Jaques v. Midway Auto Plaza

2010 UT 54
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Dalton Jaques; Severo Rodriguez; 	No. 20080985
Elisha Delagarza; Nicholas Rodarte;
Jodi Poll Holbrook; Jennifer Torrance;
Melissa Thomas; Gregory Heiner;
Ryan McCormick; Jennifer McCormick;
Kent Ballard; and Ronda Ballard,
Plaintiffs and Appellees,
v.
Midway Auto Plaza, Inc.; and
Mike Riddle Inc. dba Mike 	F I L E D
Riddle Mitsubishi,
Defendants and Appellants. 	September 24, 2010
---
Second District, Farmington
The Honorable Michael G. Allphin
No. 040700662
Attorneys: 	Michael V. Houtz, Jack C. Helgesen, Ogden,
for plaintiffs
Scott Powers, Heinz J. Mahler, Salt Lake City,
for defendants
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 	This action was commenced by eleven purchasers of
vehicles (Purchasers) from two car dealerships: Midway Auto Plaza
and Mike Riddle Mitsubishi (Car Dealers). 	We granted
interlocutory appeal to decide two issues. 	The first issue is
whether section 31A-15-105(2) of the Utah Code provides a private
right of action to purchasers of an insurance policy from an
unauthorized insurer. 	This issue arose from a motion to dismiss
filed by the Car Dealers arguing that the Purchasers had no such
right. 	The district court denied the motion. 	The second issue

1 We note that granting interlocutory review of class action
certification should “be the exception rather than the rule.”
Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005).
Both Utah and federal case law treat interlocutory review of
class action certification unfavorably. 	See Houghton v. Dep’t of
Health, 2008 UT 86, ¶ 14, 206 P.3d 287; see also Blair v. Equifax
Check Servs., Inc., 181 F.3d 832, 833-35 (7th Cir.
1999)(discussing when interlocutory review of class action
certification is acceptable); Manwill v. Oyler, 361 P.2d 177, 178
(Utah 1961) (noting the general limits on granting interlocutory
appeal).
In Utah, where “the matters in dispute can be finally
disposed of upon a trial; or where they may become moot; or where
they can, without involving any serious difficulty, abide
determination in the event of an appeal after the trial,”
interlocutory review is undesirable. 	Manwill, 361 P.2d at 178.
Because class action certification occurs early in the
litigation, the “scope and contour of a class may change
radically as discovery progresses.” 	Prado-Steiman v. Bush, 221
F.3d 1266, 1273 (11th Cir. 2000). 	The district court may
accommodate these changes by amending the certification order any
time before a decision on the merits. 	Utah R. Civ. P. 23(c)(1).
Thus, class certification issues are often disposed of as the
facts of the case are established through discovery and trial.
Under the guidelines established by the federal courts,
interlocutory review of class action certification is appropriate
when: (1) the denial of a class action would effectively end the
case because the plaintiff’s claim is too small to merit the cost
of litigation; (2) granting a class action raises the stakes of
the litigation and puts unreasonable pressure on the defendant to
settle; or (3) there is a novel or unsettled issue of law.
Blair, 181 F.3d at 834-35. 	This case falls under the third
guideline. 	Utah case law concerning class action certification
is sparse, leaving many fundamental issues unsettled; an
interlocutory review of this case will help establish a number of
principles underlying class action certification.
No. 20080985 	2
is whether the district court abused its discretion in certifying
several class actions. 1 	The Car Dealers argue that none of the
certifications meet the requirements of rule 23 of the Utah Rules
of Civil Procedure, and ask us to overrule the district court’s
order. 	They argue that the classes lack commonality, typicality,
and adequacy of representation and that the claims lack
predominance and superiority.

