| 32 | | - | to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HCS HB 534 2 |
|---|
| 33 | | - | superior to other available methods for the fair and efficient adjudication of the controversy. The21 |
|---|
| 34 | | - | matters pertinent to the findings include:22 |
|---|
| 35 | | - | (A) the interest of members of the class in individually controlling the prosecution or23 |
|---|
| 36 | | - | defense of separate actions;24 |
|---|
| 37 | | - | (B) the extent and nature of any litigation concerning the controversy already25 |
|---|
| 38 | | - | commenced by or against members of the class;26 |
|---|
| 39 | | - | (C) the desirability or undesirability of concentrating the litigation of the claims in the27 |
|---|
| 40 | | - | particular forum;28 |
|---|
| 41 | | - | (D) the difficulties likely to be encountered in the management of a class action.29 |
|---|
| 42 | | - | (c) Determination by Order Whether Class Action to Be Maintained - Notice - Judgment30 |
|---|
| 43 | | - | - Actions Conducted Partially as Class Actions.31 |
|---|
| 44 | | - | (1) As soon as practicable after the commencement of an action brought as a class action,32 |
|---|
| 45 | | - | the court shall determine by order whether it is to be so maintained. An order under this Rule33 |
|---|
| 46 | | - | 52.08(c)(1) may be conditional and may be altered or amended before the decision on the merits.34 |
|---|
| 47 | | - | (2) In any class action maintained under Rule 52.08(b)(3), the court shall direct to the35 |
|---|
| 48 | | - | members of the class the best notice practicable under the circumstances, including individual36 |
|---|
| 49 | | - | notice to all members who can be identified through reasonable effort. The notice shall advise37 |
|---|
| 50 | | - | each member that: (A) the court will exclude the member from the class if requested by a38 |
|---|
| 51 | | - | specified date; (B) the judgment, whether favorable or not, will include all members who do not39 |
|---|
| 52 | | - | request exclusion; and (C) any member who does not request exclusion may, if desired, enter40 |
|---|
| 53 | | - | an appearance through counsel.41 |
|---|
| 54 | | - | (3) The judgment in an action maintained as a class action under Rule 52.08(b)(1) or42 |
|---|
| 55 | | - | Rule 52.08(b)(2), whether or not favorable to the class, shall include and describe those whom43 |
|---|
| 56 | | - | the court finds to be members of the class. The judgment in an action maintained as a class44 |
|---|
| 57 | | - | action under Rule 52.08(b)(3), whether or not favorable to the class, shall include and specify45 |
|---|
| 58 | | - | or describe those to whom the notice provided in Rule 52.08(c)(2) was directed, and who have46 |
|---|
| 59 | | - | not requested exclusion, and whom the court finds to be members of the class.47 |
|---|
| 60 | | - | (4) When appropriate an action may be brought or maintained as a class action with48 |
|---|
| 61 | | - | respect to particular issues or a class may be divided into subclasses and each subclass treated49 |
|---|
| 62 | | - | as a class, and the provisions of this Rule 52.08 shall then be construed and applied accordingly.50 |
|---|
| 63 | | - | (d) Orders in Conduct of Actions. In the conduct of actions to which this Rule applies,51 |
|---|
| 64 | | - | the court may make appropriate orders:52 |
|---|
| 65 | | - | (1) determining the course of proceedings or prescribing measures to prevent undue53 |
|---|
| 66 | | - | repetition or complication in the presentation of evidence or argument;54 |
|---|
| 67 | | - | (2) requiring, for the protection of the members of the class or otherwise for the fair55 |
|---|
| 68 | | - | conduct of the action, that notice be given in such manner as the court may direct to some or all56 |
|---|
| 69 | | - | of the members of any step in the action, or of the proposed extent of the judgment, or of the57 HCS HB 534 3 |
|---|
| 70 | | - | opportunity of members to signify whether they consider the representation fair and adequate,58 |
|---|
| 71 | | - | to intervene and present claims or defenses, or otherwise to come into the action;59 |
|---|
| 72 | | - | (3) imposing conditions on the representative parties or on intervenors;60 |
|---|
| 73 | | - | (4) requiring that the pleadings be amended to eliminate therefrom allegations as to61 |
|---|
| 74 | | - | representation of absent persons, and that the action proceed accordingly;62 |
|---|
| 75 | | - | (5) dealing with similar procedural matters. The orders may be combined with an order63 |
|---|
| 76 | | - | under Rule 62, and may be altered or amended as may be desirable from time to time.64 |
|---|
| 77 | | - | (e) Dismissal or Compromise. A class action shall not be dismissed or compromised65 |
|---|
| 78 | | - | without the approval of the court, and notice of the proposed dismissal or compromise shall be66 |
|---|
| 79 | | - | given to all members of the class in such manner as the court directs.67 |
|---|
