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Rule 23 of the Nevada Rules of Civil Procedure mirrored its federal counterpart until the Federal Rule was amended in 2003, revising subdivisions (c) and (e) and adding subdivisions (g) and (h).¹⁶² Nev. R. Civ. Proc. 23 drafter’s note, 2004 amendment. Despite the significant differences between the provisions now, the Nevada Supreme Court’s class-certification decisions continue to rely heavily upon the analogous portions of FRCP 23. See, e.g., Shuette v. Beazer Homes Holdings Corp., 124 P.3d 530, 538 (Nev. 2005).

Effective March 1, 2019, the Nevada Supreme Court implemented comprehensive changes to the Nevada Rules of Civil Procedure. The amendments to Rule 23 include structural and stylistic changes and the addition of two substantive provisions: Rule 23(b) and 23(d)(2).¹⁶³ Rule 23(b) authorizes aggregation of the value of class members’ claims to reach the district court jurisdictional amount. Notably, Rule 23(b) abrogates a Nevada Supreme Court decision that, albeit in dicta, declined to permit such aggregation. See Castillo v.

Nevada’s class certification requirements remained under-addressed until the Nevada Supreme Court handed down a comprehensive NRCP 23 discussion in Shuette v. Beazer Homes Holdings Corporation in 2005.¹⁶⁴ 124 P.3d 530 (Nev. 2005). In order for a litigant to obtain class certification under Nevada’s Rule 23, in addition to satisfying the ordinary rules of justiciability, the litigant must satisfy each of the four requirements of subsection (a) and meet at least one of the categories in subsection (c) (formerly subsection (b)).

The district courts have “‘broad discretion in deciding whether to certify a class action and [their] discretion will be reversed only if an abuse of discretion is shown.’” Sargeant, 394 P.3d at 1219 (quoting 7 AA Charles Alan Wright, Arthur Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1785 (3d ed. 2005)); accord Shuette, 124 P.3d at 537. The Nevada Supreme Court also reviews a district court’s decision to approve a class action settlement for an abuse of discretion. Murray, 514 P.3d 1081 (citing Marcuse v.

a. Aggregation of Class Damages for Jurisdictional Purposes

Rule 23. Class actions¹⁶⁹

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued 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;

In 1984, the New Hampshire Superior Court established Rule 16, the state’s class action rule.¹⁷⁰ The state’s high court had urged it to do so in State Employees’ Association of New Hampshire v. Belknap County, 122 N.H. 614, 448 A.2d 969 (N.H. 1982), wherein it had applied each of the several class requisites contained in then-current Rule 23 of the Federal Rules of Civil Procedure in its disposition of the appeal. Thus, Rule 16 essentially codified recent common law expressly derived from Federal Rule 23.

In Cantwell, supra, the plaintiff tenant sued his former landlord for failing to pay interest on security deposits in violation of state law. He sought classwide relief for all the landlord’s similarly situated former tenants. The defendant objected to the class claims, and in response to the objection the plaintiff filed his supporting class memorandum. At this point in the litigation, though, plaintiff had yet to receive responses to his discovery requests.

a. Bayview Crematory—The Need for Deep Individualized Inquiries Destroys Predominance

In Eby, supra, the plaintiffs were taxpayers who alleged a statute imposing a 10 percent state tax on all gambling winnings violated fairness provisions of the State’s Constitution as well as the dormant Commerce Clause. After affirming the trial court’s conclusion that the gambling tax did not violate the State’s Constitution, the Court considered the plaintiffs’ dormant Commerce Clause claim. Id. at 7. The Court did not need to reach the merits of the claim.

None of the three cases discussed above required the court to extend its Rule 16 analysis beyond a consideration of the predominance requisite to class certification. The state’s trial court, though, has provided guidance as to all of the class requisites enumerated within Rule 16. In Gibson v. Universal Underwriters Life Ins. Co., Hills. Cty (NH) Superior Court, No. Dist., CA 04-C-414 (N.H. Super. Ct.

State court class actions have only recently taken hold in New Hampshire. More plaintiffs’ lawyers have discovered the advantages that may flow out of the judicious use of this procedural device. At the same time, defense lawyers have become much more inclined to aggressively challenge bids for class status and to appeal certification orders. Inevitably, additional interpretations of Rule 16 will issue from the state’s highest court during the coming years.

Rule 16. Class Actions¹⁷¹

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all if:

(1) The class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;

The New Jersey class action rules are provided for in the New Jersey Court Rules 4:32-1 and 4:32-2 and largely mirror the language of Fed. R. Civ. P. 23.¹⁷² Goasdone v. American Cyanimid Corp., 354 N.J. Super. 519, 527, 808 A.2d 159, 164 (Law Div. 2002) (citing In the Matter of Cadillac V8-6-4 Class Action, 93 N.J. 412, 461 A.2d 736 (1983) (Cadillac)). The exceptions include replacement of Fed. R. Civ.

