 S.Ct. 2231. In Koch I, this Court said:

There is no precise test to determine whether common questions predominate over individual claims. The individual claims need not be carbon copies of each other for common questions to predominate. ‘Predominate’ should not be automatically associated with ‘determinative’ or ‘significant,’ and consequently when one or more central issues to the action are common and can be said to predominate, the class action will be proper.

2000 ND 15, ¶ 22, 605 N.W.2d 153 (internal citations and quotations omitted). “[C]om-mon issues need not be dispositive of the entire litigation, and class action status is not to be refused merely because individual fact issues will remain after the common issues are resolved.” Peterson v. Dougherty Dawkins, Inc., 1998 ND 159, ¶ 22, 583 N.W.2d 626. Iowa, like North Dakota, has adopted the Uniform Class Action Rule. Its court held common questions do not predominate when “[t]rial as a class action would involve only limited amounts of evidence, and perhaps no evidence, relevant to all class members,” but “would involve large amounts of evidence relevant only to individual plaintiffs.” Quamme v. Advance Trading, Inc., No. 99-0874, 2001 WL 540056, at *5 (Iowa Ct.App. May 23, 2001).

[¶ 41] The Newberg treatise on class actions explained the predominance consideration under Federal Civil Rule 23 as follows:

Issues are characterized as common or individual primarily based on the nature of the evidence:

If “the members of a proposed class will need to present evidence that varies from member to member, then it is an individual question.”

If “the same evidence will suffice for each member to make a prima facie showing,” or if the issue is “susceptible to generalized, class-wide proof,” then it is a common issue.

2 William B. Rubenstein, Newberg on Class Actions § 4.50 (5th ed.2012). The treatise also states, “The predominance demand is stricter than [the] commonality requirement — it is not just that common issues exist, the predominance inquiry determines the further question of whether these are more prevalent than non-common issues.” Id. at § 4.51.

[¶42] Here, the district court found sub-factor (E) did not favor certification. Although the court found that questions of law were applicable to all class members, it determined “[t]he questions of fact ... vary for each individual proposed class member.” The court also found, “Obviously, each sales price of each individual automobile was different in each transaction, making interest calculations and determinations of damages, if any, an individualized process for each transaction.”

[¶ 43] We conclude the district court did not abuse its discretion in applying this sub-factor.

F. Whether Other Means of Adjudicating the Claims are Impracticable or Inefficient

■ [¶ 44] The district court must also consider “whether other means of adjudicating the claims and defenses are impracticable or inefficient.” N.D.R.Civ.P. 23(c)(1)(F). The district court determined sub-factor (F) did not favor certification, acknowledging that 500 or more separate actions for improper sales and lending practices may be impractical, but it is not incapable of being performed or accomplished. The district court stated, “It is not readily apparent that the Court can accomplish a complete resolution of all class claims without an independent analysis of all individual contracts.” The district court also noted, “If the recovery of each individual class member must depend upon an examination of every single contract to determine first whether any violations of law occurred, and second, what are the damages, if any, or what other relief is available to the individual claimant, a class certification accomplishes nothing.”

[¶ 45] A primary purpose of class action suits, particularly money damages claims, is to enable litigation of claims that are worth too little money to be pursued individually. 2 Rubenstein, supra, § 4:65 (5th ed.). “[W]hen many individuals have small damage claims, aggregation is especially appropriate because absent a class suit, it is unlikely that any of the claimants will be accorded relief.” Id. at § 4:47. Thus, N.D.R.Civ.P. 23, provides an “effective procedure for those whose economic position is such that it is unrealistic to expect them to seek to vindicate their rights in separate lawsuits.” Bice, 2004 ND 113, ¶ 7, 681 N.W.2d 74.

[¶ 46] We conclude the district court misanalyzed sub-factor (F) because it did not analyze it in the context of small damage claims.

G. Whether a Class Action Offers the Most Appropriate Means of Adjudicating the Claims and Defenses

[¶47] This sub-factor looks at both claims and defenses to determine whether a representative class proceeding provides the most appropriate means of adjudication. N.D.R.Civ.P. 23(c)(1)(G). The district court found sub-factor (G) did not favor certification because the court must look at both the claims and the defenses. The district court earlier acknowledged that Baker presented a common legal claim but that any determination of facts would be particularly individualized. Under this sub-factor, the district court explained it could not issue a blanket finding that the defendants violated the usury law in all 500 contracts “either because the fluctuating formula required for determining usury removes a contract from the ambit of the usury law, or the defendants properly disclosed everything required by the retail installment sales act.”

