EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
FIRST REGULAR SESSION
SENATE BILL NO. 47
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR TRENT.
0064S.01I KRISTINA MARTIN, Secretary
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 1
as follows:2
52.08. Class Actions 1
(a) Prerequisites [to a Class Action]. One or more 2
members of a class may sue or be sued as representative 3
parties on behalf of all members only if: 4
(1) the class is so numerous that joinder of all 5
members is impracticable [,]; 6
(2) there are questions of law or fact common to the 7
class[,]; 8
(3) the claims or defenses of the representative 9
parties are typical of the clai ms or defenses of the 10
class[,]; and 11
(4) the representative parties will fairly and 12
adequately protect the interests of the class. 13
(b) [Class Actions Maintainable ] Types of Class 14
Actions. [An] A class action may be maintained [as a class 15
action if the prerequisites of subdivision (a) are ] if Rule 16
52.08(a) is satisfied, and [in addition] if: 17
(1) [the prosecution of] prosecuting separate actions 18
by or against individual class members [of the class] would 19
create a risk of: 20 SB 47 2
(A) inconsistent or varying adjudications with respect 21
to individual class members [of the class which] that would 22
establish incompatible standards of conduct for the party 23
opposing the class[,]; or 24
(B) adjudications with respect to individual class 25
members [of the class which would ] that, as a practical 26
matter, would be dispositive of the interests of the other 27
members not parties to the individual adjudications or would 28
substantially impair or impede their ability to protect 29
their interests; [or] 30
(2) the party opposing the class has acted or refused 31
to act on grounds that apply generally [applicable] to the 32
class, [thereby making appropriate ] so that final injunctive 33
relief or corresponding declaratory relief [with respect to] 34
is appropriate respecting the class as a whole; or 35
(3) the court finds that the questions of law or fact 36
common to [the members of the] class members predominate 37
over any questions affecting only individual members, and 38
that a class action is superior to other avail able methods 39
for [the fair and efficient adjudication of ] fairly and 40
efficiently adjudicating the controversy. The matters 41
pertinent to [the] these findings include: 42
(A) [the interest of members of ] the class member's 43
interests in individually controlling the prosecution or 44
defense of separate actions; 45
(B) the extent and nature of any litigation concerning 46
the controversy already [commenced] begun by or against 47
[members of the] class members; 48
(C) the desirability or undesirability of c oncentrating 49
the litigation of the claims in the particular forum; and 50
(D) the likely difficulties [likely to be encountered 51
in the management of ] in managing a class action. 52 SB 47 3
(c) [Determination by Order Whether Class Action to Be 53
Maintained - Notice - Judgment - Actions Conducted Partially 54
as Class Actions] Certification Order - Notice to Class 55
Members - Judgment - Issues Classes - Subclasses. 56
(1) [As soon as practicable after the commencement of 57
an action brought as a class action ] Certification Order. 58
(A) Time to Issue. At an early practicable time after a 59
person sues or is sued as a class representative , the court 60
shall determine by order whether [it is to be so maintained. 61
An order under this Rule 52.08(c)(1) may be condition al and 62
may be altered or amended before the decision on the merits ] 63
to certify the action as a class action. 64
(B) Defining the Class - Appointing Class Counsel. An 65
order that certifies a class action shall define the class 66
and the class claims, iss ues, or defenses, and shall appoint 67
class counsel under Rule 52.08(g). 68
(C) Altering or Amending the Order. An order that 69
grants or denies class certification may be altered or 70
amended before final judgment. 71
(D) Specific Findings. In its order, the court shall 72
make specific findings and conclusions to support its 73
decision. 74
(2) [In any class action maintained under Rule 75
52.08(b)(3), the court shall direct to the members of the 76
class the best notice practicable under the circumstances, 77
including individual notice to all members who can be 78
identified through reasonable effort. The notice shall 79
advise each member that: (A) the court will exclude the 80
member from the class if requested by a specified date; (B) 81
the judgment, whether favora ble or not, will include all 82
members who do not request exclusion; and (C) any member who 83 SB 47 4
does not request exclusion may, if desired, enter an 84
appearance through counsel. ] Notice. 85
(A) For (b)(1) or (b)(2) Classes. For any class 86
certified pursuant to Rule 52.08(b)(1) or Rule 52.08(b)(2), 87
the court may direct appropriate notice to the class. 88
(B) For (b)(3) Classes. For any class certified 89
pursuant to Rule 52.08(b)(3), or upon ordering notice 90
pursuant to Rule 52.08(e)(1) to a class proposed to be 91
certified for purposes of settlement pursuant to Rule 92
52.08(b)(3), the court shall direct to class members the 93
best notice that is practicable under the circumstances, 94
including individual notice to all members who can be 95
identified through reason able effort. The notice may be by 96
one or more of the following: United States mail, electronic 97
means, or other appropriate means. The notice shall clearly 98
