0064S.03C
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SENATE COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 47
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 s ued as representative
parties on behalf of all only if (1) the class is so
numerous that joinder of all members is impracticable, (2)
there are questions of law or fact common to the class, (3)
the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect
the interests of the class.
(b) Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against
individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect
to individual members of the cl ass which would establish
incompatible standards of conduct for the party opposing the
class, or
(B) adjudications with respect to individual members of
the class which would as a practical matter be dispositive
of the interests of the other membe rs not parties to the
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adjudications or substantially impair or impede their
ability to protect their interests; or
(2) the party opposing the class has acted or refused
to act on grounds generally applicable to the class, thereby
making appropriate final injunctive relief or corresponding
declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact
common to the members of the class predominate over any
questions affecting only individual members, and that a
class action is superior to other available methods for the
fair and efficient adjudication of the controversy. The
matters pertinent to the findings include:
(A) the interest of members of the class in
individually controllin g the prosecution or defense of
separate actions;
(B) the extent and nature of any litigation concerning
the controversy already commenced by or against members of
the class;
(C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the
management of a class action.
(c) Determination by Order Whether Class Action to Be
Maintained - Notice - Judgment - Actions Conducted Partially
as Class Actions.
(1) As 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. An order under
this Rule 52.08(c)(1) may be conditional and may be alter ed
or amended before the decision on the merits.
(2) In any class action maintained under Rule
52.08(b)(3), the court shall direct to the members of the
class the best notice practicable under the circumstances,
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including individual notice to all members who can be
identified through reasonable effort. The notice shall
advise each member that: (A) the court will exclude the
member from the class if requested by a specified date; (B)
the judgment, whether favorable or not, will include all
members who do not request exclusion; and (C) any member who
does not request exclusion may, if desired, enter an
appearance through counsel.
(3) The judgment in an action maintained as a class
action under Rule 52.08(b)(1) or Rule 52.08(b)(2), whether
or not favorable to the class, shall include and describe
those whom the court finds to be members of the class. The
judgment in an action maintained as a class action under
Rule 52.08(b)(3), whether or not favorable to the class,
shall include and specify or describe those to whom the
notice provided in Rule 52.08(c)(2) was directed, and who
have not requested exclusion, and whom the court finds to be
members of the class.
(4) When appropriate an action may be brought or
maintained as a clas s action with respect to particular
issues or a class may be divided into subclasses and each
subclass treated as a class, and the provisions of this Rule
52.08 shall then be construed and applied accordingly.
(d) Orders in Conduct of Actions. In t he conduct of
actions to which this Rule applies, the court may make
appropriate orders:
(1) determining the course of proceedings or
prescribing measures to prevent undue repetition or
complication in the presentation of evidence or argument;
(2) requiring, for the protection of the members of the
class or otherwise for the fair conduct of the action, that
notice be given in such manner as the court may direct to
some or all of the members of any step in the action, or of
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the proposed extent of the judgment, or of the opportunity
of members to signify whether they consider the
representation fair and adequate, to intervene and present
claims or defenses, or otherwise to come into the action;
(3) imposing conditions on the represent ative parties
or on intervenors;
(4) requiring that the pleadings be amended to
eliminate therefrom allegations as to representation of
absent persons, and that the action proceed accordingly;
(5) dealing with similar procedural matters.
The orders may be combined with an order under Rule 62, and
may be altered or amended as may be desirable from time to
time.
(e) Dismissal or Compromise. A class action shall not
be dismissed or compromised without the approval of the
court, and notice of the proposed dismissal or compromise
shall be given to all members of the class in such manner as
the court directs.
(f) Appeals. An appellate court may permit an appeal
from an order of a circuit court granting or denying class
action certification under this Rule 52.08 if a petition is
timely filed as provided in Rule 84.035. The filing of a
petition shall not stay the proceedings in the trial court
unless the trial judge or the appellate court so orders. ]
(a) Prerequisites. One or mo re members of a class may
sue or be sued as representative parties on behalf of all
members only if:
(1) the class is so numerous that joinder of all
members is impracticable;
(2) there are questions of law or fact common to the
class;
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(3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class;
and
(4) the representative parties will fairly and
adequately protect the interests of the class.