| 80 | | - | (f) Appeals. An appellate court may permit an appeal from an order of a circuit court68 |
|---|
| 81 | | - | granting or denying class action certification under this Rule 52.08 if a petition is timely filed69 |
|---|
| 82 | | - | as provided in Rule 84.035. The filing of a petition shall not stay the proceedings in the trial70 |
|---|
| 83 | | - | court unless the trial judge or the appellate court so orders.]71 |
|---|
| 84 | | - | (a) Prerequisites. One or more members of a class may sue or be sued as72 |
|---|
| 85 | | - | representative parties on behalf of all members only if:73 |
|---|
| 86 | | - | (1) the class is so numerous that joinder of all members is impracticable;74 |
|---|
| 87 | | - | (2) there are questions of law or fact common to the class;75 |
|---|
| 88 | | - | (3) the claims or defenses of the representative parties are typical of the claims or76 |
|---|
| 89 | | - | defenses of the class; and77 |
|---|
| 90 | | - | (4) the representative parties will fairly and adequately protect the interests of the78 |
|---|
| 91 | | - | class.79 |
|---|
| 92 | | - | (b) Types of Class Actions. A class action may be maintained if Rule 52.08(a) is80 |
|---|
| 93 | | - | satisfied, and if:81 |
|---|
| 94 | | - | (1) prosecuting separate actions by or against individual class members would82 |
|---|
| 95 | | - | create a risk of:83 |
|---|
| 96 | | - | (A) inconsistent or varying adjudications with respect to individual class members84 |
|---|
| 97 | | - | that would establish incompatible standards of conduct for the party opposing the class;85 |
|---|
| 98 | | - | or86 |
|---|
| 99 | | - | (B) adjudications with respect to individual class members that, as a practical87 |
|---|
| 100 | | - | matter, would be dispositive of the interests of the other members not parties to the88 |
|---|
| 101 | | - | individual adjudications or would substantially impair or impede their ability to protect89 |
|---|
| 102 | | - | their interests;90 |
|---|
| 103 | | - | (2) the party opposing the class has acted or refused to act on grounds that apply91 |
|---|
| 104 | | - | generally to the class, so that final injunctive relief or corresponding declaratory relief is92 |
|---|
| 105 | | - | appropriate respecting the class as a whole; or93 HCS HB 534 4 |
|---|
| 106 | | - | (3) the court finds that the questions of law or fact common to class members94 |
|---|
| 107 | | - | predominate over any questions affecting only individual members, and that a class action95 |
|---|
| 108 | | - | is superior to other available methods for fairly and efficiently adjudicating the96 |
|---|
| 109 | | - | controversy. The matters pertinent to these findings include:97 |
|---|
| 110 | | - | (A) the class members' interests in individually controlling the prosecution or98 |
|---|
| 111 | | - | defense of separate actions;99 |
|---|
| 112 | | - | (B) the extent and nature of any litigation concerning the controversy already begun100 |
|---|
| 113 | | - | by or against class members;101 |
|---|
| 114 | | - | (C) the desirability or undesirability of concentrating the litigation of the claims in102 |
|---|
| 115 | | - | the particular forum; and103 |
|---|
| 116 | | - | (D) the likely difficulties in managing a class action.104 |
|---|
| 117 | | - | (c) Certification Order - Notice to Class Members - Judgment - Issues Classes -105 |
|---|
| 118 | | - | Subclasses.106 |
|---|
| 119 | | - | (1) Certification Order.107 |
|---|
| 120 | | - | (A) Time to Issue. At an early practicable time after a person sues or is sued as a108 |
|---|
| 121 | | - | class representative, the court shall determine by order whether to certify the action as a109 |
|---|
| 122 | | - | class action.110 |
|---|
| 123 | | - | (B) Defining the Class - Appointing Class Counsel. An order that certifies a class111 |
|---|
| 124 | | - | action shall define the class and the class claims, issues, or defenses, and shall appoint class112 |
|---|
| 125 | | - | counsel under Rule 52.08(g).113 |
|---|
| 126 | | - | (C) Altering or Amending the Order. An order that grants or denies class114 |
|---|
| 127 | | - | certification may be altered or amended before final judgment.115 |
|---|
| 128 | | - | (2) Notice.116 |
|---|
| 129 | | - | (A) For (b)(1) or (b)(2) Classes. For any class certified under Rule 52.08(b)(1) or117 |
|---|
| 130 | | - | Rule 52.08(b)(2), the court may direct appropriate notice to the class.118 |
|---|
| 131 | | - | (B) For (b)(3) Classes. For any class certified under Rule 52.08(b)(3), or upon119 |
|---|
| 132 | | - | ordering notice under Rule 52.08(e)(1) to a class proposed to be certified for purposes of120 |
|---|
| 133 | | - | settlement under Rule 52.08(b)(3), the court shall direct to class members the best notice121 |
|---|
| 134 | | - | that is practicable under the circumstances, including individual notice to all members who122 |
|---|
| 135 | | - | can be identified through reasonable effort. The notice may be by one or more of the123 |