3 	No. 20080985
¶2 	For the reasons described below, we hold that section
31A-15-105(2) provides a private right of action and that the
district court did not abuse its discretion in certifying the
class actions. 	We therefore affirm the district court’s orders
regarding both these issues.
BACKGROUND
¶3 	On December 30, 2004, the Purchasers filed a complaint
against the Car Dealers making a number of individual claims.
The Purchasers later amended their complaint to include class
action allegations based on three practices by the Car Dealers.
These practices included charging Dealer Documentary Service Fees
(doc fees), selling Vehicle Theft Protection (VTP) products, and
selling Guaranteed Auto Protection (GAP) insurance. 	Pursuant to
a stipulation between the parties, the district court ordered
that the individual claims be severed from the class action
claims. 	Thus, the only remaining claims in this case were the
proposed class action claims based on the three practices of the
Car Dealers. 	On November 14, 2005, the Purchasers filed a Class
Action Second Amended Complaint including only these class action
claims.
¶4 	Five of the Purchasers’ claims dealt with the Car
Dealers’ practice of charging doc fees. 	Doc fees are charged to
vehicle buyers to cover the costs of securing financing, filing
paperwork, licensing, and preparing documents. 	The Motor Vehicle
Enforcement Division oversees the charging of doc fees, and has
instituted several requirements to ensure that the Car Dealers
explain them to potential customers. 	The Purchasers’ claims
concerning the Car Dealers’ practices in charging doc fees
alleged (1) a violation of the Utah Unfair Practices Act, (2) a
violation of the Utah Motor Vehicle Business Regulation Act,
(3) a violation of the Uniform Commercial Code, (4) that the
contracts were illegal and against public policy, and (5) unjust
enrichment.
¶5 	The Purchasers made four claims concerning the VTP
products sold by the Car Dealers. 	These claims concerned two
types of 	VTP products. 	The first, “Edge Guard,” was sold by
both Car Dealers. 	It consisted of a number etched on the windows
of the vehicle that is stored in a database that can be used to
help identify stolen vehicles. 	The second type of VTP product
consisted of a starter interrupt attached to the vehicle’s
electrical system. 	The interrupt could be used to prevent the
engine of a stolen vehicle from starting. 	This product was sold

2 The Car Dealers’ first argument that each of the VTP and
GAP claims asserted a violation of section 31A-15-105(2) of the
Utah Code is clearly incorrect. 	At least four claims made by the
Purchasers alleged that the portions of the sales contracts
concerning VTP and GAP products were against public policy and
contained illusory promises. 	These claims are based on contract
law, and not on a violation of section 31A-15-105(2) of the Utah
Code. 	However, the district court did not address this point in
its order, and we do not address it on appeal.
No. 20080985 	4
only by Midway Auto Plaza. 	The contracts for both of these
products promised a sum of money or, in some cases, credit toward
the purchase of a new car if a stolen vehicle is not recovered in
a specified amount of time. 	The Purchasers’ VTP claims alleged
(1) a violation of section 31A-15-105(2) of the Utah Code, (2) a
violation of the Utah Unfair Practices Act, (3) that the
contracts were against public policy, and (4) that the contracts
contained illusory promises. 	The claim that is most pertinent to
this appeal is the alleged violation of section 31A-15-105(2) of
the Utah Code.
¶6 	The Purchasers made four claims concerning the GAP
insurance policies sold by the Car Dealers. 	Similar to the VTP
claims, the GAP claims included (1) a violation of section
31A-15-105(2) of the Utah Code, (2) a violation of the Utah
Unfair Practices Act, (3) that the contracts were against public
policy, and (4) that the contracts contained illusory promises.
¶7 	The Purchasers filed three separate motions seeking
class certification for each of the doc fee claims and several of
the VTP and GAP claims. 	The Purchasers did not move to certify
the VTP and GAP claims made under the Utah Fair Practices Act.
However, they did move to certify the remainder of their claims.
¶8 	The Car Dealers filed memoranda in opposition to class
certification, as well as a motion to dismiss all the VTP and GAP
claims. 	In their motion, the Car Dealers argued that (1) each of
the Purchasers’ VTP and GAP claims asserted a violation of
section 31A-15-105(2) of the Utah Code, (2) section 31A-15-105(2)
does not grant a private right of action, and (3) enforcement of
this section falls to the Insurance Commissioner. 2 	The motion to
dismiss did not include the doc fee claims.
¶9 	The district court issued an order denying the Car
Dealers’ motion to dismiss. 	It determined that section