New Jersey courts construe class action rules liberally. Dugan v. TGI Fridays, Inc., 231 N.J. 24, 46, 171 A.3d 620, 633 (2017); Daniels v. Hollister Co., 440 N.J. Super. 359, 363, 113 A.3d 796, 798 (App. Div. 2015); Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 103, 922 A.2d 710, 718 (2007); Gross v. Johnson & Johnson-Merck Consumer Pharm. Co., 303 N.J. Super. 336, 340–41, 696 A.2d 793, 795 (Law Div. 1997); Saldana v. City of Camden, 252 N.J. Super. 188, 196, 599 A.2d 582, 586 (App. Div. 1991).

The prerequisites for a class action under Rule 4:32-1(a) follow those of Fed. R. Civ. P. 23(a)—(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. If these elements are met, plaintiffs must then show that one of the alternative requirements of Rule 4:32-1(b) (modeling Fed. R. Civ. P. 23(b)) is satisfied. See Goasdone, 354 N.J. Super. at 528, 808 A.2d at 164. The decision in Goasdone illustrates the application of the Rule 4:32-1(a) elements. 354 N.J. Super.

In connection with the standards for a (b)(2) class action certification, in Laufer v. The United States Life Ins. Co., 385 N.J. Super. 172, 896 A.2d 1101 (App. Div. 2006), the Appellate Division approved a (b)(2) class action in which the named plaintiff suffered an “ascertainable loss”—the requisite financial loss to bring a private claim under the New Jersey Consumer Fraud Act—by reason of defendant’s misleading description of its insurance policy.

“The decertification of a class, in whole or in part, is one of the remedies available to a trial court under Rule 4:32-2.” Little v. Kia Motors Am., Inc., 242 N.J. 557, 591, 233 A.3d 377, 396 (2020). With respect to the burden of proof on decertifying a class, Muise v. GPU, Inc., 371 N.J. Super. 13, 851 A.2d 799 (App. Div. 2004), placed on defendants the burden of producing evidence that class treatment was inappropriate. The Appellate Division, however, reversed the trial court, finding defendants had met the burden.

Rule 4:32-2(h) authorizes the court to award counsel fees and litigation expenses if authorized by law, rule or the parties’ agreement. Where plaintiffs’ claims are based on state statutes that contain fee-shifting provisions, New Jersey courts first calculate the lodestar in determining the amount of fees to award to the prevailing party. Rendine v. Pantzer, 141 N.J. 292, 334–35, 661 A.2d 1202 (1995). Courts achieve the lodestar by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. 141 N.J. at 334–35, 661 A.2d at 1226.

There is no blanket prohibition against counsel’s communications with absent putative class members. In Bayshore Ford Truck v. Ford Motor Co., 2009 U.S. Dist. LEXIS 106567, at *29 (D.N.J. Nov. 16, 2009), rev’d in part on other grounds, 540 Fed. App’x 113 (3d Cir.

In 2006, when R. 4:32 was amended to conform to the 2003 revisions to Fed. R. Civ. P. 23, it did not include a counterpart to Rule 23(f) providing for permissive interlocutory appeals of class certification decisions because other New Jersey rules already permitted discretionary interlocutory appeals. See R. 2:5-6 (appeals to the Appellate Division) and R. 2.2-2 (appeals to the Supreme Court). But these rules state the standards for interlocutory appeals in general terms and do not specifically address when interlocutory appeals of class certification decisions should be granted.

Rule 4:32-1. Requirements for Maintaining Class Action¹⁷⁵

(a) General Prerequisites to a Class Action. One or more members of a class may sue or be sued 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,

Rule 1-023 NMRA was adopted by the New Mexico Supreme Court effective July 1, 1995.¹⁷⁷ In 2000, New Mexico added subparagraph F to Rule 1-023 generally following the wording of Federal Rule 23(f), but New Mexico has not yet adopted the 2003 revisions to Federal Rule 23. In 2011, New Mexico added subparagraph G to Rule 1-023 to govern the disbursement of “residual funds.” At the present time, Rule 23 of the New Mexico Rules of Civil Procedure is no longer identical to Rule 23 of the Federal Rules of Civil Procedure.

a. Early Case Law under the Modern Rule

The vast majority of New Mexico’s state trial court judges still have no experience with class actions, either as judges or as attorneys. The appellate courts are now starting to actively review class action cases, and the law will continue to be developed in the next few years. Most district court judges have overwhelming dockets and very little support staff. In many courts, New Mexico district court judges have a secretary and a bailiff. Law clerks for district court judges are a rarity.