|---|
| 136 | | - | following: United States mail, electronic means, or other appropriate means. The notice124 |
|---|
| 137 | | - | shall clearly and concisely state in plain, easily understood language:125 |
|---|
| 138 | | - | (i) the nature of the action;126 |
|---|
| 139 | | - | (ii) the definition of the class certified;127 |
|---|
| 140 | | - | (iii) the class claims, issues, or defenses;128 |
|---|
| 141 | | - | (iv) that a class member may enter an appearance through an attorney if the129 |
|---|
| 142 | | - | member so desires;130 HCS HB 534 5 |
|---|
| 143 | | - | (v) that the court will exclude from the class any member who requests exclusion;131 |
|---|
| 144 | | - | (vi) the time and manner for requesting exclusion; and132 |
|---|
| 145 | | - | (vii) the binding effect of a class judgment on members under Rule 52.08(c)(3).133 |
|---|
| 146 | | - | (3) Judgment. Whether or not favorable to the class, the judgment in a class action134 |
|---|
| 147 | | - | shall:135 |
|---|
| 148 | | - | (A) for any class certified under Rule 52.08(b)(1) or Rule 52.08(b)(2), include and136 |
|---|
| 149 | | - | describe those whom the court finds to be class members; and137 |
|---|
| 150 | | - | (B) for any class certified under Rule 52.08(b)(3), include and specify or describe138 |
|---|
| 151 | | - | those to whom the notice under Rule 52.08(c)(2) was directed, who have not requested139 |
|---|
| 152 | | - | exclusion, and whom the court finds to be class members.140 |
|---|
| 153 | | - | (4) Particular Issues. When appropriate, an action may be brought or maintained141 |
|---|
| 154 | | - | as a class action with respect to particular issues.142 |
|---|
| 155 | | - | (5) Subclasses. When appropriate, a class may be divided into subclasses that are143 |
|---|
| 156 | | - | each treated as a class under this Rule 52.08.144 |
|---|
| 157 | | - | (d) Conducting the Action.145 |
|---|
| 158 | | - | (1) In General. In conducting an action under this Rule 52.08, the court may issue146 |
|---|
| 159 | | - | orders that:147 |
|---|
| 160 | | - | (A) determine the course of proceedings or prescribe measures to prevent undue148 |
|---|
| 161 | | - | repetition or complication in presenting evidence or argument;149 |
|---|
| 162 | | - | (B) require, to protect class members and fairly conduct the action, giving150 |
|---|
| 163 | | - | appropriate notice to some or all class members of:151 |
|---|
| 164 | | - | (i) any step in the action;152 |
|---|
| 165 | | - | (ii) the proposed extent of the judgment; or153 |
|---|
| 166 | | - | (iii) the members' opportunity to signify whether they consider the representation154 |
|---|
| 167 | | - | fair and adequate, to intervene and present claims or defenses, or to otherwise come into155 |
|---|
| 168 | | - | the action;156 |
|---|
| 169 | | - | (C) impose conditions on the representative parties or on intervenors;157 |
|---|
| 170 | | - | (D) require that the pleadings be amended to eliminate allegations about158 |
|---|
| 171 | | - | representation of absent persons and that the action proceed accordingly; or159 |
|---|
| 172 | | - | (E) deal with similar procedural matters.160 |
|---|
| 173 | | - | (2) Combining and Amending Orders. An order under Rule 52.08(d)(1) may be161 |
|---|
| 174 | | - | altered or amended from time to time and may be combined with an order under Rule162 |
|---|
| 175 | | - | 62.01.163 |
|---|
| 176 | | - | (e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses164 |
|---|
| 177 | | - | of a certified class, or a class proposed to be certified for purposes of settlement, may be165 |
|---|
| 178 | | - | settled, voluntarily dismissed, or compromised only with the court's approval. The166 |
|---|
| 179 | | - | following procedures apply to a proposed settlement, voluntary dismissal, or compromise:167 HCS HB 534 6 |
|---|
| 180 | | - | (1) Notice to the Class.168 |
|---|
| 181 | | - | (A) Information That Parties Shall Provide to the Court. The parties shall provide169 |
|---|
| 182 | | - | the court with information sufficient to enable it to determine whether to give notice of the170 |
|---|
| 183 | | - | proposal to the class.171 |
|---|
| 184 | | - | (B) Grounds for a Decision to Give Notice. The court shall direct notice in a172 |
|---|
| 185 | | - | reasonable manner to all class members who would be bound by the proposal if giving173 |
|---|
| 186 | | - | notice is justified by the parties' showing that the court will likely be able to:174 |
|---|
| 187 | | - | (i) approve the proposal under Rule 52.08(e)(2); and175 |
|---|
| 188 | | - | (ii) certify the class for purposes of judgment on the proposal.176 |
|---|
| 189 | | - | (2) Approval of the Proposal. If the proposal would bind class members, the court177 |
|---|
| 190 | | - | may approve it only after a hearing and only on finding that it is fair, reasonable, and178 |
|---|
| 191 | | - | adequate after considering whether:179 |
|---|