5 	No. 20080985
31A-15-105(2) grants a private right of action to a policyholder.
The district court also granted the Purchasers’ motions for class
certification. 	However, the class action certification order did
not address every VTP and GAP claim made by the Purchasers.
Instead, it addressed only the question of whether the products
were sold in violation of section 31A-15-105(2). 	Additionally,
the order did not address the doc fee claims individually.
Rather, it combined them into the broader question of whether the
Car Dealers’ methods of charging the doc fees violated the law.
¶10 	The Car Dealers challenge the district court’s
interpretation of section 31A-15-105(2) and ask for reversal of
the district court’s denial of the motion to dismiss. 	They also
appeal the district court’s certification of the three class
actions.
STANDARD OF REVIEW
¶11 	The interpretation of a statute is a question of law
that we review for correctness without any deference to the legal
conclusions of the district court. 	Green River Canal Co. v.
Olds, 2004 UT 106, ¶ 16, 110 P.3d 666.
¶12 	The decision to certify a claim as a class action is
“‘within the sound discretion of the district court.’” 	Houghton
v. Dep’t. of Health, 2008 UT 86, ¶ 15, 206 P.3d 287 (quoting
Richardson v. Ariz. Fuels Corp., 614 P.2d 636, 639 (Utah 1980)).
A trial court’s decision on class action status will be reversed
“only when it is shown that the trial court misapplied the law or
abused its discretion.” 	Call v. City of West Jordan, 727 P.2d
180, 183 (Utah 1986).
ANALYSIS
I. 	THE INSURANCE CODE GRANTS A PRIVATE RIGHT OF ACTION
¶13 	The Purchasers have brought their claims at issue in
this appeal under section 31A-15-105(2) of the Utah Code. 	These
claims survive only if section 31A-15-105(2) grants a private
right of action to the Purchasers as policyholders.
¶14 	The primary purpose of interpreting a statute “‘is to
give effect to the legislature’s intent.’” 	LPI Servs. v. McGee,
2009 UT 41, ¶ 11, 215 P.3d 135 (quoting Savage v. Utah Youth
Vill., 2004 UT 102, ¶ 18, 104 P.3d 1242). 	The best evidence of
that intent is found in the plain language of the statute. 	Davis

3 Because there have been no substantive changes to the
relevant statutes that would affect this opinion, we cite to the
current versions.
No. 20080985 	6
v. Provo City Corp., 2008 UT 59, ¶ 13, 193 P.3d 86. 	To determine
the meaning of the plain language, we examine the statute “‘in
harmony with other statutes in the same chapter and related
chapters.’” 	LPI Servs., 2009 UT 41, ¶ 11 (quoting Miller v.
Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592); see also R&R Indus. Park,
L.L.C. v. Utah Prop. & Cas. Ins. Guar. Ass’n, 2008 UT 80, ¶ 23,
199 P.3d 917 (“If the plain language is unambiguous then we need
not look beyond it and no other interpretive tools are needed in
analyzing the statute.” (citation omitted)).
¶15 	Section 31A-15-105(2) provides: “An insurance policy
entered into in violation of this chapter is voidable by the
policyholder who entered into the transaction without knowing it
was illegal. 	The policyholder may avoid the contract by notice
to the insurer . . . and may recover any consideration paid under
the contract.” 	(Supp. 2010) (emphases added). 3 	This text
plainly shows that the legislature intended to render a policy
entered into in violation of Chapter 15 “voidable” by the
policyholder. 	Voidable means the contract is “capable of being
affirmed or rejected at the option of one of the parties.”
Black’s Law Dictionary 1709 (9th ed. 2009). 	Section 31A-15-
105(2) allows the policyholder to affirm or reject the contract
if the insurance contract was “entered into in violation of
[Chapter 15].” 	Thus, if policyholders find that they have
entered into a contract with an unauthorized insurer, they may,
“by notice to the insurer,” void the contract and “recover any
consideration paid under the contract.” 	Utah Code Ann. § 31A-15-
105(2). 	Having been given a right to recover the consideration
paid, policyholders may enforce this right by bringing an action
against the insurer in court. 	Thus, section 31A-15-105(2) vests
in the policyholder a private right of action.
¶16 	The foregoing conclusion is strengthened when we
consider the purposes of Chapter 15 as a whole. 	One of the
purposes of Chapter 15 is to “subject unauthorized insurers and
other persons doing an insurance business in Utah to the
jurisdiction of the Utah commissioner and courts.” 	Id. § 31A-15-
101(2) (2008) (emphasis added). 	This language makes it clear
that the right of a policyholder to void a policy under section
31A-15-105(2) and to recover the consideration paid under the
contract may be protected by the courts. 	Thus, both the plain