[¶ 48] The Newberg treatise notes that comparing class actions to alternate forms of litigation “is not a comparison that requires significant effort in most class action cases, namely those involving small claims.” 2 Rubenstein, supra, § 4:87 (5th ed.). The treatise goes on to note:

In such cases, there will either be a class action or there will be no litigation. A class action is not only superior to other forms of litigation; it is the only form of litigation.

Id.

[¶ 49] Defendants and appellees argue that sub-factor (G) requires a consideration of whether a class action offers the most appropriate means of adjudicating the claims, as well as the defenses. They argue that while a class action “would undoubtedly provide a convenient method for Baker to prosecute a class action claim, it would also eviscerate the ability of the defendants to fairly defend themselves in court,” and they “must be given the opportunity to compel each claimant to prove that they are actually entitled to relief.”

[¶ 50] In Salvagne, a similar case, a class was certified for a group of car buyers, that challenged a Ford dealer’s financing procedures and retail installment sales contracts. 264 F.R.D. at 327. Ford argued a class action was not the most efficient method for adjudicating the issues because it would have to devote considerable time to investigate each individual deal, agreement, and customer interaction. Id. at 330. The court found Ford’s position contradictory:

Ford argues that differences in forms and customer understanding should defeat Plaintiffs’ motion for class certification but in the same breath assures the Court that it would receive closure on the issues raised by Plaintiffs if the Court ruled on an individual claim. The Court fails to see how those two positions can be reconciled with each other.

[¶ 51] We conclude the district court misanalyzed sub-factor (G).

H. Whether Members Not Representative Parties Have a Substantial Interest in Individually Controlling the Prosecution or Defense of Separate Actions

[¶ 52] This sub-factor addresses whether non-representative class members have “a substantial interest” in controlling their own lawsuit instead of being bound by an adjudication controlled by others. See N.D.R.Civ.P. 23(c)(1)(H). The district court found this sub-factor neither favored nor disfavored class certification. Baker argues the court relied on speculation in not finding this fair and efficient adjudication consideration favored certification. The defendants claim Baker engages in speculation with her assertion that no putative class member has the resources to advance individual claims.

[¶ 53] The Newberg treatise quotes the Advisory Committee that drafted federal Rule 23, affirming its guidance regarding class members’ individual interests:

The interests of individuals in conducting separate lawsuits may be so strong as to call for denial of a class action. On the other hand, these interests may be theoretic rather than practical: the class may have a high degree of cohesion and prosecution of the action through representatives would be quite unobjectionable, or the amounts at stake for individuals may be so small that separate suits would be impracticable.

2 Rubenstein, supra, § 4:69 (5th ed.). The treatise goes on to state:

The passage identifies two reasons why individuals may have little interest in pursuing litigation themselves: first, their claims may be so closely related to the claims of others that litigation by others will achieve their ends without the need for their involvement; second, their claims may be so small that it would be a waste of their time and/or resources to litigate individually. These situations support the conclusion that individuals have little interest in controlling their own litigation and hence that representative litigation is superior.

Id. Our caselaw has recognized this sub-factor as weighing in favor of certifying a class action when damages suffered by each putative class member are not large. See Klagues, 2002 ND 59, ¶ 21, 643 N.W.2d 45 (citing Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1190 (9th Cir.2001)). Baker’s complaint asserts a document origination fee of $195, a loan fee of $200, and late fees of $25 violate state law.

[¶ 54] Since neither party introduced evidence of this sub-factor, the district court did not abuse its discretion in finding sub-factor (H) is neutral.

I.Whether the Class Action Involves a Claim That is or has been the Subject of a Class Action

[¶ 55] This sub-factor probes whether the proposed class proceeding has been the subject of other certification attempts or independent litigation. N.D.R.Civ.P. 23(c)(1)(I). The district., court found this consideration did not favor certification because the North Dakota federal district court denied certification of similar claims against the same defendants in Delorme v. Autos, Inc., No. 4:11-CV-039, 2012 WL 1606636 (D.N.D. May 8, 2012). The district court paraphrased the federal court decision: “Judge Hovland writes that even a cursory review of the documents filed with the motion reveals that not all members of the class were charged the same fees or interest. The Court would therefore need to engage in an examination of each particular transaction to determine whether the defendants violated any law.” Because of similarities between this case and the federal Delorme case, we cannot conclude the district court’s consideration of the history of these legal issues was an abuse of discretion.

J.Whether it is Desirable to Bring the Class Action in Another Forum

[¶ 56] The court must consider “whether it is desirable to bring the class action in another forum.” N.D.R.Civ.P. 23(c)(l)(J). The district court determined that fair and efficient adjudication consideration sub-factor (J) favored granting class certification. Baker agrees the court properly found this sub-factor. The defendants do not challenge the court’s finding, and further discussion is unnecessary.