| 192 | | - | (A) the class representatives and class counsel have adequately represented the180 |
|---|
| 193 | | - | class;181 |
|---|
| 194 | | - | (B) the proposal was negotiated at arm's length;182 |
|---|
| 195 | | - | (C) the relief provided for the class is adequate, taking into account:183 |
|---|
| 196 | | - | (i) the costs, risks, and delay of trial and appeal;184 |
|---|
| 197 | | - | (ii) the effectiveness of any proposed method of distributing relief to the class,185 |
|---|
| 198 | | - | including the method of processing class-member claims;186 |
|---|
| 199 | | - | (iii) the terms of any proposed award of attorney's fees, including timing of187 |
|---|
| 200 | | - | payment; and188 |
|---|
| 201 | | - | (iv) any agreement required to be identified under Rule 52.08(e)(3); and189 |
|---|
| 202 | | - | (D) the proposal treats class members equitably relative to each other.190 |
|---|
| 203 | | - | (3) Identifying Agreements. The parties seeking approval shall file a statement191 |
|---|
| 204 | | - | identifying any agreement made in connection with the proposal.192 |
|---|
| 205 | | - | (4) New Opportunity to Be Excluded. If the class action was previously certified193 |
|---|
| 206 | | - | under Rule 52.08(b)(3), the court may refuse to approve a settlement unless it affords a194 |
|---|
| 207 | | - | new opportunity to request exclusion to individual class members who had an earlier195 |
|---|
| 208 | | - | opportunity to request exclusion but did not do so.196 |
|---|
| 209 | | - | (5) Class-Member Objections.197 |
|---|
| 210 | | - | (A) In General. Any class member may object to the proposal if it requires court198 |
|---|
| 211 | | - | approval under this Rule 52.08(e). The objection shall state whether it applies only to the199 |
|---|
| 212 | | - | objector, to a specific subset of the class, or to the entire class, and also state with200 |
|---|
| 213 | | - | specificity the grounds for the objection.201 |
|---|
| 214 | | - | (B) Court Approval Required for Payment in Connection with an Objection. Unless202 |
|---|
| 215 | | - | approved by the court after a hearing, no payment or other consideration may be provided203 |
|---|
| 216 | | - | in connection with:204 HCS HB 534 7 |
|---|
| 217 | | - | (i) forgoing or withdrawing an objection; or205 |
|---|
| 218 | | - | (ii) forgoing, dismissing, or abandoning an appeal from a judgment approving the206 |
|---|
| 219 | | - | proposal.207 |
|---|
| 220 | | - | (f) Appeals. A court of appeals may permit an appeal from an order granting or208 |
|---|
| 221 | | - | denying class-action certification under this Rule 52.08, but not from an order under Rule209 |
|---|
| 222 | | - | 52.08(e)(1). An appeal does not stay the proceedings in the trial court unless the trial judge210 |
|---|
| 223 | | - | or the court of appeals so orders.211 |
|---|
| 224 | | - | (g) Class Counsel.212 |
|---|
| 225 | | - | (1) Appointing Class Counsel. Unless a statute provides otherwise, a court that213 |
|---|
| 226 | | - | certifies a class shall appoint class counsel. In appointing class counsel, the court:214 |
|---|
| 227 | | - | (A) shall consider:215 |
|---|
| 228 | | - | (i) the work counsel has done in identifying or investigating potential claims in the216 |
|---|
| 229 | | - | action;217 |
|---|
| 230 | | - | (ii) counsel's experience in handling class actions, other complex litigation, and the218 |
|---|
| 231 | | - | types of claims asserted in the action;219 |
|---|
| 232 | | - | (iii) counsel's knowledge of the applicable law; and220 |
|---|
| 233 | | - | (iv) the resources that counsel will commit to representing the class;221 |
|---|
| 234 | | - | (B) may consider any other matter pertinent to counsel's ability to fairly and222 |
|---|
| 235 | | - | adequately represent the interests of the class;223 |
|---|
| 236 | | - | (C) may order potential class counsel to provide information on any subject224 |
|---|
| 237 | | - | pertinent to the appointment and to propose terms for attorney's fees and nontaxable225 |
|---|
| 238 | | - | costs;226 |
|---|
| 239 | | - | (D) may include in the appointing order provisions about the award of attorney's227 |
|---|
| 240 | | - | fees or nontaxable costs under Rule 52.08(h); and228 |
|---|
| 241 | | - | (E) may make further orders in connection with the appointment.229 |
|---|
| 242 | | - | (2) Standard for Appointing Class Counsel. When one applicant seeks appointment230 |
|---|
| 243 | | - | as class counsel, the court may appoint that applicant only if the applicant is adequate231 |
|---|
| 244 | | - | under Rule 52.08(g)(1) and Rule 52.08(g)(4). If more than one adequate applicant seeks232 |
|---|
| 245 | | - | appointment, the court shall appoint the applicant best able to represent the interests of233 |
|---|
| 246 | | - | the class.234 |
|---|
| 247 | | - | (3) Interim Counsel. The court may designate interim counsel to act on behalf of a235 |
|---|