7 	No. 20080985
language of section 31A-15-105(2) and the purpose underlying
Chapter 15 support our holding that a policyholder has a private
right of action that may be enforced in court.
¶17 	The Car Dealers argue that this reading of section 31A-
15-101(2) is not in harmony with section 31A-2-201 of the Utah
Code, which states: “The commissioner shall administer and
enforce this title. . . . 	The commissioner shall inquire into
violations of this title . . . to determine: (a) whether or not
any person has violated any provision of this title; or (b) to
secure information useful in the lawful administration of this
title.” Id. 	§ 31A-2-201(1), (6) (Supp. 2010). 	The Car Dealers
interpret this section as giving the Insurance Commissioner
exclusive power to enforce violations under Title 31A. 	They
argue that the courts may only protect the rights of the
policyholder after the Commissioner has determined that a
violation has occurred. 	We disagree.
¶18 	The language in section 31A-2-201 does not grant the
Insurance Commissioner the exclusive right to enforce Chapter 15.
While the section does vest the Insurance Commissioner with the
right to enforce the code, it does not say no one else may do so.
Indeed, section 31A-15-101(2) plainly extends jurisdiction over
persons doing insurance business not only to the Insurance
Commissioner, but also to the courts. 	Thus, a policyholder need
not wait for action by the Insurance Commissioner before
commencing litigation against an insurer under Title 31A.
Instead, the policyholder may give notice to the insurer and file
a lawsuit to recover any consideration paid under the policy as
permitted by section 31A-15-105(2).
¶19 	The Car Dealers cite the legislative history of section
31A-15-101(2) in an attempt to convince us that the purpose of
Chapter 15 is contrary to what its plain language suggests.
However, this section is unambiguous. 	There can only be one
meaning applied to the phrase, “the jurisdiction of the Utah
commissioner and courts.” 	Id. § 31A-15-101(2) (emphasis added).
Because section 31A-15-101(2) contains no ambiguity in granting
jurisdiction to the courts, we need not look beyond the language
of the statute.
¶20 	Furthermore, our interpretation is supported by Surety
Underwriters v. E & C Trucking, Inc., 2000 UT 71, 10 P.3d 338.
In that case, the plaintiff brought suit against the defendant
seeking to enforce an insurance contract. 	We found that the
plaintiff, by entering into the contract when it was not