(b) Types of Class Actions. A class a ction may be
maintained if Rule 52.08(a) is satisfied and if:
(1) prosecuting separate actions by or against
individual class members would create a risk of:
(A) inconsistent or varying adjudications with respect
to individual class members th at would establish
incompatible standards of conduct for the party opposing the
class; or
(B) adjudications with respect to individual class
members that, as a practical matter, would be dispositive of
the interests of the other members not partie s to the
individual adjudications or would substantially impair or
impede their ability to protect their interests;
(2) the party opposing the class has acted or refused
to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that a class action
is superior to other available methods for fairly and
efficiently adjudicating the controversy. The matters
pertinent to these findings include:
(A) the class members' interests in individually
controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning
the controversy already begun by or against class members;
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(C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum ; and
(D) the likely difficulties in managing a class action.
(c) Certification Order - Notice to Class Members -
Judgment - Issues Classes - Subclasses.
(1) Certification Order.
(A) Time to Issue. At an early practicable time after a
person sues or is sued as a class representative, the court
shall determine by order whether to certify the action as a
class action.
(B) Defining the Class - Appointing Class Counsel. An
order that certifies a class action shall define the class
and the class claims, issues, or defenses, and shall appoint
class counsel under Rule 52.08(g).
(C) Altering or Amending the Order. An order that
grants or denies class certification may be altered or
amended before final judgment.
(2) Notice.
(A) For (b)(1) or (b)(2) Classes. For any class
certified under Rule 52.08(b)(1) or Rule 52.08(b)(2), the
court may direct appropriate notice to the class.
(B) For (b)(3) Classes. For any class certified under
Rule 52.08(b)(3), or upon order ing notice under Rule
52.08(e)(1) to a class proposed to be certified for purposes
of settlement under Rule 52.08(b)(3), the court shall direct
to class members the best notice that is practicable under
the circumstances, including individual notice to all
members who can be identified through reasonable effort. The
notice may be by one or more of the following: United States
mail, electronic means, or other appropriate means. The
notice shall clearly and concisely state in plain, easily
understood language:
(i) the nature of the action;
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(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance
through an attorney if the member so desires;
(v) that the court will exclude from the class any
member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members
under Rule 52.08(c)(3).
(3) Judgment. Whether or no t favorable to the class,
the judgment in a class action shall:
(A) for any class certified under Rule 52.08(b)(1) or
Rule 52.08(b)(2), include and describe those whom the court
finds to be class members; and
(B) for any class certified under Rule 52.08(b)(3),
include and specify or describe those to whom the notice
under Rule 52.08(c)(2) was directed, who have not requested
exclusion, and whom the court finds to be class members.
(4) Particular Issues. When appropriate, an action may
be brought or maintained as a class action with respect to
particular issues.
(5) Subclasses. When appropriate, a class may be
divided into subclasses that are each treated as a class
under this Rule 52.08.
(d) Conducting the Action.
(1) In General. In conducting an action under this Rule
52.08, the court may issue orders that:
(A) determine the course of proceedings or prescribe
measures to prevent undue repetition or complication in
presenting evidence or argument;
(B) require, to protect class members and fairly
conduct the action, giving appropriate notice to some or all
class members of:
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(i) any step in the action;
(ii) the proposed extent of the judgment; or
(iii) the members' opportunity to signify wheth er they
consider the representation fair and adequate, to intervene
and present claims or defenses, or to otherwise come into
the action;
(C) impose conditions on the representative parties or
on intervenors;
(D) require that the pleadings be amended to eliminate
allegations about representation of absent persons and that
the action proceed accordingly; or
(E) deal with similar procedural matters.
(2) Combining and Amending Orders. An order under Rule
52.08(d)(1) may be altered or amended from time to time and
may be combined with an order under Rule 62.01.
(e) Settlement, Voluntary Dismissal, or Compromise. The
claims, issues, or defenses of a certified class, or a class
proposed to be certified for purposes of settlement, may be
settled, voluntarily dismissed, or compromised only with the
court's approval. The following procedures apply to a
proposed settlement, voluntary dismissal, or compromise:
(1) Notice to the Class.
(A) Information That Parties Shall Pro vide to the
Court. The parties shall provide the court with information
sufficient to enable it to determine whether to give notice
of the proposal to the class.