K.Whether Management of the Class Action Poses Unusual Difficulties

[¶ 57] The court must consider “whether management of the class action poses unusual difficulties.” N.D.R.Civ.P. 23(c)(1)(K). Little has been written in North Dakota about this “manageability” sub-factor in the fair and efficient adjudication analysis. In Old Broadway Corp. v. Hjelle, this Court held the district court did not abuse its discretion in denying certification due to manageability concerns where the subject of litigation was often-changing highway billboard advertising. 411 N.W.2d 81, 86 (N.D.1987). However, the reasons underpinning that ruling were not explored.

[¶ 58] The federal class action rule is arranged differently than North Dakota’s rule, but both rules contain a manageability prong. The federal rule’s prong is a sub-consideration to whether class proceedings are “superior” to other methods of adjudication. Fed.R.Civ.P. 23(b)(3)(D). The Newberg treatise reports, “The manageability factor ‘encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit.’ ” 2 Rubenstein, supra, § 4:72 (5th ed.). The treatise also states, “courts deny class certification on manageability grounds relatively infrequently and primarily in certain carefully circumscribed situations.” Id. The treatise explains four reasons why manageability concerns might be grounds for infrequently denying certification:

First, the manageability inquiry is, importantly, part of the superiority inquiry. What that means is that the question that courts consider when they analyze manageability is not whether a class action is manageable in the abstract but how the problems that might occur in managing a class suit compare to the problems that would occur in managing litigation without a class suit. In other words, the manageability inquiry is a comparative one. The Eleventh Circuit has stated that point this way:

[W]e are not assessing whether this class action will create significant management problems, but instead determining whether it will create relatively more management problems than any of the alternatives.

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Second, given the fact that the very concerns that might make a class suit difficult to manage also infect the procedural alternative, courts within at least seven circuits have held that there is a presumption against dismissing a class action on manageability grounds or that such dismissals are disfavored.

Third, because the cases most likely to be unmanageable are those involving myriad individual issues, the manageability concern often simply echoes the predominance analysis. Therefore, courts generally hold that if the predominance requirement is met, then the manageability requirement is met as well.

Fourth, although occasional early class action decisions suggested that a large size class made a case unmanageable, this contention gained little traction since a large class with small claims is the paradigm of a class action.

2 Rubenstein, supra, § 4:72 (5th ed.).

[¶ 59] Here, the district court found sub-factor (K) did not favor class certification. The court reasoned that every member of the alleged class has a different, individual claim, noting: “There is not one action which will control the outcome for the entire class, but potentially 500 or more ‘mini-actions’ to be managed.”

[¶ 60] While serving as a judge on the Second Circuit, now United States Supreme Court Justice Sonia Sotomayor wrote that “failure to certify an action ... on the sole ground that it would be unmanageable is disfavored and ‘should be the exception rather than the rule.’ ” 2 Ruben-stein, supra, § 4:80 (5th ed.). There are several court-initiated management techniques that may be employed that might enable a class action suit to proceed. Id, See, e.g., N.D.R.Civ.P. 53(a)(1)(B)(ii).

[¶ 61] The district court misapplied this sub-factor. ' It failed to analyze whether a class action involving these plaintiffs involved management problems that the courts would not encounter in individual litigations involving the same plaintiffs without certification as a class.

L. Whether Any Conflict of Laws Issues Involved Pose Unusual Difficulties

[¶ 62] The district court must also consider “whether any conflict of laws issues involved pose unusual difficulties.” NJD.R.Civ.P. 28(c)(1)(L). The district court determined that sub-factor (L) favored granting class certification. Baker agrees the court properly found this sub-factor. The defendants do not challenge the court’s finding, and further discussion is unnecessary.

M. Whether the Claims of Individual Class Members are Insufficient in the Amounts or Interests Involved, in View of the Complexities of the Issues and the Expenses of the Litigation, to Afford Significant Relief to the Class Members

[¶ 63] The district court must consider “whether the claims of individual class members are insufficient in the amounts or interests involved, in view of the complexities of the issues and the expenses of the litigation, to afford significant relief to the class members.” N.D.R.Civ.P. 23(c)(1)(M). The district court determined that fair and efficient adjudication sub-factor (M) favored granting class certification. Baker agrees the court properly found this sub-factor. The defendants do not challenge the court’s finding, and further discussion is unnecessary.

[¶ 64] We conclude the district court erred in applying the law to sub-factors (B), (D), (F), (G), and (K) of the fair and efficient adjudication factor.