4 The text of section 31A-15-105(1) provides: “An insurance
contract entered into in violation of this chapter is
unenforceable by, but enforceable against, the insurer. 	In an
action against the insurer on the contract, the insured is bound
by the terms of the contract as affected by this title and rules
adopted under this title.” (Supp. 2010).
No. 20080985 	8
authorized to do so, had violated Chapter 15. 	Id. ¶ 40. 	We
applied section 31A-15-105(1) to render the contract
unenforceable against the defendant. 4 	Id. ¶ 41. 	Thus, we have
previously used section 31A-15-105 as a basis for determining
whether an insurer has violated Chapter 15.
¶21 	Finally, the Car Dealers argue that allowing a party to
circumvent the authority of the Utah Insurance Department by
asserting regulatory claims in court would defeat the entire
regulatory nature of the Insurance Code. 	We disagree. 	At most,
section 31A-15-105(2) allows a party to void a contract entered
into with an unauthorized insurer and obtain any consideration
paid for the contract. 	Only the policyholder is entitled to any
remedy, and it does not allow for a private cause of action for
any other violation of the Insurance Code. 	The Car Dealers argue
that, as a matter of policy, the Insurance Department possesses
specialized skills and knowledge about whether an insurer is
unauthorized to do business in Utah. 	However, we find that a
district court is also capable of making that determination.
¶22 	Thus, the plain language of section 31A-15-105(2)
expressly grants a private right of action to the policyholder.
We affirm the district court’s holding.
II. 	THE CLASS ACTIONS WERE PROPERLY CERTIFIED UNDER RULE 23
¶23 	The criteria to be applied by the district court in
certifying a class action are found in rule 23 of the Utah Rules
of Civil Procedure. 	A class may only be certified if:
(1) the class is so numerous that joinder of
all members is impracticable, (2) there are
questions of law or fact common to the class,
(3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class, and (4) the
representative parties will fairly and

9 	No. 20080985
adequately protect the interests of the
class.
Utah R. Civ. P. 23(a). 	These four criteria are respectively
referred to as (1) numerosity, (2) commonality, (3) typicality,
and (4) adequacy of representation.
¶24 	In addition to the requirements of rule 23(a), the
class action may be maintained only if it falls into one of the
three categories found in rule 23(b). 	The district court, as
requested by the Purchasers, applied rule 23(b)(3) to this case.
Thus, certification is appropriate only if the district court
also “finds that the questions 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.” Id. 23(b)(3). 	These additional two criteria
are referred to as predominance and superiority.
¶25 	The Car Dealers argue that the district court abused
its discretion in finding commonality, typicality, and adequacy
of representation under rule 23(a), and in finding predominance
and superiority under rule 23(b)(3). 	We will address each of
these requirements of rule 23 below.
¶26 	In applying the rule 23 criteria, the district court
must take the substantive allegations in the complaint as true.
Shook v. El Paso Cnty., 386 F.3d 963, 968 (10th Cir. 2004); J.B.
v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999). 	However,
the court “‘need not blindly rely on conclusory allegations which
parrot Rule 23.’” 	Shook, 386 F.3d at 968 (quoting J.B., 186 F.3d
at 1290 n.7). 	While the court may consider evidence relevant to
the plaintiff’s claims, the court may not inquire into the merits
of the case. 	Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78
(1974).
A. 	The Commonality Requirement Has Been Met
¶27 	Commonality requires only that a single issue of fact
or law be common to each class member. 	J.B., 186 F.3d at 1288;
Ditty v. Check Rite, Ltd., 182 F.R.D. 639, 642 (D. Utah 1998).
To have a common issue, there must be a “discrete legal question
of some kind.” 	J.B., 186 F.3d at 1289. 	Simply asserting
systematic violations of the law is not sufficient to meet the
requirement of commonality, because it does not present a common
question. 	Id. 	The district court is given wide discretion in

