I concur in the result. I write specially to discuss briefly the concerns expressed by the respondents, Truman and Eloise McIlwain, regarding filing priority and abatement in class actions.

The practice of "conditionally certifying" classes has become almost routine in this *Page 206 state. In fact, the McIlwains' brief lists no fewer than 23 cases recently commenced in 15 Alabama counties in which such orders have been granted.¹¹ One of these actions was commenced in 1995; 22 were commenced in 1996. In fact, as this Court has considered this present case, it has had before it no fewer than four other cases involving this precise issue. We have today decided those four other cases. See Ex parte AmericanBankers Life Assurance Co. of Florida, 715 So.2d 186 (Ala. 1997) (conditional certification); Ex parte First National Bankof Jasper, 717 So.2d 342 (Ala. 1997) (conditional certification); Ex parte Equity National Life Ins. Co.,715 So.2d 192 (Ala. 1997) (conditional certification); and Ex parteMercury Finance Corp. of Alabama, 715 So.2d 196 (Ala. 1997) (conditional certification).

I cannot state more succinctly the concerns expressed by the McIlwains than by quoting their brief directly:

"[T]he conditional certification procedure is mandated by the abatement rule adopted by this Court in Ex parte [First Nat'l] Bank of Jasper, [675 So.2d 348 (Ala. 1995) ('FNB of Jasper I')]. Under [FNB of Jasper I], when any trial court issues an order of class certification, it abates all other class action proceedings involving the same claims. If a trial court does not certify a case promptly, then another trial court may certify the same claims and abate the proceeding in the initial trial court. It is no coincidence that the Court of Civil Appeals decision in [Ex parte Voyager Guaranty Insurance Co., 669 So.2d 198 (Ala.Civ.App. 1995),] came only a few months after this Court's decision in [FNB of Jasper I]. A prompt certification order is needed to protect the jurisdiction of the trial court while it engages in the ongoing assessment of whether it will enter a final judgment with a certified class. The lack of a conditional certification procedure would invite a 'race for justice' where class discovery and class certification evidentiary hearings would be conducted in multiple courts until one issues an order of certification.

"[Since FNB of Jasper I], trial courts throughout this state have followed the conditional certification procedure to protect their jurisdiction. . . . This Court should remember that in Alabama, there is no procedure for coordinating related litigation in various Circuits of the State. Compare the Multi-District Litigation Procedure in the federal system. Instead, [this state] has applied the abatement rule that the Legislature has mandated by statute. Conditional certification is a simple and efficient mechanism that is used to implement the abatement rule and to avoid duplicative class litigation."

That is precisely what we have done. In Ex parte State MutualIns. Co., 715 So.2d 207 (Ala. 1997), we have today overruledFNB of Jasper I. In doing so, we eliminated the conditions that resulted in the "race for justice," of which the McIlwains complain. See also Ex parte First National Bank of Jasper,717 So.2d 342 (Ala. 1997), also decided today, in which we discuss more fully the implications of the abrogation of the FNB ofJasper I rule for the issues involved in this case.

Henceforth, trial courts are to return to the rule applied inEx parte Liberty National Life Insurance Co., 631 So.2d 865 (Ala. 1993). Under that rule, the first court in which a complaint containing class allegations is filed has exclusive jurisdiction of the action until that court affirmatively decides whether or not a class certification is proper. *Page 207 In Ex parte First National Bank of Jasper we explained:

"This is the rule that should have been applied in FNB of Jasper I . . . . Its application in class-action cases will obviate the need — real or perceived — for ex parte or conditional certification as a means of protecting jurisdiction. This is so, because, under this rule, a first-filed case containing class allegations cannot be preempted by certification in a later-filed class action. This rule entirely undercuts the rationale on which the certification was expressly based in this case."

ALMON and SHORES, JJ., concur.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 201

This mandamus petition arises from a trial court's conditional certification of a class action. Citicorp Acceptance Company, Inc. ("Citicorp"), seeks a writ of mandamus directing the Choctaw Circuit Court to decertify the class. Citicorp contends that the trial court abused its discretion by: (1) basing certification solely on the allegations of the plaintiffs in their amended counterclaim; and (2) certifying the class without first giving notice to Citicorp. We agree with both contentions; therefore, we grant the writ.

"All persons who at any time during the six years prior to the filing of the original Counterclaim, were a party to a loan *Page 202 agreement with Citicorp for the purchase of personal property, had a policy of insurance placed on the collateral securing the loan to Citicorp for whatever reason, and had the amount of their insurance coverage calculated on the sum total of remaining payments or the original purchase price of the mobile home or other personal property rather than the lesser of either the actual outstanding balance due under the loan agreement or the fair market value of the mobile home or personal property."

