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Federal Rule of Civil Procedure 12(b)(3) provides in part:

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

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(3) improper venue;

A Report of the State Laws Subcommittee of the Class Actions and Derivative Suits Committee

American Bar Association

Section of Litigation

Elizabeth J. Cabraser

Fabrice N. Vincent

Executive Editors

Nikki Belushko Barrows

Fred Burnside

Daniela Gonzales Aldape

Jahan C. Sagafi

This survey was prepared by attorneys in the various states, under the auspices of the American Bar Association’s Litigation Section Class Actions and Derivative Suits Subcommittee on State Laws, co-chaired by Fabrice Vincent and Dennis Egan.

The power of internet and other modern technologies allows class members to follow and participate in class action litigation like never before. The internet empowers class counsel to easily and cost effectively communicate with the entire class, giving stronger voices to class members and creating participation opportunities that, in turn, allows reviewing courts broad feedback and information supporting informed and sophisticated decisions on case management issues, class certification and proposed settlements.

Rule 23 of the Alabama Rules of Civil Procedure is essentially identical to Rule 23 of the Federal Rules of Civil Procedure as it appeared prior to the amendments of 1998.¹ The language contained in section 23(e) of the federal rule is more detailed than section 23(e) of the Alabama rule. Moreover, the 1998 amendment to the federal rules added section 23(f), which permits interlocutory appeals of certification rulings. As noted below, the Alabama Legislature in 1999 enacted legislation providing for a right of appeal from such decisions. Ala.

In 1999, the Alabama Legislature enacted, and the Governor signed into law, two bills addressing class action issues. Those statutes should be read carefully because they include provisions that govern important procedures for class actions in Alabama, including certain deadlines, a planning conference, potential stays of certain types of discovery, requirements for any class-certification order, and appeals. As codified, they provide as follows:

Ala. Code § 6-5-641. Certification of classes

In order to qualify for class treatment, claims must satisfy all of the requirements of Rule 23(a) and all of the requirements of at least one subsection of Rule 23(b), and the named plaintiff must have standing to bring the claims. Wyeth, Inc. v. Blue Cross & Blue Shield of Ala., 42 So. 3d 1216, 1219 (Ala. 2010), citing Smart Prof’l Photocopy Corp. v. Childers-Sims, 850 So. 2d 1245, 1248–49 (Ala. 2002); Ryan v. Patterson, 23 So. 3d 12, 17 (Ala. 2009), citing Smart Prof’l Photocopy Corp., 850 So. 2d at 1248–49; Houston County Health Care Auth.

An order certifying a class will be reviewed by the appellate court for abuse of discretion, but the appellate court will review de novo the question of whether the trial court applied the correct legal standard in reaching the decision to grant certification. Perdue v. Green, 127 So. 3d 343 (Ala. 2013); Baldwin Mutual Ins. Co. v. Edwards, 63 So. 3d 1268, 1271 (Ala. 2010); Wyeth, Inc. v. Blue Cross & Blue Shield of Ala., 42 So. 3d 1216, 1218–19 (Ala. 2010); Ryan v. Patterson, 23 So. 3d 12, 17 (Ala. 2009); Univ. Fed. Credit Union v.

a. Rule 23(a)

a. Arbitration and Class Actions

In 1998, the Supreme Court of Alabama held that class-wide arbitration is not permitted absent an arbitration agreement permitting the disposition of claims in that manner. Med Ctr. Cars, Inc. v. Smith, 727 So. 2d 9, 33 (Ala. 1998). The court concluded that to require arbitration on a class-wide basis without such an agreement would alter the terms of the parties’ contract. Id.

Alabama state courts have not addressed communications with putative absent class members under Rule 23. Alabama federal courts, however, have acknowledged the general right to contact putative class members under Rule 23, while recognizing the court’s right to limit such contacts when abuse occurs. Cox Nuclear Medicine v. Gold Cup Coffee Services, Inc., 214 F.R.D. 696, 697 (S.D. Alabama 2003); Edwards v. Accredited Home Lenders, 2008 WL 176364, at *1 (S.D. Ala.