5 We acknowledge that class actions may be certified early
in the litigation but note some concern over the broad nature of
these questions. 	While we are not prepared to find an abuse of
discretion at this point in the litigation, we note that the
district court may, as discovery progresses, amend its order
under rule 23(c)(1) of the Utah Rules of Civil Procedure, better
tailoring the common questions to the claims made by the
Purchasers.
No. 20080985 	10
determining commonality, “because it is ‘in the best position to
determine the facts of the case’” and the “‘consequences of
alternative methods of resolving the issues.’” 	Id. (quoting
Boughton v. Cotter Corp., 65 F.3d 823, 826 (10th Cir. 1995)).
¶28 	The district court found that commonality exists in
each of the classes proposed by the Purchasers. 	First, for the
classes arising from the Purchasers’ VTP claims, the district
court certified three classes defined as (1) all those who had
purchased VTP products from Midway Auto Plaza, (2) all those who
had purchased “Edge Guard” products from Midway Auto Plaza, and
(3) all those who had purchased “Edge Guard” products from Mike
Riddle Mitsubishi. 	The district court determined that a common
question among these classes was, “whether the defendants’
vehicle theft policies violate the Utah Insurance Code, and if
so, which legal remedies are available?” 	Second, for the classes
arising from the Purchasers’ GAP claims, the district court
certified two classes defined as (1) all those who had purchased
GAP insurance from Midway Auto Plaza and (2) all those who had
purchased GAP insurance from Mike Riddle Mitsubishi. 	The
district court determined that a common question among these
classes was, “whether the defendants’ GAP policies violate the
Utah Insurance Code, and if so, which legal remedies are
available?” 	Third, for the classes arising from the Purchasers’
doc fee claims, the district court certified two classes defined
as (1) all those who had purchased a vehicle from Midway Auto
Plaza and (2) all those who had purchased a vehicle from Mike
Riddle Mitsubishi. 	The district court determined that a common
question among these classes was “whether the defendant’s actions
violated the law and thus render the documentary fee provisions
of the sales contract invalid?” 5 	Each of these questions is
discrete and common among the respective class members.
Therefore, we find no abuse of discretion in the district court’s
finding on commonality.

11 	No. 20080985
¶29 	Because the district court certified the VTP and GAP
class actions based only on a violation of section 31A-15-105(2)
of the Utah Code, and not based on any other claim made by the
Purchasers, this is the only question concerning the VTP and GAP
class actions that we address on appeal. 	Similarly, the district
court certified the doc fee claims based only on the question of
whether the Car Dealers’ actions violated the law, and not based
on the individual claims made by the Purchasers. 	Therefore, this
is the only question concerning the certification of the doc fee
class actions that we address.
¶30 	The Car Dealers make two arguments against the district
court’s findings. 	First, they argue that there was no common
plan or scheme perpetuated by the Car Dealers against the members
of the class. 	Second, they argue that resolution of the common
questions in each action would require individual inquiry into
each purchaser’s claim.
¶31 	The Car Dealers’ first argument misconstrues the
requirements of commonality. 	The district court was required to
find only a common question of law or fact among each member of
the class that would have to be resolved in order for any class
member to recover in a claim. 	Utah R. Civ. P. 23(a)(2); J.B.,
186 F.3d at 1288. 	It was not required to find a common plan or
scheme by the defendants. 	Commonality is principally concerned
with the characteristics of the class, not of the defendant in a
class action. 	1 Alba Conte & Herbert B. Newberg, Newberg on
Class Actions § 3:13 (4th ed. 2002). 	As noted above, the
district court found a common question for each class.
¶32 	The second argument by the Car Dealers is that each
proposed class lacks commonality because resolving the questions
in each class would require inquiries into the factual
circumstances of each individual purchase. 	The Car Dealers list
possible factual differences for each claim. 	For instance, they
point to the doc fees claims and argue that some class members
may not have been overcharged, some class members may have seen
an explanation of the fees prior to signing the contract, and
some class members may have understood and accepted the doc fees.
Likewise, they argue the claims for VTP products and GAP
insurance also contain factual variances. 	Class members
purchased different types of VTP products. 	Both the VTP products
and GAP insurance may have had different administrators and
underwriters for each purchaser. 	The Car Dealers argue that
maintaining these classes would cause this case to “devolve into
a series of individual trials on issues peculiar to each

