Civil procedure: class actions

The cards

1. FRCP 23Class Actions
2. FRCP 23(a): One or more members of a class may sue or be sued as representative parties on behalf of all members only if
   1. 1the class is so numerous that joinder of all members is impracticable
   2. 2there are questions of law or fact common to the class
   3. 3the claims or defenses of the representative parties are typical of the claims or defenses of the class
   4. 4the representative parties will fairly and adequately protect the interests of the class
3. FRCP 23(b): A class action may be maintained if Rule 23(a) is satisfied and if
   1. 1prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that 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 parties to the individual adjudications or would substantially impair or impede their ability to protect their interests
   2. 2the 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
   3. 3the 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; (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
4. FRCP 23(c)(1)(A): Time to IssueAt an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
5. FRCP 23(c)(2)(B): For (b)(3) Classes
   1. 1the nature of the action
   2. 2the definition of the class certified
   3. 3the class claims, issues, or defenses
   4. 4that a class member may enter an appearance through an attorney if the member so desires
   5. 5that the court will exclude from the class any member who requests exclusion
   6. 6the time and manner for requesting exclusion
   7. 7the binding effect of a class judgment on members under Rule 23(c)(3)
   For any class certified under Rule 23(b)(3)—or upon ordering notice under Rule 23(e)(1) to a class proposed to be certified for purposes of settlement under Rule 23(b)(3)—the court must 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 must clearly and concisely state in plain, easily understood language:
6. FRCP 23(c)(4): Particular IssuesWhen appropriate, an action may be brought or maintained as a class action with respect to particular issues.
7. FRCP 23(c)(5): SubclassesWhen appropriate, a class may be divided into subclasses that are each treated as a class under this rule.
8. FRCP 23(e): Settlement, Voluntary Dismissal, or Compromise
   1. 1Notice to the Class
   2. 2Approval of the Proposal
   3. 3Identifying Agreements
   4. 4New Opportunity to Be Excluded
   5. 5Class-Member Objections
   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:
9. FRCP 23(e)(2): 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
   1. 1the class representatives and class counsel have adequately represented the class
   2. 2the proposal was negotiated at arm’s length
   3. 3the 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 payment; and (iv) any agreement required to be identified under Rule 23(e)(3)
   4. 4the proposal treats class members equitably relative to each other
10. FRCP 23(f): AppealsA court of appeals may permit an appeal from an order granting or denying class-action certification under this rule, but not from an order under Rule 23(e)(1). A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered, or within 45 days after the order is entered if any party is the United States, a United States agency, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States’ behalf. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
11. FRCP 23(g)(1): Appointing Class Counsel
    1. 1must 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
    2. 2may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class
    3. 3may 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
    4. 4may include in the appointing order provisions about the award of attorney’s fees or nontaxable costs under Rule 23(h)
    5. 5may make further orders in connection with the appointment
    Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:
12. FRCP 23(g)(4): Duty of Class CounselClass counsel must fairly and adequately represent the interests of the class.

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