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
[PERFECTED]
SENATE SUBSTITUTE FOR
SENATE COMMITTEE SUBSTITUTE FOR
SENATE BILL NO. 47
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR TRENT.
0064S.04P 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 mor e 2
members of a class may sue or be sued as representative 3
parties on behalf of all only if (1) the class is so 4
numerous that joinder of all members is impracticable, (2) 5
there are questions of law or fact common to the class, (3) 6
the claims or defense s of the representative parties are 7
typical of the claims or defenses of the class, and (4) the 8
representative parties will fairly and adequately protect 9
the interests of the class. 10
(b) Class Actions Maintainable. An action may be 11
maintained as a class action if the prerequisites of 12
subdivision (a) are satisfied, and in addition: 13
(1) the prosecution of separate actions by or against 14
individual members of the class would create a risk of 15 SS SCS SB 47 2
(A) inconsistent or varying adjudications with res pect 16
to individual members of the class which would establish 17
incompatible standards of conduct for the party opposing the 18
class, or 19
(B) adjudications with respect to individual members of 20
the class which would as a practical matter be dispositive 21
of the interests of the other members not parties to the 22
adjudications or substantially impair or impede their 23
ability to protect their interests; or 24
(2) the party opposing the class has acted or refused 25
to act on grounds generally applicable to the class, thereby 26
making appropriate final injunctive relief or corresponding 27
declaratory relief with respect to the class as a whole; or 28
(3) the court finds that the questions of law or fact 29
common to the members of the class predominate over any 30
questions affecting only individual members, and that a 31
class action is superior to other available methods for the 32
fair and efficient adjudication of the controversy. The 33
matters pertinent to the findings include: 34
(A) the interest of members of the class in 35
individually controlling the prosecution or defense of 36
separate actions; 37
(B) the extent and nature of any litigation concerning 38
the controversy already commenced by or against members of 39
the class; 40
(C) the desirability or undesir ability of concentrating 41
the litigation of the claims in the particular forum; 42
(D) the difficulties likely to be encountered in the 43
management of a class action. 44
(c) Determination by Order Whether Class Action to Be 45
Maintained - Notice - Judgment - Actions Conducted Partially 46
as Class Actions. 47 SS SCS SB 47 3
(1) As soon as practicable after the commencement of an 48
action brought as a class action, the court shall determine 49
by order whether it is to be so maintained. An order under 50
this Rule 52.08(c)(1 ) may be conditional and may be altered 51
or amended before the decision on the merits. 52
(2) In any class action maintained under Rule 53
52.08(b)(3), the court shall direct to the members of the 54
class the best notice practicable under the circumstances, 55
including individual notice to all members who can be 56
identified through reasonable effort. The notice shall 57
advise each member that: (A) the court will exclude the 58
member from the class if requested by a specified date; (B) 59
the judgment, whether fav orable or not, will include all 60
members who do not request exclusion; and (C) any member who 61
does not request exclusion may, if desired, enter an 62
appearance through counsel. 63
(3) The judgment in an action maintained as a class 64
action under Rule 52. 08(b)(1) or Rule 52.08(b)(2), whether 65
or not favorable to the class, shall include and describe 66
those whom the court finds to be members of the class. The 67
judgment in an action maintained as a class action under 68
Rule 52.08(b)(3), whether or not favorab le to the class, 69
shall include and specify or describe those to whom the 70
notice provided in Rule 52.08(c)(2) was directed, and who 71
have not requested exclusion, and whom the court finds to be 72
members of the class. 73
(4) When appropriate an action ma y be brought or 74
maintained as a class action with respect to particular 75
issues or a class may be divided into subclasses and each 76
subclass treated as a class, and the provisions of this Rule 77
52.08 shall then be construed and applied accordingly. 78 SS SCS SB 47 4
(d) Orders in Conduct of Actions. In the conduct of 79
actions to which this Rule applies, the court may make 80
appropriate orders: 81
(1) determining the course of proceedings or 82
