FIRST REGULAR SESSION
HOUSE BILL NO. 534
103RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE DIEHL.
1497H.01I DANA RADEMAN MILLER, Chief Clerk
AN ACT
To amend supreme court rule 52.08, relating to class actions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Supreme court rule 52.08 is amended, to read as follows:
52.08. Class Actions
(a) Prerequisites [to a Class Action]. One or more members of a class may sue or be sued2
as representative parties on behalf of all members only if: 3
(1) the class is so numerous that joinder of all members is impracticable[,] ; 4
(2) there are questions of law or fact common to the class[,] ; 5
(3) the claims or defenses of the representative parties are typical of the claims or6
defenses of the class[,] ; and 7
(4) the representative parties will fairly and adequately protect the interests of the class.8
(b) [Class Actions Maintainable] Types of Class Actions. [An] A class action may be9
maintained [as a class action if the prerequisites of subdivision (a) are] if Rule 52.08(a) is10
satisfied, and [in addition] if:11
(1) [the prosecution of] prosecuting separate actions by or against individual class12
members [of the class] would create a risk of:13
(A) inconsistent or varying adjudications with respect to individual class members [of14
the class which] that would establish incompatible standards of conduct for the party opposing15
the class[,] ; or16
(B) adjudications with respect to individual class members [of the class which would]17
that, as a practical matter, would be dispositive of the interests of the other members not parties18
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended
to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 534 2
to the individual adjudications or would substantially impair or impede their ability to protect19
their interests; [or]20
(2) the party opposing the class has acted or refused to act on grounds that apply21
generally [applicable] to the class, [thereby making appropriate] so that final injunctive relief22
or corresponding declaratory relief [with respect to] is appropriate respecting the class as a23
whole; or24
(3) the court finds that the questions of law or fact common to [the members of the] class25
members predominate over any questions affecting only individual members, and that a class26
action is superior to other available methods for [the fair and efficient adjudication of] fairly27
and efficiently adjudicating the controversy. The matters pertinent to [the] these findings28
include:29
(A) [the interest of members of] the class members’ interests in individually controlling30
the prosecution or defense of separate actions;31
(B) the extent and nature of any litigation concerning the controversy already32
[commenced] begun by or against [members of the] class members;33
(C) the desirability or undesirability of concentrating the litigation of the claims in the34
particular forum; and35
(D) the likely difficulties [likely to be encountered in the management of] in managing36
a class action.37
(c) [Determination by Order Whether Class Action to Be Maintained – Notice –38
Judgment – Actions Conducted Partially as Class Actions] Certification Order - Notice to39
Class Members - Judgment - Issues Classes - Subclasses.40
(1) [As soon as practicable after the commencement of an action brought as a class41
action] Certification Order.42
(A) Time to Issue. At an early practicable time after a person sues or is sued as a43
class representative, the court shall determine by order whether [it is to be so maintained. An44
order under this Rule 52.08(c)(1) may be conditional and may be altered or amended before the45
decision on the merits] to certify the action as a class action.46
(B) Defining the Class - Appointing Class Counsel. An order that certifies a class47
action shall define the class and the class claims, issues, or defenses, and shall appoint class48
counsel under Rule 52.08(g).49
(C) Altering or Amending the Order. An order that grants or denies class50
certification may be altered or amended before final judgment.51
(D) Specific Findings. In its order, the court shall make specific findings and52
conclusions to support its decision.53 HB 534 3
(2) [In any class action maintained under Rule 52.08(b)(3), the court shall direct to the54
members of the class the best notice practicable under the circumstances, including individual55
notice to all members who can be identified through reasonable effort. The notice shall advise56
each member that: 57
(A) the court will exclude the member from the class if requested by a specified date; 58
(B) the judgment, whether favorable or not, will include all members who do not request59
exclusion; and 60
(C) any member who does not request exclusion may, if desired, enter an appearance61
through counsel.] Notice.62
(A) For (b)(1) or (b)(2) Classes. For any class certified pursuant to Rule 52.08(b)(1)63
or Rule 52.08(b)(2), the court may direct appropriate notice to the class.64
(B) For (b)(3) Classes. For any class certified pursuant to Rule 52.08(b)(3), or upon65
ordering notice pursuant to Rule 52.08(e)(1) to a class proposed to be certified for purposes66
of settlement pursuant to Rule 52.08(b)(3), the court shall direct to class members the best67
notice that is practicable under the circumstances, including individual notice to all68
members who can be identified through reasonable effort. The notice may be by one or69