and concisely state in plain, easily understood language: 99
(i) the nature of the action; 100
(ii) the definition of the class certified; 101
(iii) the class claims, issues, or defenses; 102
(iv) that a class member may enter an appearance 103
through an attorney if the member so desires; 104
(v) that the court will exclude from the class any 105
member who requests exclusion; 106
(vi) the time and manner for requesting exclusion; and 107
(vii) the binding effect of a class judgment on members 108
pursuant to Rule 52.08(c)(3). 109
(3) [The judgment in an action maintained as a class 110
action under Rule 52.08(b)(1) or Rule 52.08(b)(2), whether 111
or not favorable to the class, shall include and describe 112
those whom the court finds to be members of the class. The 113
judgment in an action maintained as a class action under 114
Rule 52.08(b)(3), whether or not favo rable to the class, 115 SB 47 5
shall include and specify or describe those to whom the 116
notice provided in Rule 52.08(c)(2) was directed, and who 117
have not requested exclusion, and whom the court finds to be 118
members of the class. ] Judgment. Whether or not favorable to 119
the class, the judgment in a class action shall: 120
(A) for any class certified pursuant to Rule 121
52.08(b)(1) or Rule 52.08(b)(2), include and describe whom 122
the court finds to be class members; and 123
(B) for any class certified under Rule 52.08( b)(3), 124
include and specify or describe those whom the notice 125
pursuant to Rule 52.08(c)(2) was directed, who have not 126
requested exclusion, and whom the court finds to be class 127
members. 128
(4) [When appropriate an action may be brought or 129
maintained as a class action with respect to particular 130
issues or a class may be divided into subclasses and each 131
subclass treated as a class, and the provisions of this Rule 132
52.08 shall then be construed and applied accordingly. ] 133
Particular Issues. When appropria te, an action may be 134
brought or maintained as a class action with respect to 135
particular issues. 136
(5) Subclasses. When appropriate, a class may be 137
divided into subclasses that are each treated as a class 138
under this Rule 52.08. 139
(d) [Orders in Conduct of Actions. In the conduct of 140
actions to which this Rule applies, the court may make 141
appropriate orders:] Conducting the Action. 142
(1) [determining] In General. In conducting an action 143
under this Rule 52.08, the court may issue orders that: 144
(A) determine the course of proceedings or 145
[prescribing] prescribe measures to prevent undue repetition 146 SB 47 6
or complication in [the presentation of] presenting evidence 147
or argument; 148
[(2) requiring, for the protection of the members of 149
the class or otherwise for the fair conduct of the action, 150
that notice be given in such manner as the court may direct 151
to some or all of the members of any step in the action, or 152
of the proposed extent of the judgment, or of the 153
opportunity of members to signify whe ther they consider the 154
representation fair and adequate, to intervene and present 155
claims or defenses, or otherwise to come into the action; 156
(3) imposing] (B) require, to protect class members and 157
fairly conduct the action, giving appropriate notice to some 158
or all class members of: 159
(i) any step in the action; 160
(ii) the proposed extent of the judgment; or 161
(iii) the members' opportunity to signify whether they 162
consider the representation fair and adequate, to intervene 163
and present claims or defenses, or to otherwise come into 164
the action; 165
(C) impose conditions on the representative parties or 166
on intervenors; 167
[(4) requiring] (D) require that the pleadings be 168
amended to eliminate [therefrom] allegations [as to] about 169
representation of absent persons [,] and that the action 170
proceed accordingly; 171
[(5) dealing] or 172
(E) deal with similar procedural matters. [The orders 173
may be combined with an order under Rule 62, and ] 174
(2) Amending Orders. An order under Rule 52.08(d) (1) 175
may be altered or amended [as may be desirable] from time to 176
time. 177 SB 47 7
(e) Settlement, Voluntary Dismissal or Compromise. [A 178
class action shall not be dismissed or compromised without 179
the approval of the court, and notice of the proposed 180
dismissal or compromise shall be given to all members of the 181
class in such manner as the court directs. ] The claims, 182
issues, or defenses of a certified class, or a class 183
proposed to be certified for purposes of settlement, may be 184
settled, voluntarily dismissed , or compromised only with the 185
court's approval. The following procedures apply to a 186
proposed settlement, voluntary dismissal, or compromise: 187
(1) Notice to the Class. 188
(A) Information That Parties Shall Provide to the 189
Court. The parties shall p rovide the court with information 190
sufficient to enable it to determine whether to give notice 191
of the proposal to the class. 192
(B) Grounds for a Decision to Give Notice. The court 193
shall direct notice in a reasonable manner to all class 194
members who would be bound by the proposal if giving notice 195
is justified by the parties' showing that the court will 196
likely be able to: 197
(i) approve the proposal under Rule 52.08(e)(2); and 198
(ii) certify the class for purposes of judgment on the 199
proposal. 200
(2) Approval of the Proposal. If the proposal would 201
bind class members, the court may approve it only after a 202