prescribing measures to prevent undue repetition or 83
complication in the pres entation of evidence or argument; 84
(2) requiring, for the protection of the members of the 85
class or otherwise for the fair conduct of the action, that 86
notice be given in such manner as the court may direct to 87
some or all of the members of any step i n the action, or of 88
the proposed extent of the judgment, or of the opportunity 89
of members to signify whether they consider the 90
representation fair and adequate, to intervene and present 91
claims or defenses, or otherwise to come into the action; 92
(3) imposing conditions on the representative parties 93
or on intervenors; 94
(4) requiring that the pleadings be amended to 95
eliminate therefrom allegations as to representation of 96
absent persons, and that the action proceed accordingly; 97
(5) dealing with similar procedural matters. 98
The orders may be combined with an order under Rule 62, and 99
may be altered or amended as may be desirable from time to 100
time. 101
(e) Dismissal or Compromise. A class action shall not 102
be dismissed or compromised without t he approval of the 103
court, and notice of the proposed dismissal or compromise 104
shall be given to all members of the class in such manner as 105
the court directs. 106
(f) Appeals. An appellate court may permit an appeal 107
from an order of a circuit court gran ting or denying class 108
action certification under this Rule 52.08 if a petition is 109 SS SCS SB 47 5
timely filed as provided in Rule 84.035. The filing of a 110
petition shall not stay the proceedings in the trial court 111
unless the trial judge or the appellate court so order s.] 112
(a) Prerequisites. One or more members of a class may 113
sue or be sued as representative parties on behalf of all 114
members only if: 115
(1) the class is so numerous that joinder of all 116
members is impracticable; 117
(2) there are questions of law or fact common to the 118
class; 119
(3) the claims or defenses of the representative 120
parties are typical of the claims or defenses of the class; 121
and 122
(4) the representative parties will fairly and 123
adequately protect the interests of the class. 124
(b) Types of Class Actions. A class action may be 125
maintained if Rule 52.08(a) is satisfied, and if: 126
(1) prosecuting separate actions by or against 127
individual class members would create a risk of: 128
(A) inconsistent or varying adjudications with r espect 129
to individual class members that would establish 130
incompatible standards of conduct for the party opposing the 131
class; or 132
(B) adjudications with respect to individual class 133
members that, as a practical matter, would be dispositive of 134
the interests of the other members not parties to the 135
individual adjudications or would substantially impair or 136
impede their ability to protect their interests; 137
(2) the party opposing the class has acted or refused 138
to act on grounds that apply generally t o the class, so that 139
final injunctive relief or corresponding declaratory relief 140
is appropriate respecting the class as a whole; or 141 SS SCS SB 47 6
(3) the court finds that the questions of law or fact 142
common to class members predominate over any questions 143
affecting only individual members, and that a class action 144
is superior to other available methods for fairly and 145
efficiently adjudicating the controversy. The matters 146
pertinent to these findings include: 147
(A) the class members' interests in individually 148
controlling the prosecution or defense of separate actions; 149
(B) the extent and nature of any litigation concerning 150
the controversy already begun by or against class members; 151
(C) the desirability or undesirability of concentrating 152
the litigation of the claims in the particular forum; and 153
(D) the likely difficulties in managing a class action. 154
(c) Certification Order - Notice to Class Members - 155
Judgment - Issues Classes - Subclasses. 156
(1) Certification Order. 157
(A) Time to Issue. At an early practicable time after a 158
person sues or is sued as a class representative, the court 159
shall determine by order whether to certify the action as a 160
class action. 161
(B) Defining the Class - Appointing Class Counsel. An 162
order that certifies a class action shall define the class 163
and the class claims, issues, or defenses, and shall appoint 164
class counsel under Rule 52.08(g). 165
(C) Altering or Amending the Order. An order that 166
grants or denies class certification may be altered or 167
amended before final judgment. 168
(2) Notice. 169
(A) For (b)(1) or (b)(2) Classes. For any class 170