Rule 23. Class Actions³

(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, (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.

The provisions of Alaska Rule of Civil Procedure 23(a)–(e) are largely identical to those of Federal Rule of Civil Procedure 23(a)–(e), except insofar as certain stylistic changes were made to the federal rule in 2007.⁴ Alaska has not adopted a version of Fed. R. Civ. P. 23(f) allowing a discretionary appeal of a class action ruling.

a. Rule 23(a)

i. Numerosity. In State Dep’t of Revenue v. Andrade, 23 P.3d 58, 67 (Alaska 2001), the Alaska Supreme Court affirmed the trial court’s holding that the numerosity requirement was met in a class action with at least twenty named plaintiffs who asserted that there were potentially hundreds of other similarly situated individuals affected by the challenged agency action.

Rule 23. Class Actions⁵

(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, (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.

Rule 23 of the Arizona Rules of Civil Procedure is largely the same as the corresponding federal rule, with the exception of Arizona’s Rule 23(c)(1), which requires an early hearing on class certification motions, in addition to a written order containing reasoning and evidentiary findings, and Arizona’s Rule 23(f), which presumes that discovery and proceedings will be stayed while any appeal is pending.⁶ Most recently, as amended effective January 1, 2021, the Arizona Rule requires new notice and approval procedures for class settlements to comp

Arizona statutes, effective September 13, 2013, and codified as A.R.S. §§ 12-1871 through 12-1873, marked the legislature’s effort to modify class certification procedure for all actions filed after the effective date of the statute. A.R.S. § 12-1871 provides that “(A) after the commencement of an action that is brought as a class action and after a hearing, the court shall determine by order whether the action is to be maintained as a class action. The court may condition, alter, amend or withdraw its order at any time before the decision on the merits.

All of the requirements of Rule 23(a) and the requirements of at least one section of Rule 23(b) must be met in order for a class to be certified. London, 765 P.2d at 541; Lennon, 518 P.2d at 1234. Rule 23(a) also requires that the plaintiff be a member of the proposed class, and that a definable class exist. Lennon, 518 P.2d at 1232. The burden is on the plaintiff to demonstrate compliance with all of the requirements of Rule 23. Id. The plaintiff must also have a personal stake, and therefore standing, at the time that the action is brought.

a. Standing

Rule 23. Class Actions¹¹

(a) Prerequisites. One or more 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;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

Class actions in Arkansas are governed by Rule 23 of the Arkansas Rules of Civil Procedure.¹² While the language of Arkansas Rule 23 largely mirrors the Federal Rule, there are two notable exceptions: (1) the Arkansas Rule does not subdivide subsection (b) into three separate types of class actions as does Federal Rule 23(b), and (2) the Arkansas Rule omits subsections (f) through (h) found in the Federal Rule. Despite these differences, the Arkansas Supreme Court has said that “we will interpret Ark. R. Civ. P.

a. Source: Reporter’s Notes

[Reprinted from the Reporter’s Notes published with AR Order 07.]

“All parts of the Rule have been revised [by amendments in 2006]. Many of these changes echo recent amendments to Federal Rule of Civil Procedure 23, while others incorporate the holding of recent Arkansas decisions and current Arkansas practice. With a few exceptions, the changes are technical and do not change Arkansas law.

Rule 23. Class Actions¹⁴

California’s operative general class action statute, Code of Civil Procedure § 382, was enacted in 1872 as part of California’s Field Code and has remained essentially unchanged.¹² California’s second class action statute, the Consumer Legal Remedies Act, is found at Civil Code §§ 1750, et seq., and lists 23 prohibited acts, violations of which form the basis for class actions seeking damages and a wide variety of other remedies.

Effective January 1, 2002, the California Judicial Council adopted a comprehensive system of uniform statewide Management of Class Action Rules (Cal. Rules of Ct., Rules 3.760–3.771.). These Rules supersede a patchwork of disparate local rules from Los Angeles, San Francisco, and San Diego counties. From the form of the complaint to the judgment, the new Rules provide a uniform procedure governing most aspects of class actions in California.