No. 20080985 	12
plaintiff.” 	Zapata v. IBP, Inc., 167 F.R.D. 147, 166 (D. Kan.
1996). 	We disagree.
¶33 	Although there may be varying factual differences
between each purchaser within each class, there still remains a
common question that must be answered for any class member to
recover. 	Concerning VTP products and GAP insurance, the district
court stated “the primary consideration is whether the defendants
sold the plaintiffs an insurance product at a time when the
defendants did not have a license to sell insurance products. 	It
is irrelevant whether these products had different administrators
and/or different underwriters.” 	Likewise, concerning doc fees,
the district court found the common question to be, “whether the
appellants’ actions violate the law and thus render the
documentary fee provisions of the sales contract invalid?”
¶34 	There will often be individual factual issues in a
class action. 	The presence of these issues, however, does not
necessarily prevent a district court from finding commonality.
Payne v. Goodyear Tire & Rubber Co., 216 F.R.D. 21, 25 (D. Mass.
2003); Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185
(N.D. Ill. 1992); 4 Conte & Newberg, supra § 13:16. 	“[T]he
commonality requirement has been characterized as a low hurdle
easily surmounted.” 	Scholes, 143 F.R.D. at 185 (internal
quotation marks omitted). 	We do not find that the potential
individual issues argued by the Car Dealers justify preventing
the trial court from exercising its discretion in favor of
certification at this point.
¶35 	One reason that district courts are allowed such broad
discretion is that rule 23(c)(1) of the Utah Rules of Civil
Procedure grants the district court the ability to alter or amend
the order of class certification before the decision on the
merits. 	Thus, if it becomes necessary, the class action may be
amended to contain subclasses to meet the factual pattern of the
case. 	Furthermore, if it is found by the district court that the
individual transactions of the class members are too varied to be
categorized into subclasses, it is within the discretion of the
court to decertify the class. 	Therefore, we hold that the
district court did not abuse its discretion in finding
commonality in these classes.
B. 	The Typicality Requirement Has Been Met
¶36 	“The question of typicality . . . is closely related to
the preceding question of commonality. 	A named plaintiff’s claim

13 	No. 20080985
is typical if it arises from the same event or practice or course
of conduct that gives rise to the claims of other class members
and [is] based on the same legal theory.” 	Ditty, 182 F.R.D. at
642 (alterations in original)(internal quotation marks omitted).
Furthermore, “minor factual variations will not defeat the
formation of the class.” 	Id.
¶37 	In the current case, the district court verified that
every class has a representative with the same claims and legal
theories as the other class members. 	Every other argument the
Car Dealers make against typicality has been addressed in our
discussion of commonality above. 	Therefore, we hold that the
district court did not abuse its discretion in finding
typicality.
C. 	The Adequacy of Representation Requirement Has Been Met
¶38 	The two factors that must be considered in determining
whether the class representatives will fairly and adequately
represent the interests of the class members are (1) “whether the
[representatives] have interests antagonistic to those of the
class” and (2) “the class attorney’s qualifications, experience,
and ability to conduct the litigation.” 	Id. 	The first prong
ensures that “[a] class representative must be part of the class
and possess the same interest and suffer the same injury as the
class members.” 	Amchem Prods, Inc. v. Windsor, 521 U.S. 591,
625-26 (1997) (internal quotation marks omitted). 	The
representative’s understanding of the lawsuit or the
representative’s character is given little weight in determining
whether they are an adequate representative. 	Ditty, 182 F.R.D.
at 642. 	This is because class representatives are “generally
laypeople and they are not expected to prosecute their own action
or that of the class.” 	1 Conte & Newberg, supra § 3:24. 	For
this reason, the second prong focuses on the qualifications of
the representative’s counsel. 	See Ditty, 182 F.R.D. at 642-43
(finding attorney to be adequate for class representation where
he had represented plaintiff classes on several occasions, shown
an ability to advance the costs of the litigation on behalf of
his client, and had shown adequate legal abilities); see also
Amchem, 521 U.S. at 626 n.20.
¶39 	The district court determined that the class
representatives did not have interests antagonistic to those of
the classes. 	This determination was made despite evidence that
some class representatives did not fully understand what it meant
to be a class representative, some neglected to list the class