certified under Rule 52.08(b)(1) or Rule 52.08(b)(2), the 171
court may direct appropriate notice to the class. 172 SS SCS SB 47 7
(B) For (b)(3) Classes. For any class certified under 173
Rule 52.08(b)(3), or upon ordering notice under Rule 174
52.08(e)(1) to a class proposed to be certified for purposes 175
of settlement under Rule 52.08(b)(3), the court shall direct 176
to class members the best notice that is practicable under 177
the circumstances, including individual notice to all 178
members who can be identified through reasonable effort. The 179
notice may be by one or more of the following: United States 180
mail, electronic means, or other appropriate means. The 181
notice shall clearly and concis ely state in plain, easily 182
understood language: 183
(i) the nature of the action; 184
(ii) the definition of the class certified; 185
(iii) the class claims, issues, or defenses; 186
(iv) that a class member may enter an appearance 187
through an attorney if the member so desires; 188
(v) that the court will exclude from the class any 189
member who requests exclusion; 190
(vi) the time and manner for requesting exclusion; and 191
(vii) the binding effect of a class judgment on members 192
under Rule 52.08(c)(3). 193
(3) Judgment. Whether or not favorable to the class, 194
the judgment in a class action shall: 195
(A) for any class certified under Rule 52.08(b)(1) or 196
Rule 52.08(b)(2), include and describe those whom the court 197
finds to be class members; and 198
(B) for any class certified under Rule 52.08(b)(3), 199
include and specify or describe those to whom the notice 200
under Rule 52.08(c)(2) was directed, who have not requested 201
exclusion, and whom the court finds to be class members. 202 SS SCS SB 47 8
(4) Particular Issues. When appropriate, an action may 203
be brought or maintained as a class action with respect to 204
particular issues. 205
(5) Subclasses. When appropriate, a class may be 206
divided into subclasses that are each treated as a class 207
under this Rule 52.08. 208
(d) Conducting the Action. 209
(1) In General. In conducting an action under this Rule 210
52.08, the court may issue orders that: 211
(A) determine the course of proceedings or prescribe 212
measures to prevent undue repetition or complication in 213
presenting evidence or argument; 214
(B) require, to protect class members and fairly 215
conduct the action, giving appropriate notice to some or all 216
class members of: 217
(i) any step in the action; 218
(ii) the proposed extent of the judgment; or 219
(iii) the members' opportunity to signify whether they 220
consider the representation fair and adequate, to intervene 221
and present claims or defenses, or to otherwise come into 222
the action; 223
(C) impose conditions on the representative parties or 224
on intervenors; 225
(D) require that the pleadings be amended to eliminate 226
allegations about representation of absent persons and that 227
the action proceed accordingly; or 228
(E) deal with similar procedural matters. 229
(2) Combining and Amending Orders. An order und er Rule 230
52.08(d)(1) may be altered or amended from time to time and 231
may be combined with an order under Rule 62.01. 232
(e) Settlement, Voluntary Dismissal, or Compromise. The 233
claims, issues, or defenses of a certified class, or a class 234 SS SCS SB 47 9
proposed to be certified for purposes of settlement, may be 235
settled, voluntarily dismissed, or compromised only with the 236
court's approval. The following procedures apply to a 237
proposed settlement, voluntary dismissal, or compromise: 238
(1) Notice to the Class. 239
(A) Information That Parties Shall Provide to the 240
Court. The parties shall provide the court with information 241
sufficient to enable it to determine whether to give notice 242
of the proposal to the class. 243
(B) Grounds for a Decision to Give Notice. The c ourt 244
shall direct notice in a reasonable manner to all class 245
members who would be bound by the proposal if giving notice 246
is justified by the parties' showing that the court will 247
likely be able to: 248
(i) approve the proposal under Rule 52.08(e)(2); a nd 249
(ii) certify the class for purposes of judgment on the 250
proposal. 251
(2) Approval of the Proposal. If the proposal would 252
bind class members, the court may approve it only after a 253
hearing and only on finding that it is fair, reasonable, and 254
adequate after considering whether: 255
(A) the class representatives and class counsel have 256
adequately represented the class; 257
(B) the proposal was negotiated at arm's length; 258
(C) the relief provided for the class is adequate, 259
taking into account: 260