The trial court named the McIlwains as class representatives.

Citicorp moved the trial court to vacate the class action order and to reconsider the class certification, alleging that the Rule 23(a), Ala. R. Civ. P.,⁴ safeguards had been disregarded. Citicorp also moved for dismissal of the amended complaint, with its class allegations, as untimely. The trial court denied both motions and ordered the parties to proceed with discovery. Citicorp filed this petition for a writ of mandamus.

Citicorp asserts that the trial court abused its discretion when it certified the class solely on the basis of the McIlwains' pleading, and that this certification improperly shifted the burden of proof to the defendant. Citicorp now finds itself having to produce sufficient evidence to undo the class certification, even though the McIlwains have not satisfied their initial burden to meet the Rule 23 prerequisites.

The McIlwains claim that this conditional certification is in accord with the requirement of Rule 23 that "[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained." Ala. R. Civ. P., Rule 23(c)(1). They contend that this Court should promote, not limit, ex parte conditional certification. This, they argue, is compelled by the abatement rule, by which certification of a conditional class prevents another court from certifying a class on the same issues,⁶ and by the fact that class certification *Page 203 protects the class by tolling the running of the statutory period of limitations and giving early notice to class members.⁷

While conditional certification of a class action is allowed, simply labeling a class certification as "conditional" does not relieve the trial court of its obligation to conduct a rigorous analysis and to require the plaintiff to carry its burden of proof as to the appropriateness of class treatment under Rule 23(a). Castano v. American Tobacco Co., 84 F.3d 734, 741 (5th Cir. 1996).⁸ All classes are "conditional" in that they are subject to decertification. As the Court of Appeals for the Third Circuit stated in In re General Motors Corp. Pick-UpTruck Fuel Tank, 55 F.3d 768, 792 n. 14 (3d Cir. 1995):

"[C]onditional is actually a term that can be properly applied to all class actions, even those that are certified in the normal process. Under Rule 23(c)(1), the court retains the authority to re-define or decertify the class until the entry of final judgment on the merits. This capacity renders all certification orders conditional until the entry of judgment."

In Castano, based solely on the pleadings before the court, the plaintiffs sought and received certification of a nationwide class of all smokers and nicotine-dependent persons and their families. Although the certification was labeled "conditional," the Court of Appeals for the Fifth Circuit decertified the class, because the district court had failed to consider how variations in state law would affect predominance and superiority, and because the district court's predominance inquiry had not included a consideration of how a trial on the merits would be conducted. Id., 84 F.3d at 742.

The seminal and frequently cited case of General TelephoneCo. of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364,72 L.Ed.2d 740 (1982), demonstrates that class actions may not be approved lightly and that the determination of whether the prerequisites of Rule 23 have been satisfied requires a "rigorous analysis." In Falcon the trial court failed to meet this "rigorous analysis" standard. Falcon, a Mexican-American, sued his employer, General Telephone, making class allegations and contending that he was denied a promotion because, he said, General Telephone's promotion policy operated to disadvantage Mexican-Americans. A federal district court, based on these allegations and without conducting an evidentiary hearing, certified a class consisting of Mexican-American job applicants and employees. The United States Supreme Court held that it was improper to certify such a class based on the mere allegation of discrimination and that no class was properly certifiable unless the party seeking certification specifically demonstrated the Rule 23(a) prerequisites of numerosity, commonality, typicality, and adequacy *Page 204 of representation. Id. The burden of satisfying each of these prerequisites rests solely on the party seeking certification, and the court cannot approve class certification until it has adequate information before it to satisfy each of the prerequisites. Ex parte Blue Cross Blue Shield, 582 So.2d at 475.

The "rigorous analysis" standard ordinarily requires the trial court to go beyond the bare allegations of the complaint. As the Court of Appeals for the Fifth Circuit stated inCastano, 84 F.3d at 744, "[g]oing beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues." See also, Rodriguez v. Banco Central, 102 F.R.D. 897, 903 (D.P.R. 1984) (stating that examination of the complaint alone will not suffice); King v. Gulf Oil Co., 581 F.2d 1184, 1186 (5th Cir. 1978) (stating that "[t]he propriety of class action suits can seldom be determined on the basis of the pleadings alone, and . . . it is the duty of the trial court to hold an evidentiary hearing before deciding whether to grant or deny class certification"); and Morrison v. Booth, 763 F.2d 1366, 1371 (11th Cir. 1985) (stating that bare allegations do not satisfy the prerequisites of Rule 23).