| 248 | | - | putative class before determining whether to certify the action as a class action.236 |
|---|
| 249 | | - | (4) Duty of Class Counsel. Class counsel shall fairly and adequately represent the237 |
|---|
| 250 | | - | interests of the class.238 |
|---|
| 251 | | - | (h) Attorney's Fees and Nontaxable Costs. In a certified class action, the court may239 |
|---|
| 252 | | - | award reasonable attorney's fees and nontaxable costs that are authorized by law or by the240 |
|---|
| 253 | | - | parties' agreement. The following procedures apply:241 HCS HB 534 8 |
|---|
| 254 | | - | (1) A claim for an award shall be made by motion under Rule 74.16, subject to the242 |
|---|
| 255 | | - | provisions of this Rule 52.08(h), at a time the court sets. Notice of the motion shall be243 |
|---|
| 256 | | - | served on all parties and, for motions by class counsel, directed to class members in a244 |
|---|
| 257 | | - | reasonable manner.245 |
|---|
| 258 | | - | (2) A class member, or a party from whom payment is sought, may object to the246 |
|---|
| 259 | | - | motion.247 |
|---|
| 260 | | - | (3) The court may hold a hearing and shall find the facts and state its legal248 |
|---|
| 261 | | - | conclusions.249 |
|---|
| 262 | | - | (4) The court may refer issues related to the amount of the award to a special250 |
|---|
| 263 | | - | master.251 |
|---|
| 29 | + | to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 534 2 |
|---|
| 30 | + | to the individual adjudications or would substantially impair or impede their ability to protect19 |
|---|
| 31 | + | their interests; [or]20 |
|---|
| 32 | + | (2) the party opposing the class has acted or refused to act on grounds that apply21 |
|---|
| 33 | + | generally [applicable] to the class, [thereby making appropriate] so that final injunctive relief22 |
|---|
| 34 | + | or corresponding declaratory relief [with respect to] is appropriate respecting the class as a23 |
|---|
| 35 | + | whole; or24 |
|---|
| 36 | + | (3) the court finds that the questions of law or fact common to [the members of the] class25 |
|---|
| 37 | + | members predominate over any questions affecting only individual members, and that a class26 |
|---|
| 38 | + | action is superior to other available methods for [the fair and efficient adjudication of] fairly27 |
|---|
| 39 | + | and efficiently adjudicating the controversy. The matters pertinent to [the] these findings28 |
|---|
| 40 | + | include:29 |
|---|
| 41 | + | (A) [the interest of members of] the class members’ interests in individually controlling30 |
|---|
| 42 | + | the prosecution or defense of separate actions;31 |
|---|
| 43 | + | (B) the extent and nature of any litigation concerning the controversy already32 |
|---|
| 44 | + | [commenced] begun by or against [members of the] class members;33 |
|---|
| 45 | + | (C) the desirability or undesirability of concentrating the litigation of the claims in the34 |
|---|
| 46 | + | particular forum; and35 |
|---|
| 47 | + | (D) the likely difficulties [likely to be encountered in the management of] in managing36 |
|---|
| 48 | + | a class action.37 |
|---|
| 49 | + | (c) [Determination by Order Whether Class Action to Be Maintained – Notice –38 |
|---|
| 50 | + | Judgment – Actions Conducted Partially as Class Actions] Certification Order - Notice to39 |
|---|
| 51 | + | Class Members - Judgment - Issues Classes - Subclasses.40 |
|---|
| 52 | + | (1) [As soon as practicable after the commencement of an action brought as a class41 |
|---|
| 53 | + | action] Certification Order.42 |
|---|
| 54 | + | (A) Time to Issue. At an early practicable time after a person sues or is sued as a43 |
|---|
| 55 | + | class representative, the court shall determine by order whether [it is to be so maintained. An44 |
|---|
| 56 | + | order under this Rule 52.08(c)(1) may be conditional and may be altered or amended before the45 |
|---|
| 57 | + | decision on the merits] to certify the action as a class action.46 |
|---|
| 58 | + | (B) Defining the Class - Appointing Class Counsel. An order that certifies a class47 |
|---|
| 59 | + | action shall define the class and the class claims, issues, or defenses, and shall appoint class48 |
|---|
| 60 | + | counsel under Rule 52.08(g).49 |
|---|
| 61 | + | (C) Altering or Amending the Order. An order that grants or denies class50 |
|---|
| 62 | + | certification may be altered or amended before final judgment.51 |
|---|
| 63 | + | (D) Specific Findings. In its order, the court shall make specific findings and52 |
|---|
| 64 | + | conclusions to support its decision.53 HB 534 3 |
|---|
| 65 | + | (2) [In any class action maintained under Rule 52.08(b)(3), the court shall direct to the54 |
|---|
| 66 | + | members of the class the best notice practicable under the circumstances, including individual55 |
|---|
| 67 | + | notice to all members who can be identified through reasonable effort. The notice shall advise56 |
|---|
| 68 | + | each member that: 57 |
|---|