(i) the costs, risks, and delay of trial and appeal; 261
(ii) the effectiveness of any proposed method of 262
distributing relief to the class, including the method of 263
processing class-member claims; 264
(iii) the terms of any proposed award of atto rney's 265
fees, including timing of payment; and 266 SS SCS SB 47 10
(iv) any agreement required to be identified under Rule 267
52.08(e)(3); and 268
(D) the proposal treats class members equitably 269
relative to each other. 270
(3) Identifying Agreements. The parties seeking 271
approval shall file a statement identifying any agreement 272
made in connection with the proposal. 273
(4) New Opportunity to Be Excluded. If the class action 274
was previously certified under Rule 52.08(b)(3), the court 275
may refuse to approve a settlement unless it affords a new 276
opportunity to request exclusion to individual class members 277
who had an earlier opportunity to request exclusion but did 278
not do so. 279
(5) Class-Member Objections. 280
(A) In General. Any class member may object to the 281
proposal if it requires court approval under this Rule 282
52.08(e). The objection shall state whether it applies only 283
to the objector, to a specific subset of the class, or to 284
the entire class, and also state with specificity the 285
grounds for the objection. 286
(B) Court Approval Required for Payment in Connection 287
with an Objection. Unless approved by the court after a 288
hearing, no payment or other consideration may be provided 289
in connection with: 290
(i) forgoing or withdrawing an objection; or 291
(ii) forgoing, dismissing, or abandoning an appeal from 292
a judgment approving the proposal. 293
(f) Appeals. A court of appeals may permit an appeal 294
from an order granting or denying class -action certification 295
under this Rule 52.08, but not from an order under Rule 296
52.08(e)(1). An appeal does not stay the proceedings in the 297 SS SCS SB 47 11
trial court unless the trial judge or the court of appeals 298
so orders. 299
(g) Class Counsel. 300
(1) Appointing Class Counsel. Unless a statute provides 301
otherwise, a court that certifie s a class shall appoint 302
class counsel. In appointing class counsel, the court: 303
(A) shall consider: 304
(i) the work counsel has done in identifying or 305
investigating potential claims in the action; 306
(ii) counsel's experience in handling class ac tions, 307
other complex litigation, and the types of claims asserted 308
in the action; 309
(iii) counsel's knowledge of the applicable law; and 310
(iv) the resources that counsel will commit to 311
representing the class; 312
(B) may consider any other matter pertinent to 313
counsel's ability to fairly and adequately represent the 314
interests of the class; 315
(C) may order potential class counsel to provide 316
information on any subject pertinent to the appointment and 317
to propose terms for attorney's fees and no ntaxable costs; 318
(D) may include in the appointing order provisions 319
about the award of attorney's fees or nontaxable costs under 320
Rule 52.08(h); and 321
(E) may make further orders in connection with the 322
appointment. 323
(2) Standard for Appointing Class Counsel. When one 324
applicant seeks appointment as class counsel, the court may 325
appoint that applicant only if the applicant is adequate 326
under Rule 52.08(g)(1) and Rule 52.08(g)(4). If more than 327
one adequate applicant seeks appointment, the court shall 328 SS SCS SB 47 12
appoint the applicant best able to represent the interests 329
of the class. 330
(3) Interim Counsel. The court may designate interim 331
counsel to act on behalf of a putative class before 332
determining whether to certify the action as a class action. 333
(4) Duty of Class Counsel. Class counsel shall fairly 334
and adequately represent the interests of the class. 335
(h) Attorney's Fees and Nontaxable Costs. In a 336
certified class action, the court may award reasonable 337
attorney's fees and nontaxable costs that are authorized by 338
law or by the parties' agreement. The following procedures 339
apply: 340
(1) A claim for an award shall be made by motion under 341
Rule 74.16, subject to the provisions of this Rule 52.08(h), 342
at a time the court sets. Notice of the m otion shall be 343
served on all parties and, for motions by class counsel, 344
directed to class members in a reasonable manner. 345
(2) A class member, or a party from whom payment is 346
sought, may object to the motion. 347
(3) The court may hold a hearing an d shall find the 348
facts and state its legal conclusions. 349
(4) The court may refer issues related to the amount of 350
the award to a special master. 351