Comments sought on proposed changes to federal class action rule

By Jessica Karmasek | Nov 14, 2016

WASHINGTON (Legal Newsline) - Members of the public, bar and bench have three months remaining to submit written comments on various proposed amendments to the Federal Rules of Practice and Procedure, most notably an update to the rule governing class action lawsuits.

The proposals were published in August by the Judiciary’s Committee on Rules of Practice and Procedure. Written comments are due by Feb. 15, 2017.

The recommendations, which also include a proposal to mandate electronic filings by lawyers, among other things, could affect eight appellate rules, 12 bankruptcy rules, four civil rules and three criminal rules, as well as bankruptcy and appellate forms and a bankruptcy rules appendix, according to the U.S. Courts.

“All comments on these proposed amendments will be carefully considered by the advisory committees, which are composed of experienced trial and appellate lawyers, judges and scholars,” wrote Judge Jeffrey S. Sutton, chair of the Committee on Rules of Practice and Procedure, in an August letter introducing the proposals.

According to Sutton’s letter, a total of eight public hearings, each covering specified amendments, have been scheduled, starting last month through Feb. 24, 2017.

To submit testimony or written comments, click here.

Civil Rule 23, which governs class action lawsuits, has been amended four times since its adoption in 1934. Most recently, it was revised in 2003.

The current proposed changes to the rule were discussed in nearly two dozen meetings, according to a report signed by Judge John D. Bates, chair of the Judiciary’s Advisory Committee on Civil Rules.

“The principal topic of the proposed amendments is the process of settling class actions, which is important because many class actions settle and the court has distinctive responsibilities in reviewing such settlements,” the report said, according to the U.S. Courts.

One amendment would create a standardized set of factors for judges to consider, in deciding whether to approve a class-action settlement as “fair, reasonable and adequate.” Currently, these factors vary among federal appellate courts.

Other changes would guide judges in assessing whether to certify a class action for settlement purposes, and permit electronic as well as paper notification of potential class action participants.

“Generally, the amendments would codify the common practice of sending concurrent notice to class members for both the action itself and the potential settlement; allow notice through more modern means; and place more obligations on parties to provide the court with a record before notifications are sent out,” Christopher P. Gramling, assistant general counsel to Eli Lilly and Company, wrote in a counsel’s advisory for the Washington Legal Foundation last week. “Further, the amendments would mandate a hearing to determine if the proposed settlement is fair, reasonable and adequate, and codifies a balancing test of factors.

“Finally, the amendments would provide additional requirements for class member objections while eliminating courts’ approval for each withdrawal of an objection.”

The federal judiciary’s rulemaking process is guided by the Rules Enabling Act.

Amendments to the Federal Rules of Practice Procedure usually require two to three years of review, public hearings and multiple layers of approval.

Before any amendments are adopted, they must be approved by the Committee on Rules of Practice and Procedure, the Judicial Conference of the United States and the U.S. Supreme Court. Congress then has a time period in which it can reject changes approved by the Judiciary.

The earliest the proposed amendments can be adopted is Dec. 1, 2018, according to the U.S. Courts.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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