| 69 | + | (A) the court will exclude the member from the class if requested by a specified date; 58 |
|---|
| 70 | + | (B) the judgment, whether favorable or not, will include all members who do not request59 |
|---|
| 71 | + | exclusion; and 60 |
|---|
| 72 | + | (C) any member who does not request exclusion may, if desired, enter an appearance61 |
|---|
| 73 | + | through counsel.] Notice.62 |
|---|
| 74 | + | (A) For (b)(1) or (b)(2) Classes. For any class certified pursuant to Rule 52.08(b)(1)63 |
|---|
| 75 | + | or Rule 52.08(b)(2), the court may direct appropriate notice to the class.64 |
|---|
| 76 | + | (B) For (b)(3) Classes. For any class certified pursuant to Rule 52.08(b)(3), or upon65 |
|---|
| 77 | + | ordering notice pursuant to Rule 52.08(e)(1) to a class proposed to be certified for purposes66 |
|---|
| 78 | + | of settlement pursuant to Rule 52.08(b)(3), the court shall direct to class members the best67 |
|---|
| 79 | + | notice that is practicable under the circumstances, including individual notice to all68 |
|---|
| 80 | + | members who can be identified through reasonable effort. The notice may be by one or69 |
|---|
| 81 | + | more of the following: United States mail, electronic means, or other appropriate means.70 |
|---|
| 82 | + | The notice shall clearly and concisely state in plain, easily understood language:71 |
|---|
| 83 | + | (i) the nature of the action;72 |
|---|
| 84 | + | (ii) the definition of the class certified;73 |
|---|
| 85 | + | (iii) the class claims, issues, or defenses;74 |
|---|
| 86 | + | (iv) that a class member may enter an appearance through an attorney if the75 |
|---|
| 87 | + | member so desires;76 |
|---|
| 88 | + | (v) that the court will exclude from the class any member who requests exclusion;77 |
|---|
| 89 | + | (vi) the time and manner for requesting exclusion; and78 |
|---|
| 90 | + | (vii) the binding effect of a class judgment on members pursuant to Rule 52.08(c)(3).79 |
|---|
| 91 | + | (3) [The judgment in an action maintained as a class action under Rule 52.08(b)(1) or80 |
|---|
| 92 | + | Rule 52.08(b)(2), whether or not favorable to the class, shall include and describe those whom81 |
|---|
| 93 | + | the court finds to be members of the class. The judgment in an action maintained as a class82 |
|---|
| 94 | + | action under Rule 52.08(b)(3), whether or not favorable to the class, shall include and specify83 |
|---|
| 95 | + | or describe those to whom the notice provided in Rule 52.08(c)(2) was directed, and who have84 |
|---|
| 96 | + | not requested exclusion, and whom the court finds to be members of the class.] Judgment.85 |
|---|
| 97 | + | Whether or not favorable to the class, the judgment in a class action shall:86 |
|---|
| 98 | + | (A) for any class certified pursuant to Rule 52.08(b)(1) or Rule 52.08(b)(2), include87 |
|---|
| 99 | + | and describe whom the court finds to be class members; and88 HB 534 4 |
|---|
| 100 | + | (B) for any class certified under Rule 52.08(b)(3), include and specify or describe89 |
|---|
| 101 | + | those whom the notice pursuant to Rule 52.08(c)(2) was directed, who have not requested90 |
|---|
| 102 | + | exclusion, and whom the court finds to be class members.91 |
|---|
| 103 | + | (4) [When appropriate an action may be brought or maintained as a class action with92 |
|---|
| 104 | + | respect to particular issues or a class may be divided into subclasses and each subclass treated93 |
|---|
| 105 | + | as a class, and the provisions of this Rule 52.08 shall then be construed and applied accordingly.]94 |
|---|
| 106 | + | Particular Issues. When appropriate, an action may be brought or maintained as a class95 |
|---|
| 107 | + | action with respect to particular issues.96 |
|---|
| 108 | + | (5) Subclasses. When appropriate, a class may be divided into subclasses that are97 |
|---|
| 109 | + | each treated as a class under this Rule 52.08.98 |
|---|
| 110 | + | (d) [Orders in Conduct of Actions. In the conduct of actions to which this Rule applies,99 |
|---|
| 111 | + | the court may make appropriate orders:] Conducting the Action.100 |
|---|
| 112 | + | (1) [determining] In General. In conducting an action under this Rule 52.08, the101 |
|---|
| 113 | + | court may issue orders that:102 |
|---|
| 114 | + | (A) determine the course of proceedings or [prescribing] prescribe measures to prevent103 |
|---|
| 115 | + | undue repetition or complication in [the presentation of] presenting evidence or argument;104 |
|---|
| 116 | + | [(2) requiring, for the protection of the members of the class or otherwise for the fair105 |
|---|
| 117 | + | conduct of the action, that notice be given in such manner as the court may direct to some or all106 |
|---|
| 118 | + | of the members of any step in the action, or of the proposed extent of the judgment, or of the107 |
|---|
| 119 | + | opportunity of members to signify whether they consider the representation fair and adequate,108 |
|---|