No. 20080985 	14
claim as the reason they are upset, some did not complain about
being charged for the products, and some did not know what doc
fees were.
¶40 	While it appears that some of the class representatives
may not have a full understanding of their lawsuit, both the
representatives and the class members have an interest in
adjudicating the questions certified to the class. 	There is no
evidence in the record suggesting that in prosecuting these
questions in their own claim, the representatives will not meet
the interests of the class members as well. 	Therefore, it was
not an abuse of discretion for the district court to find that
the representatives did not have interests antagonistic to those
of the class.
¶41 	Because the Car Dealers concede that the
representatives’ attorneys are qualified, experienced, and able
to conduct this litigation, we do not need to address that issue.
D. 	The Predominance Requirement Has Been Met
¶42 	Like typicality, the predominance requirement also
closely resembles the commonality requirement. 	While commonality
only requires common issues of law or fact, predominance requires
that the common issues predominate over any individual issues in
the action. 	Utah R. Civ. P. 23(b)(3). 	Thus, the predominance
requirement is “far more demanding” than the commonality
requirement. 	Amchem, 521 U.S. at 624.
¶43 	The district court found that the class action claims
predominated in this case, because the individual claims had been
severed from the lawsuit. 	In fact, the class action claims are
the only claims disputed in this litigation. 	Therefore, they
must predominate. 	It was not an abuse of discretion for the
district court to find that the predominance requirement has been
met.
E. 	The Superiority Requirement Has Been Met
¶44 	In determining whether superiority has been met, the
district court should consider:
(A) the interest of members of the class in
individually controlling the prosecution or
defense of separate actions; (B) the extent
and nature of any litigation concerning the

15 	No. 20080985
controversy already commenced by or against
members of the class; (C) the desirability or
undesirability of concentrating the
litigation of the claims in the particular
forum; (D) the difficulties likely to be
encountered in the management of a class
action.
Utah R. Civ. P. 23(b)(3).
¶45 	The district court analyzed each of the four factors
individually and determined that a class action would be superior
to individual actions. 	First, it found that each class member’s
claim would be too small to be worthwhile to litigate separately.
Second, it found that there would be little effect on competing
litigation. 	This finding was based on the fact that the claims
severed from this litigation are not based on the same issues and
questions. 	Third, the district court found that resolution of
the case in a single forum would be desirable to ensure
consistent verdicts and to further judicial economy. 	Fourth, it
found that difficulties would not likely be encountered in the
management of the class action. 	Each of these findings is
supported by the record and is within the discretion of the
district court.
¶46 	The Car Dealers argue that among the representatives,
there are twenty-five other lawsuits which will proceed
regardless of the decision in the class action claims, and that
the Purchasers have a strong interest in pursuing the class
action claims in these individual lawsuits. 	However, it would be
extremely inefficient to require each class member to pursue the
certified questions in individual actions; furthermore, it might
lead to inconsistent results. 	Thus, the interests of
concentrating these actions in a single forum outweigh the
interests of requiring the plaintiffs to pursue the class action
claims in their individual lawsuits.
¶47 	Next, the Car Dealers argue that management of the
class action will prove impossible. 	They claim that resolution
of the certified questions will require individual inquiries into
the particular circumstances of each class member’s experience.
As discussed above, the district court found that the issues were
not dependent on the individual facts of each case, but that the
questions were common to each class member. 	It was not an abuse
of discretion for the district court to find that a class action
would be superior to individual litigation.

No. 20080985 	16
CONCLUSION
¶48 	We hold that section 31A-15-105(2) of the Utah Code
creates a private right of action that falls within the
jurisdiction of the courts. 	Therefore, we affirm the district
court’s order denying the Car Dealers’ motion to dismiss. 	We
also hold that the district court’s analysis in certifying the
class actions was sufficiently rigorous to meet the demands of
fairness and justice required by rule 23 of the Utah Rules of
Civil Procedure. 	Therefore, the district court did not abuse its
discretion, and we affirm its order certifying the class actions.
---
¶49 	Associate Chief Justice Durrant, Justice Parrish,
Justice Nehring, and Judge Dever concur in Chief Justice Durham’s
opinion.
¶50 	Justice Wilkins does not participate herein; District
Judge L. A. Dever sat.