Adequacy of Class Representative

[¶ 65] One of the four requirements for certification is that the named plaintiff adequately represent the interests of the class. N.D.R.Civ.P. 23(b)(2)(C). The district court here found “Baker does not fairly and adequately represent the class” because “her contract, and her remedy, is hers alone,” and “[t]he contracts, and any possible remedies available for the other 500 or so individual potential plaintiffs are theirs alone.” Baker has not briefed this issue, so we have no challenge to a finding that one of the four requirements for certification is lacking. State v. Duchene, 2007 ND 31, ¶ 10, 727 N.W.2d 769 (“Issues not briefed by an appellant are deemed abandoned, and ... will not be considered on appeal.”). However, because this matter is being remanded, this factor must be analyzed.

[¶ 66] This Court has addressed the adequacy of representation consideration three times: once in Bice, where an attorney representing the class also served as class counsel and was permitted to continue representing the certified class. 2004 ND 113, ¶¶ 26-27, 681 N.W.2d 74. The second was in Rose, where the defendants challenged the sole named plaintiff’s claims as non-representative and knowledge of the claim as inadequate. 2002 ND 148, ¶ 22, 651 N.W.2d 683. The Court in Rose did not address all of the challenges but simply held, “Rose did not have any conflict of interest in representing the class, and Rose had or could acquire adequate financial resources to maintain the class action.” Id. The third was in Werlinger, 1999 ND 173, ¶ 23, 598 N.W.2d 820, where one of the named plaintiffs was married-to class counsel, which this Court held was not a disqualifying relationship. The Court in Werlinger noted, “Concerns for adequacy of representation stem from the need to protect the due process rights of absent class members. Because of these constitutional underpinnings, adequacy of representation is of critical importance.” Id. at ¶ 22 (citation omitted).

[¶ 67] Commentators have also written extensively on the need for an adequate class representative with one stating:

Like the typicality requirement, and in contrast to the requirements of numer-osity and commonality, the adequacy requirement focuses on the desired attributes of those who seek to represent the class as opposed to the characteristics of the class. A class action is a form of representative litigation, with the representative’s pursuit of the class’s claims binding all of the class members to the outcome of that case regardless of their participation. To legitimate that binding effect, however, the Constitution’s Due Process Clause and the rules of class action procedure both insist that the class be “adequately” represented. Adequate representation is therefore the capstone of the Rule 23(a) requirements: it ensures that the class’s champion will pursue its interests sufficiently well so as to produce a judgment that can fairly bind all members of a group who cannot appear before the court individually.

1 Rubenstein, supra, § 3:50 (5th ed.).

[¶ 68] The typicality prerequisite overlaps with the adequacy of the class representative requirement because “in the absence of typical claims, the class representative has no incentive to pursue the claims of the other class members.” 1 Rubenstein, supra, § 3:32 (5th ed.). In determining a class representative’s adequacy, two main considerations are taken into account: whether a conflict of interests exists between the proposed representative and the class, and whether the proposed representative is qualified to serve as the class representative, by considering factors such as her knowledge of the case. Id. at § 3:54.

[¶ 69] When determining whether the representative parties will fairly and adequately protect the interests of the class; N.D.R.CÍV.P. 23(c)(2) requires the court find that:

(A) the attorney for the representative parties will adequately represent the interests of the class;

(B) the representative parties do not have a conflict of interest in the maintenance of the class action; and

(C) the representative parties have or can acquire adequate financial resources, considering Rule 23(q), to assure that the interests of the class will not be harmed.

[¶ 70] Here, the district court again points to the issue of commonality to support its determination that Baker is not a fair and adequate representative of the class because “her contract, and her remedy is hers alone.” This does not address the criteria for adequacy of representation. The court did not make a finding that Baker’s attorney would not adequately represent the interests of the class, it did not find that a conflict of interest exists between Baker and the class, and it did not make a finding regarding Baker’s financial resources.

[¶ 71] Having concluded the district court misapplied the law, we are left to determine how to proceed on remand. In Rogelstad, this Court reversed and remanded with instructions to certify the class action. 226 N.W.2d at 378-79. More recently in Klagues, 2002 ND 59, ¶ 22, 643 N.W.2d 45, this Court, after determining the district court incorrectly analyzed three of the thirteen sub-factors in granting class certification, remanded the case for a determination of certification based on a correct consideration of the thirteen sub-factors. We follow the approach taken by Klagues, and remand the order denying class certification with instructions to reevaluate the certification factors.

IV

[¶ 72] We reverse the district court’s ruling denying class certification and remand with instructions to reconsider the factors in light of our holding.

[¶ 73] DALE V. SANDSTROM, J., concurs. GERALD W. VANDE WALLE, C.J., concurs in the result.