hearing and only on finding that it is fair, reasonable, and 203
adequate after considering whether: 204
(A) the class representatives and class counsel have 205
adequately represented the class; 206
(B) the proposal was negotiated at arm's length; 207
(C) the relief provided for the class is adequate, 208
taking into account: 209 SB 47 8
(i) the costs, risks, and delay of trial and appeal; 210
(ii) the effectiveness of any proposed method of 211
distributing relief to the class, including the method of 212
processing class member claims; 213
(iii) the terms of any proposed award of attorney's 214
fees, including timing of payment; and 215
(iv) any agreement requir ed to be identified pursuant 216
to Rule 52.08(e)(3); and 217
(D) the proposal treats class members equitably 218
relative to each other. 219
(3) Identifying Agreements. The parties seeking 220
approval shall file a statement identifying any agreement 221
made in connection with the proposal. 222
(4) New Opportunity to be Excluded. If the class action 223
was previously certified pursuant to Rule 52.08(b)(3), the 224
court may refuse to approve a settlement unless it affords a 225
new opportunity to request exclusion to indi vidual class 226
members who had an earlier opportunity to request exclusion 227
but did not do so. 228
(5) Class Member Objections. 229
(A) In General. Any class member may object to the 230
proposal if it requires court approval under this Rule 231
52.08(e). The objection shall state whether it applies only 232
to the objector, to a specific subset of the class, or to 233
the entire class, and also state with specificity the 234
grounds for the objection. 235
(B) Court Approval Required for Payment in Connection 236
with an Objection. Unless approved by the court after a 237
hearing, no payment or other consideration shall be provided 238
in connection with: 239
(i) forgoing or withdrawing an objection; or 240 SB 47 9
(ii) forgoing, dismissing, or abandoning an appeal from 241
a judgment approving the proposal. 242
(f) Appeals. An appellate court [may] shall permit an 243
appeal from an order of a circuit court granting or denying 244
class action certification under this Rule 52.08 [if a 245
petition is timely filed as provided in Rule 84.035. The 246
filing of a petition ], but not from an order pursuant to 247
Rule 52.08(e)(1). An appeal shall not stay the proceedings 248
in the trial court unless the trial judge or the appellate 249
court so orders. 250
(g) Class Counsel. 251
(1) Appointing Class Counsel. Un less a statute provides 252
otherwise, a court that certifies a class shall appoint 253
class counsel. In appointing class counsel, the court: 254
(A) shall consider: 255
(i) the work counsel has done in identifying or 256
investigating potential claims in the ac tion; 257
(ii) counsel's experience in handling class actions, 258
other complex litigation, and the types of claims asserted 259
in the action; 260
(iii) counsel's knowledge of the applicable law; and 261
(iv) the resources that counsel will commit to 262
representing the class; 263
(B) may consider any other matter pertinent to 264
counsel's ability to fairly and adequately represent the 265
interests of the class; 266
(C) may order potential class counsel to provide 267
information on any subject pertinent to the app ointment and 268
to propose terms for attorney's fees and nontaxable costs; 269
(D) may include in the appointing order provisions 270
about the award of attorney's fees or nontaxable costs 271
pursuant to Rule 52.08(h); and 272 SB 47 10
(E) may make further orders in con nection with the 273
appointment. 274
(2) Standard for Appointing Class Counsel. When one 275
applicant seeks appointment as class counsel, the court may 276
appoint that applicant only if the applicant is adequate 277
pursuant to Rule 52.08(g)(1) and Rule 52.08(g)(4 ). If more 278
than one adequate applicant seeks appointment, the court 279
shall appoint the applicant best able to represent the 280
interests of the class. 281
(3) Interim Counsel. The court may designate interim 282
counsel to act on behalf of a putative class be fore 283
determining whether to certify the action as a class action. 284
(4) Duty of Class Counsel. Class counsel shall fairly 285
and adequately represent the interests of the class. 286
(h) Attorney's Fees and Nontaxable Costs. In a 287
certified class action, the court may award reasonable 288
attorney's fees and nontaxable costs that are authorized by 289
law or by the parties' agreement. The following procedures 290
apply: 291
(1) A claim for an award shall be made by motion at a 292
time the court sets. Notice of the motion shall be served on 293
all parties and, for motions by class counsel, directed to 294
class members in a reasonable manner. 295
(2) A class member, or a party from whom payment is 296
sought, may object to the motion. 297
(3) The court may hold a hearing a nd shall find the 298
facts and state its legal conclusions. 299
(4) The court may refer issues related to the amount of 300
the award to a special master. 301
(i) Legal Standard - Burden of Proof. The party seeking 302
class certification has the burden of provi ng every 303
requirement of this Rule 52.08 by a preponderance of the 304 SB 47 11
evidence. The court shall not err in favor of certification, 305
but shall be satisfied, based on a rigorous analysis, that 306
the requirements of this Rule 52.08 have been met. This Rule 307
52.08 shall not be satisfied in whole or in part based on 308
allegations in the petition. 309