The Georgia Court of Appeals recently reversed a trial court’s denial of class certification in Doe v. Vest Monroe, LLC, 368 Ga. App. 572 (2023). The Court of Appeals’ rare reversal of a class certification denial may be helpful for Georgia class action plaintiffs going forward, and suggests that class action defendants should be careful when relying on commonality and typicality arguments to oppose class certification.
Factual and Procedural Background
John Doe was a patient at Ridgeview Institute Monroe, a private mental health and substance abuse treatment facility. He filed a proposed class action lawsuit against the owner of Ridgeview and others (together, “Ridgeview”), alleging that Ridgeview’s conduct had enabled a former Ridgeview employee to disclose to unauthorized individuals the legally protected records of more than 1,400 Ridgeview patients. Doe alleged breach of an express and an implied contract; unjust enrichment; negligence; negligence per se; negligent misrepresentation; common law invasion of privacy; breach of confidentiality and confidential relations; and violation of Georgia’s Uniform Deceptive Trade Practices Act. He sought damages, injunctive relief, and attorney fees.
The trial court denied class certification, holding that Doe had not satisfied two of the four threshold requirements set out at OCGA § 9-11-23(a). Specifically, the court held that while Doe had established numerosity and Doe and his counsel were “not inadequate,” Doe had not established there were sufficient questions of law or fact common to the class or that his claims were typical of the claims of the class.
With respect to the commonality requirement of OCGA § 9-11-23(a), the trial court found that two issues defeated commonality. First, the former employee who allegedly disclosed patient records was entitled to receive some of the records she disclosed but not others. Second, some of the proposed class members had aspects of their clinical file disclosed, while others had only biographical information and the fact of their hospitalization disclosed. In addition, the trial court found that Doe did not satisfy the typicality requirement of OCGA § 9-11-23(a) because some of the putative class members had clinical information revealed whereas Doe had not.
The trial court did not reach Doe’s assertion that he had satisfied the requirements of OCGA § 9-11-23(b)(3).
The Court of Appeals’ Opinion
Doe appealed the trial court’s denial of class certification, arguing the trial court abused its discretion in finding that he had not established commonality and typicality. The Court of Appeals agreed, although Judge Brown dissented.
The Court of Appeals rejected the trial court’s finding that commonality was not satisfied because the former Ridgeview employee who allegedly disclosed patient records was entitled to receive some of the records she disclosed but not others. The Court of Appeals found that this did not defeat commonality because whether the former employee rightfully or wrongfully accessed the documents, it was undisputed that she was not authorized to disclose them.
Second, the Court of Appeals rejected the trial court’s finding that commonality and typicality were not satisfied because some of the proposed class members had aspects of their clinical file disclosed while others had only biographical information and the fact of their hospitalization disclosed. The Court of Appeals found that the fact that plaintiffs had different kinds of documents disclosed did not defeat commonality or typicality because a common question existed (i.e., whether Ridgeview’s policies and procedures enabled the former employee to disclose information identifying plaintiffs as patients of a psychiatric and drug-treatment facility). Notably, the Court of Appeals suggested that individualized issues related to damages do not defeat commonality but may defeat predominance. See Vest Monroe, 368 Ga. App. at 578.
In reaching its decision, the Court of Appeals cited to federal decisions stating that a plaintiff must meet a “relatively low bar” to establish commonality and that “even a single common question will do.” The Court of Appeals also described the typicality requirement as “undemanding.” Id. at 577-79.
Judge Brown dissented, stating that the trial court did not abuse its discretion in finding that Doe failed to carry his burden of establishing commonality. Id. at 579-80.
What Happens Next?
The Georgia Supreme Court may review the Court of Appeals’ decision (as Ridgeview has filed a petition for certiorari). And even if the Georgia Supreme Court denies certiorari or affirms the Court of Appeals’ decision, Ridgeview still may be able to prevent class certification. Neither the trial court nor the Court of Appeals has determined whether Doe's has satisfied the requirements of OCGA § 9-11-23(b)(3), and the Court of Appeals’ decision seems to leave open the possibility that Doe has failed to satisfy the predominance requirement of OCGA § 9-11-23(b)(3).
Practice Pointers for Class Action Plaintiffs and Defendants
For Georgia class action plaintiffs, the Court of Appeals’ decision demonstrates that it is not impossible to reverse a trial court’s denial of class certification on appeal. Although this type of reversal is unusual given the “abuse of discretion” standard of appellate review, plaintiffs may consider appealing a trial court’s denial of class certification based on a lack of commonality and/or typicality depending on the underlying facts and the trial court’s order. The Court of Appeals’ decision is also potentially favorable for Georgia plaintiffs pursuing invasion of privacy class actions.
While defense lawyers may view this decision skeptically, experienced plaintiffs’ class action lawyer Chris Hall of Hall & Lampros, LLP welcomed the decision. Offering a view from the plaintiffs’ bar, Hall observed that the appellate court correctly applied the “relatively lenient” standard to meet commonality and typicality under O.C.G.A. § 9-11-23.
“This case shows how unpredictable class certification decisions on complex cases can be, and the need for a Plaintiff’s practitioner to clearly articulate overriding issues that support class certification,” Hall said.
For Georgia class action defendants, the Court of Appeals’ decision suggests that relying on commonality and typicality defenses may not be the most effective strategy to oppose class certification. Defendants may have a better chance of preserving a denial of class certification on appeal by focusing on lack of predominance under OCGA § 9-11-23(b)(3). In particular, while individualized issues with respect to damages may not defeat commonality, the Court of Appeals has held that individualized damages issues are relevant to predominance and can defeat predominance. See Ansley Walk Condo. Ass'n v. Atlanta Dev. Auth., 362 Ga. App. 191, 199 (2021).
Should you have any questions, please contact Bob Alpert, Jeff Douglass, or Doug Hance at Morris, Manning & Martin, LLP.