more of the following: United States mail, electronic means, or other appropriate means.70
The notice shall clearly and concisely state in plain, easily understood language:71
(i) the nature of the action;72
(ii) the definition of the class certified;73
(iii) the class claims, issues, or defenses;74
(iv) that a class member may enter an appearance through an attorney if the75
member so desires;76
(v) that the court will exclude from the class any member who requests exclusion;77
(vi) the time and manner for requesting exclusion; and78
(vii) the binding effect of a class judgment on members pursuant to Rule 52.08(c)(3).79
(3) [The judgment in an action maintained as a class action under Rule 52.08(b)(1) or80
Rule 52.08(b)(2), whether or not favorable to the class, shall include and describe those whom81
the court finds to be members of the class. The judgment in an action maintained as a class82
action under Rule 52.08(b)(3), whether or not favorable to the class, shall include and specify83
or describe those to whom the notice provided in Rule 52.08(c)(2) was directed, and who have84
not requested exclusion, and whom the court finds to be members of the class.] Judgment.85
Whether or not favorable to the class, the judgment in a class action shall:86
(A) for any class certified pursuant to Rule 52.08(b)(1) or Rule 52.08(b)(2), include87
and describe whom the court finds to be class members; and88 HB 534 4
(B) for any class certified under Rule 52.08(b)(3), include and specify or describe89
those whom the notice pursuant to Rule 52.08(c)(2) was directed, who have not requested90
exclusion, and whom the court finds to be class members.91
(4) [When appropriate an action may be brought or maintained as a class action with92
respect to particular issues or a class may be divided into subclasses and each subclass treated93
as a class, and the provisions of this Rule 52.08 shall then be construed and applied accordingly.]94
Particular Issues. When appropriate, an action may be brought or maintained as a class95
action with respect to particular issues.96
(5) Subclasses. When appropriate, a class may be divided into subclasses that are97
each treated as a class under this Rule 52.08.98
(d) [Orders in Conduct of Actions. In the conduct of actions to which this Rule applies,99
the court may make appropriate orders:] Conducting the Action.100
(1) [determining] In General. In conducting an action under this Rule 52.08, the101
court may issue orders that:102
(A) determine the course of proceedings or [prescribing] prescribe measures to prevent103
undue repetition or complication in [the presentation of] presenting evidence or argument;104
[(2) requiring, for the protection of the members of the class or otherwise for the fair105
conduct of the action, that notice be given in such manner as the court may direct to some or all106
of the members of any step in the action, or of the proposed extent of the judgment, or of the107
opportunity of members to signify whether they consider the representation fair and adequate,108
to intervene and present claims or defenses, or otherwise to come into the action;109
(3) imposing] (B) require, to protect class members and fairly conduct the action,110
giving appropriate notice to some or all class members of:111
(i) any step in the action;112
(ii) the proposed extent of the judgment; or113
(iii) the members' opportunity to signify whether they consider the representation114
fair and adequate, to intervene and present claims or defenses, or to otherwise come into115
the action;116
(C) impose conditions on the representative parties or on intervenors;117
[(4) requiring] (D) require that the pleadings be amended to eliminate [therefrom]118
allegations [as to] about representation of absent persons[,] and that the action proceed119
accordingly;120
[(5) dealing] or 121
(E) deal with similar procedural matters. [The orders may be combined with an order122
under Rule 62, and] 123
(2) Amending Orders. An order under Rule 52.08(d)(1) may be altered or amended124
[as may be desirable] from time to time.125 HB 534 5
(e) Settlement, Voluntary Dismissal or Compromise. [A class action shall not be126
dismissed or compromised without the approval of the court, and notice of the proposed127
dismissal or compromise shall be given to all members of the class in such manner as the court128
directs.] The claims, issues, or defenses of a certified class, or a class proposed to be129
certified for purposes of settlement, may be settled, voluntarily dismissed, or compromised130
only with the court's approval. The following procedures apply to a proposed settlement,131
voluntary dismissal, or compromise:132
(1) Notice to the Class.133
(A) Information That Parties Shall Provide to the Court. The parties shall provide134
the court with information sufficient to enable it to determine whether to give notice of the135
proposal to the class.136
(B) Grounds for a Decision to Give Notice. The court shall direct notice in a137
reasonable manner to all class members who would be bound by the proposal if giving138
notice is justified by the parties' showing that the court will likely be able to:139
(i) approve the proposal under Rule 52.08(e)(2); and140
(ii) certify the class for purposes of judgment on the proposal.141
(2) Approval of the Proposal. If the proposal would bind class members, the court142