| 120 | + | to intervene and present claims or defenses, or otherwise to come into the action;109 |
|---|
| 121 | + | (3) imposing] (B) require, to protect class members and fairly conduct the action,110 |
|---|
| 122 | + | giving appropriate notice to some or all class members of:111 |
|---|
| 123 | + | (i) any step in the action;112 |
|---|
| 124 | + | (ii) the proposed extent of the judgment; or113 |
|---|
| 125 | + | (iii) the members' opportunity to signify whether they consider the representation114 |
|---|
| 126 | + | fair and adequate, to intervene and present claims or defenses, or to otherwise come into115 |
|---|
| 127 | + | the action;116 |
|---|
| 128 | + | (C) impose conditions on the representative parties or on intervenors;117 |
|---|
| 129 | + | [(4) requiring] (D) require that the pleadings be amended to eliminate [therefrom]118 |
|---|
| 130 | + | allegations [as to] about representation of absent persons[,] and that the action proceed119 |
|---|
| 131 | + | accordingly;120 |
|---|
| 132 | + | [(5) dealing] or 121 |
|---|
| 133 | + | (E) deal with similar procedural matters. [The orders may be combined with an order122 |
|---|
| 134 | + | under Rule 62, and] 123 |
|---|
| 135 | + | (2) Amending Orders. An order under Rule 52.08(d)(1) may be altered or amended124 |
|---|
| 136 | + | [as may be desirable] from time to time.125 HB 534 5 |
|---|
| 137 | + | (e) Settlement, Voluntary Dismissal or Compromise. [A class action shall not be126 |
|---|
| 138 | + | dismissed or compromised without the approval of the court, and notice of the proposed127 |
|---|
| 139 | + | dismissal or compromise shall be given to all members of the class in such manner as the court128 |
|---|
| 140 | + | directs.] The claims, issues, or defenses of a certified class, or a class proposed to be129 |
|---|
| 141 | + | certified for purposes of settlement, may be settled, voluntarily dismissed, or compromised130 |
|---|
| 142 | + | only with the court's approval. The following procedures apply to a proposed settlement,131 |
|---|
| 143 | + | voluntary dismissal, or compromise:132 |
|---|
| 144 | + | (1) Notice to the Class.133 |
|---|
| 145 | + | (A) Information That Parties Shall Provide to the Court. The parties shall provide134 |
|---|
| 146 | + | the court with information sufficient to enable it to determine whether to give notice of the135 |
|---|
| 147 | + | proposal to the class.136 |
|---|
| 148 | + | (B) Grounds for a Decision to Give Notice. The court shall direct notice in a137 |
|---|
| 149 | + | reasonable manner to all class members who would be bound by the proposal if giving138 |
|---|
| 150 | + | notice is justified by the parties' showing that the court will likely be able to:139 |
|---|
| 151 | + | (i) approve the proposal under Rule 52.08(e)(2); and140 |
|---|
| 152 | + | (ii) certify the class for purposes of judgment on the proposal.141 |
|---|
| 153 | + | (2) Approval of the Proposal. If the proposal would bind class members, the court142 |
|---|
| 154 | + | may approve it only after a hearing and only on finding that it is fair, reasonable, and143 |
|---|
| 155 | + | adequate after considering whether:144 |
|---|
| 156 | + | (A) the class representatives and class counsel have adequately represented the145 |
|---|
| 157 | + | class;146 |
|---|
| 158 | + | (B) the proposal was negotiated at arm's length;147 |
|---|
| 159 | + | (C) the relief provided for the class is adequate, taking into account:148 |
|---|
| 160 | + | (i) the costs, risks, and delay of trial and appeal;149 |
|---|
| 161 | + | (ii) the effectiveness of any proposed method of distributing relief to the class,150 |
|---|
| 162 | + | including the method of processing class member claims;151 |
|---|
| 163 | + | (iii) the terms of any proposed award of attorney's fees, including timing of152 |
|---|
| 164 | + | payment; and153 |
|---|
| 165 | + | (iv) any agreement required to be identified pursuant to Rule 52.08(e)(3); and154 |
|---|
| 166 | + | (D) the proposal treats class members equitably relative to each other.155 |
|---|
| 167 | + | (3) Identifying Agreements. The parties seeking approval shall file a statement156 |
|---|
| 168 | + | identifying any agreement made in connection with the proposal.157 |
|---|
| 169 | + | (4) New Opportunity to be Excluded. If the class action was previously certified158 |
|---|
| 170 | + | pursuant to Rule 52.08(b)(3), the court may refuse to approve a settlement unless it affords159 |
|---|
| 171 | + | a new opportunity to request exclusion to individual class members who had an earlier160 |
|---|
| 172 | + | opportunity to request exclusion but did not do so.161 |
|---|
| 173 | + | (5) Class Member Objections.162 HB 534 6 |
|---|
| 174 | + | (A) In General. Any class member may object to the proposal if it requires court163 |
|---|
| 175 | + | approval under this Rule 52.08(e). The objection shall state whether it applies only to the164 |
|---|