The McIlwains also contend that the trial court's order in this case is supported by Ex parte Green Tree Financial Corp.,684 So.2d 1302 (Ala. 1996), and Ex parte Masonite Corp.,681 So.2d 1068 (Ala. 1996). Their reliance on these cases is misplaced. In Green Tree, there was "extensive briefing" and there was argument before the certification hearing. GreenTree, 684 So.2d at 1304. Even so, this Court reversed the class certification, stating that the trial court had "entered an order based upon little or no evidentiary underpinnings" and that "[t]he order merely parrot[ed] the formulaic language of Rule 23(a)," Id. at 1307. This Court did not decertify the class in Masonite, but that class was certified only after discovery, briefing, and a class certification hearing.Masonite, 681 So.2d at 1069.

The pleading relied on in the present case, like that relied on in Green Tree, amounts to bare allegations and fails to offer a sufficient basis for the trial court to certify the class. Reliance solely on the allegations of the plaintiff, where the defendant has not even been notified, does not provide the basis for a "rigorous analysis."

Although the certification order in this case does outline the prerequisites of Rule 23 and does state that each has been met, the trial court: (1) did not test whether the McIlwains could fairly and adequately protect the interest of the class — class representation requires more than having the competence to hire legal counsel;⁹ and (2) certified what appears to be a nationwide class without addressing such issues as choice of law and whether the acts of Citicorp were legal in other states. Phillips Petroleum Co. v. Shutts, 472 U.S. 797,818, 105 S.Ct. 2965, 2977-78, 86 L.Ed.2d 628 (1985) (requiring "the state to have significant contact or sufficient aggregation of contacts" to the claims asserted by each plaintiff to ensure that the choice of law was not arbitrary or unfair to the defendant).¹⁰ *Page 205

A class should not be certified without notice to the defendant, who may be able immediately and definitively to dispute the plaintiff's allegations. As Judge Nelson stated inBrewer v. Campo Electronics Appliances Computers, Inc., CV 96-N-1172-W at n. 1 (N.D.Ala., Aug. 9, 1996) (unpublished), a case in which he vacated an order that conditionally certified a class without notice having been given to the defendants:

"The practice, apparently adopted by some Alabama judges, of conditionally certifying class actions before service of process and without affording a defendant an opportunity to be heard on the theory that the defendant will later have an opportunity to demonstrate why the class should not have been certified hardly seems consistent with the requirement of Rule 23, Alabama Rules of Civil Procedure, that the proponent of class certification must carry the burden to prove that the requirements of Rule 23 are met. In fact, the practice seems to stand the rule on its head."

See also, Pipes v. American Sec. Ins. Co., 169 F.R.D. 382 (N.D.Ala. 1996) (stating that certifying a class without notice having been given to the defendant is "quite troubling" and that conditional certification is "the term used by the state court and plaintiff's attorney for a certification order entered without any judicial inquiry into the appropriateness of class certification under Rule 23").

WRIT GRANTED.

HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur.

ALMON, SHORES, COOK, and BUTTS, JJ., concur in the result.

KENNEDY, J., dissents.

I concur with Justice Cook's opinion concurring in the result. I concur with the rule announced today in Ex parteState Mutual Ins. Co., 715 So.2d 207 (Ala. 1997), and Ex parteFirst Nat'l Bank of Jasper, 717 So.2d 342 (Ala. 1997) — that the first action filed with class allegations should generally take precedence over later-filed actions seeking the same relief on behalf of the same alleged class. I also agree that certification of a class should not take place before notice is given to the defendant and a hearing is conducted, if a healing is necessary.

I am not sure, however, exactly what is meant by "rigorous analysis." It seems likely that the level of analysis and the requirements of proof or other substantiation of the class allegations will vary from case to case. In the cases announced today, the Court has removed the impetus toward ex parte conditional certifications. In my opinion, any further development of a standard by which certifications should be measured should await a case in which a certification has been ordered or denied after notice has been given, a hearing has been conducted, and the court has issued an order on the merits that is not tainted by the urgency prompted by Ex parte FirstNat'l Bank of Jasper, 675 So.2d 348 (Ala. 1995), First Nat'lBank of Jasper v. Crawford, 689 So.2d 43 (Ala. 1997), and Exparte Voyager Guar. Ins. Co., 669 So.2d 198 (Ala.Civ.App. 1995).

SHORES, J., concurs.

I dissent. See my opinion concurring specially in Ex parteFirst National Bank of Jasper, 717 So.2d 342 (Ala. 1997).