may approve it only after a hearing and only on finding that it is fair, reasonable, and143
adequate after considering whether:144
(A) the class representatives and class counsel have adequately represented the145
class;146
(B) the proposal was negotiated at arm's length;147
(C) the relief provided for the class is adequate, taking into account:148
(i) the costs, risks, and delay of trial and appeal;149
(ii) the effectiveness of any proposed method of distributing relief to the class,150
including the method of processing class member claims;151
(iii) the terms of any proposed award of attorney's fees, including timing of152
payment; and153
(iv) any agreement required to be identified pursuant to Rule 52.08(e)(3); and154
(D) the proposal treats class members equitably relative to each other.155
(3) Identifying Agreements. The parties seeking approval shall file a statement156
identifying any agreement made in connection with the proposal.157
(4) New Opportunity to be Excluded. If the class action was previously certified158
pursuant to Rule 52.08(b)(3), the court may refuse to approve a settlement unless it affords159
a new opportunity to request exclusion to individual class members who had an earlier160
opportunity to request exclusion but did not do so.161
(5) Class Member Objections.162 HB 534 6
(A) In General. Any class member may object to the proposal if it requires court163
approval under this Rule 52.08(e). The objection shall state whether it applies only to the164
objector, to a specific subset of the class, or to the entire class, and also state with165
specificity the grounds for the objection.166
(B) Court Approval Required for Payment in Connection with an Objection. Unless167
approved by the court after a hearing, no payment or other consideration shall be provided168
in connection with:169
(i) forgoing or withdrawing an objection; or170
(ii) forgoing, dismissing, or abandoning an appeal from a judgment approving the171
proposal.172
(f) Appeals. An appellate court [may] shall permit an appeal from an order of a circuit173
court granting or denying class action certification under this Rule 52.08 [if a petition is timely174
filed as provided in Rule 84.035. The filing of a petition] but not from an order pursuant to175
Rule 52.08(e)(1). An appeal shall not stay the proceedings in the trial court unless the trial176
judge or the appellate court so orders.177
(g) Class Counsel.178
(1) Appointing Class Counsel. Unless a statute provides otherwise, a court that179
certifies a class shall appoint class counsel. In appointing class counsel, the court:180
(A) shall consider:181
(i) the work counsel has done in identifying or investigating potential claims in the182
action;183
(ii) counsel's experience in handling class actions, other complex litigation, and the184
types of claims asserted in the action;185
(iii) counsel's knowledge of the applicable law; and186
(iv) the resources that counsel will commit to representing the class;187
(B) may consider any other matter pertinent to counsel's ability to fairly and188
adequately represent the interests of the class;189
(C) may order potential class counsel to provide information on any subject190
pertinent to the appointment and to propose terms for attorney's fees and nontaxable191
costs;192
(D) may include in the appointing order provisions about the award of attorney's193
fees or nontaxable costs pursuant to Rule 52.08(h); and194
(E) may make further orders in connection with the appointment.195
(2) Standard for Appointing Class Counsel. When one applicant seeks appointment196
as class counsel, the court may appoint that applicant only if the applicant is adequate197
pursuant to Rule 52.08(g)(1) and Rule 52.08(g)(4). If more than one adequate applicant198 HB 534 7
seeks appointment, the court shall appoint the applicant best able to represent the interests199
of the class.200
(3) Interim Counsel. The court may designate interim counsel to act on behalf of a201
putative class before determining whether to certify the action as a class action.202
(4) Duty of Class Counsel. Class counsel shall fairly and adequately represent the203
interests of the class.204
(h) Attorney's Fees and Nontaxable Costs. In a certified class action, the court may205
award reasonable attorney's fees and nontaxable costs that are authorized by law or by the206
parties' agreement. The following procedures apply:207
(1) A claim for an award shall be made by motion at a time the court sets. Notice208
of the motion shall be served on all parties and, for motions by class counsel, directed to209
class members in a reasonable manner.210
(2) A class member, or a party from whom payment is sought, may object to the211
motion.212
(3) The court may hold a hearing and shall find the facts and state its legal213
conclusions.214
(4) The court may refer issues related to the amount of the award to a special215
master.216
(i) Legal Standard - Burden of Proof. The party seeking class certification has the217
burden of proving every requirement of this Rule 52.08 by a preponderance of the218
evidence. The court shall not err in favor of certification, but shall be satisfied, based on219
a rigorous analysis, that the requirements of this Rule 52.08 have been met. This Rule 52.08220
shall not be satisfied in whole or in part based on allegations in the petition.221
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