| 176 | + | objector, to a specific subset of the class, or to the entire class, and also state with165 |
|---|
| 177 | + | specificity the grounds for the objection.166 |
|---|
| 178 | + | (B) Court Approval Required for Payment in Connection with an Objection. Unless167 |
|---|
| 179 | + | approved by the court after a hearing, no payment or other consideration shall be provided168 |
|---|
| 180 | + | in connection with:169 |
|---|
| 181 | + | (i) forgoing or withdrawing an objection; or170 |
|---|
| 182 | + | (ii) forgoing, dismissing, or abandoning an appeal from a judgment approving the171 |
|---|
| 183 | + | proposal.172 |
|---|
| 184 | + | (f) Appeals. An appellate court [may] shall permit an appeal from an order of a circuit173 |
|---|
| 185 | + | court granting or denying class action certification under this Rule 52.08 [if a petition is timely174 |
|---|
| 186 | + | filed as provided in Rule 84.035. The filing of a petition] but not from an order pursuant to175 |
|---|
| 187 | + | Rule 52.08(e)(1). An appeal shall not stay the proceedings in the trial court unless the trial176 |
|---|
| 188 | + | judge or the appellate court so orders.177 |
|---|
| 189 | + | (g) Class Counsel.178 |
|---|
| 190 | + | (1) Appointing Class Counsel. Unless a statute provides otherwise, a court that179 |
|---|
| 191 | + | certifies a class shall appoint class counsel. In appointing class counsel, the court:180 |
|---|
| 192 | + | (A) shall consider:181 |
|---|
| 193 | + | (i) the work counsel has done in identifying or investigating potential claims in the182 |
|---|
| 194 | + | action;183 |
|---|
| 195 | + | (ii) counsel's experience in handling class actions, other complex litigation, and the184 |
|---|
| 196 | + | types of claims asserted in the action;185 |
|---|
| 197 | + | (iii) counsel's knowledge of the applicable law; and186 |
|---|
| 198 | + | (iv) the resources that counsel will commit to representing the class;187 |
|---|
| 199 | + | (B) may consider any other matter pertinent to counsel's ability to fairly and188 |
|---|
| 200 | + | adequately represent the interests of the class;189 |
|---|
| 201 | + | (C) may order potential class counsel to provide information on any subject190 |
|---|
| 202 | + | pertinent to the appointment and to propose terms for attorney's fees and nontaxable191 |
|---|
| 203 | + | costs;192 |
|---|
| 204 | + | (D) may include in the appointing order provisions about the award of attorney's193 |
|---|
| 205 | + | fees or nontaxable costs pursuant to Rule 52.08(h); and194 |
|---|
| 206 | + | (E) may make further orders in connection with the appointment.195 |
|---|
| 207 | + | (2) Standard for Appointing Class Counsel. When one applicant seeks appointment196 |
|---|
| 208 | + | as class counsel, the court may appoint that applicant only if the applicant is adequate197 |
|---|
| 209 | + | pursuant to Rule 52.08(g)(1) and Rule 52.08(g)(4). If more than one adequate applicant198 HB 534 7 |
|---|
| 210 | + | seeks appointment, the court shall appoint the applicant best able to represent the interests199 |
|---|
| 211 | + | of the class.200 |
|---|
| 212 | + | (3) Interim Counsel. The court may designate interim counsel to act on behalf of a201 |
|---|
| 213 | + | putative class before determining whether to certify the action as a class action.202 |
|---|
| 214 | + | (4) Duty of Class Counsel. Class counsel shall fairly and adequately represent the203 |
|---|
| 215 | + | interests of the class.204 |
|---|
| 216 | + | (h) Attorney's Fees and Nontaxable Costs. In a certified class action, the court may205 |
|---|
| 217 | + | award reasonable attorney's fees and nontaxable costs that are authorized by law or by the206 |
|---|
| 218 | + | parties' agreement. The following procedures apply:207 |
|---|
| 219 | + | (1) A claim for an award shall be made by motion at a time the court sets. Notice208 |
|---|
| 220 | + | of the motion shall be served on all parties and, for motions by class counsel, directed to209 |
|---|
| 221 | + | class members in a reasonable manner.210 |
|---|
| 222 | + | (2) A class member, or a party from whom payment is sought, may object to the211 |
|---|
| 223 | + | motion.212 |
|---|
| 224 | + | (3) The court may hold a hearing and shall find the facts and state its legal213 |
|---|
| 225 | + | conclusions.214 |
|---|
| 226 | + | (4) The court may refer issues related to the amount of the award to a special215 |
|---|
| 227 | + | master.216 |
|---|
| 228 | + | (i) Legal Standard - Burden of Proof. The party seeking class certification has the217 |
|---|
| 229 | + | burden of proving every requirement of this Rule 52.08 by a preponderance of the218 |
|---|
| 230 | + | evidence. The court shall not err in favor of certification, but shall be satisfied, based on219 |
|---|
| 231 | + | a rigorous analysis, that the requirements of this Rule 52.08 have been met. This Rule 52.08220 |
|---|
| 232 | + | shall not be satisfied in whole or in part based on allegations in the petition.221 |
|---|