(B) Grounds for a Decision to Give Notice. The court
shall direct notice in a reasona ble manner to all class
members who would be bound by the proposal if giving notice
is justified by the parties' showing that the court will
likely be able to:
(i) approve the proposal under Rule 52.08(e)(2); and
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(ii) certify the class for pur poses of judgment on the
proposal.
(2) Approval of the Proposal. If the proposal would
bind class members, the court may approve it only after a
hearing and only on finding that it is fair, reasonable, and
adequate after considering whether:
(A) the class representatives and class counsel have
adequately represented the class;
(B) the proposal was negotiated at arm's length;
(C) the relief provided for the class is adequate,
taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of
distributing relief to the class, including the method of
processing class-member claims;
(iii) the terms of any proposed award of attorney's
fees, including timing of paym ent; and
(iv) any agreement required to be identified under Rule
52.08(e)(3); and
(D) the proposal treats class members equitably
relative to each other.
(3) Identifying Agreements. The parties seeking
approval shall file a statement iden tifying any agreement
made in connection with the proposal.
(4) New Opportunity to Be Excluded. If the class action
was previously certified under Rule 52.08(b)(3), the court
may refuse to approve a settlement unless it affords a new
opportunity to request exclusion to individual class members
who had an earlier opportunity to request exclusion but did
not do so.
(5) Class-Member Objections.
(A) In General. Any class member may object to the
proposal if it requires court approval under this Rule
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52.08(e). The objection shall state whether it applies only
to the objector, to a specific subset of the class, or to
the entire class, and also state with specificity the
grounds for the objection.
(B) Court Approval Required for Payme nt in Connection
with an Objection. Unless approved by the court after a
hearing, no payment or other consideration may be provided
in connection with:
(i) forgoing or withdrawing an objection; or
(ii) forgoing, dismissing, or abandoning an ap peal from
a judgment approving the proposal.
(f) Appeals. A court of appeals may permit an appeal
from an order granting or denying class -action certification
under this Rule 52.08, but not from an order under Rule
52.08(e)(1). An appeal does not stay the proceedings in the
trial court unless the trial judge or the court of appeals
so orders.
(g) Class Counsel.
(1) Appointing Class Counsel. Unless a statute provides
otherwise, a court that certifies a class shall appoint
class counsel. In appointing class counsel, the court:
(A) shall consider:
(i) the work counsel has done in identifying or
investigating potential claims in the action;
(ii) counsel's experience in handling class actions,
other complex litigation, and the types of claims asserted
in the action;
(iii) counsel's knowledge of the applicable law; and
(iv) the resources that counsel will commit to
representing the class;
(B) may consider any other matter pertinent to
counsel's ability to fa irly and adequately represent the
interests of the class;
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(C) may order potential class counsel to provide
information on any subject pertinent to the appointment and
to propose terms for attorney's fees and nontaxable costs;
(D) may include in the appointing order provisions
about the award of attorney's fees or nontaxable costs under
Rule 52.08(h); and
(E) may make further orders in connection with the
appointment.
(2) Standard for Appointing Class Counsel. When one
applicant seeks appointment as class counsel, the court may
appoint that applicant only if the applicant is adequate
under Rule 52.08(g)(1) and Rule 52.08(g)(4). If more than
one adequate applicant seeks appointment, the court shall
appoint the applicant best able to represent the interests
of the class.
(3) Interim Counsel. The court may designate interim
counsel to act on behalf of a putative class before
determining whether to certify the action as a class action.
(4) Duty of Class Counsel. Class co unsel shall fairly
and adequately represent the interests of the class.
(h) Attorney's Fees and Nontaxable Costs. In a
certified class action, the court may award reasonable
attorney's fees and nontaxable costs that are authorized by
law or by the parties' agreement. The following procedures
apply:
(1) A claim for an award shall be made by motion under
Rule 74.16, subject to the provisions of this Rule 52.08(h),
at a time the court sets. Notice of the motion shall be
served on all parties and, for motions by class counsel,
directed to class members in a reasonable manner.
(2) A class member, or a party from whom payment is
sought, may object to the motion.
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(3) The court may hold a hearing and shall find the
facts and state its legal conclusions.
(4) The court may refer issues related to the amount of
the award to a special master.