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§ 9-7. Class Actions—Prerequisites to Class Actions

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 text of Rule 52.08 of the Missouri Supreme Court Rules is similar to that of Rule 23 of the Federal Rules of Civil Procedure.⁵² State ex rel. American Family Mutual Ins. Co. v. Clark, 106 S.W.3d 483, 490 (Mo. banc 2003); State ex rel. Byrd v. Chadwick, 956 S.W.2d 369, 379 (Mo. Ct. App. 1997); Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911, 916 (Mo. Ct. App. 1983). Because Mo. Sup. Ct. R.

a. Rule 23 in general

The Utah Supreme Court has described the rule permitting the maintenance of class actions as “one of the most far-reaching and important changes in legal procedure in many a decade. Its impact on the enforcement of consumer rights, antitrust claims, securities claims and civil rights actions, to name but a few areas, has been monumental.” Richardson v. Ariz. Fuels Corp., 614 P.2d 636, 640 (Utah 1980).

One of the most important duties of class counsel is ensuring that class members get helpful information whenever a class is certified and when there is a proposed settlement. Meaningful and timely notice to class members allows them to decide whether to accept or opt out of the certification or settlement and whether to object. Thus, meaningful notice to the class is essential to protect class members’ rights.

When a court certifies a class under Rule 23(b)(3), whether on a contested motion or in conjunction with a proposed settlement,⁹ the federal rules require the court to “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.”¹⁰ The requirements of Rule 23(c)(2)(B)—listed later in this subsection—and federal court decisions provide valuable guidance for deciding what the “best notice

In addition to notice of certification of Rule 23(b)(3) classes after a disputed class certification motion,³⁰ class counsel must also ensure that a Rule 23(b)(3) class receives notice in the event of any settlement or judgment. If the settlement occurs before the court rules on a contested certification motion, then class counsel usually asks the court to certify the class at the same time as it considers the settlement.

When a court certifies a Rule 23(b)(3) class for purposes of settlement, the best (and near-universal) practice is to combine the notice of certification³⁵ and the notice of proposed settlement³⁶ into a single notice.³⁷ Combining the notices can significantly reduce overall cost and thus increase the amount of recovery that will actually end up in the hands of the class members.³⁸ The 2018 Advisory Committee

In contrast to the mandatory “best notice . . .

Courts have discretion to order additional notice at any stage of the proceeding to all or part of the class in order to protect the interests of the class members or for the fair conduct of the action.⁴⁶ In limited circumstances, a court may even order notice to an uncertified class.⁴⁷ If the terms of a proposed settlement are amended after notice has been given to the class, it is necessary to reissue notice if the amendment would affect a class member’s decision on whether to submit a claim, opt

When a case settles prior to certification on an individual basis—and the entire case will be dismissed—there are circumstances where some form of notice to absent class members is necessary due to the American Pipe rule tolling limitations as to absent class members while the case is pending.⁵¹ The need for notice is most acute when there has been press or some other form of public discussion of the lawsuit prior to the individual settlement.

In order to protect the interests of absent class members, including their interest in not being bound by a judgment in personam,⁵³ class actions must involve adequate procedures to satisfy not only the mandates of Rule 23⁵⁴ but also the Constitution’s guarantee of due process.⁵⁵ As the Supreme Court explained in Mullane v. Central Hanover Bank & Trust:

Rule 23 does not specifically set out the contents of Rule 23(b)(1) and (b)(2) notices.⁶⁴ However, for Rule 23(b)(3) classes, Rule 23(c)(2)(B) provides a list of the minimum content required for notice to class members, such as the class claims, the right to appear, and the right to opt out.⁶⁵ In addition to this minimum content, notice of certification of Rule 23(b)(3) classes⁶⁶ must provide “information that a reasonable person would consider to be mat

Notice that fails to provide class members with important information does not protect class members’ rights or satisfy due process requirements. On the other hand, long and complicated notices that class members are unlikely to read or understand similarly fail to protect the interests of the class. As previously noted, it’s always wise to avoid providing too much information.

The notice should anticipate common problems and inquiries from class members and should provide clear answers. Potential problems and inquiries will vary, depending on the purpose of the notice. Some basic provisions should be included in most post-certification or settlement notices:

The different types of notices have their own specific requirements, but there are general precepts and best practices to consider when drafting any notice to the class. The overarching principle is that, besides complying with specific notice requirements, class counsel should make sure that all notices are easy to understand.⁹¹

When possible, use of claim forms should be avoided. As NACA Guideline 11 provides:

Class counsel should approach settlement discussion with a presumption against using claim forms, so that claim forms are used only where necessary.

Claim forms should not be used when the identity and location of class members can be determined from the defendant’s records, or when relief provided by the settlement is an account credit in an amount that the defendant can administer based on its records.

In order to send notice to the class, counsel must first assemble an accurate and complete list of class members. Either the plaintiff’s or defendant’s counsel can assemble the list using the defendant’s records.

Because class litigation can be lengthy and people frequently move, merely mailing a class settlement notice to class members’ last known addresses may result in a significant number of undeliverable notices. Therefore, it is essential to take all reasonable steps necessary to update class members’ addresses.

When providing class notice via mail, indicate on the front of the envelope that it contains an important court notice. This is especially important if the mailing is large or if class members might perceive the letter as junk mail.

There are three primary types of return addresses for class members to use to file a proof of claim, opt out, or object.

In the past, courts often required the use of first-class mail to individual class members for notices sent to Rule 23(b)(3) classes. First class mail may be appropriate for other types of notices as well.¹¹⁷ Notice need not be sent by certified mail.¹¹⁸

Although Rule 23(c)(2)(B) does not require it, the 2018 Advisory Committee Notes recognize that first class mail may still be the preferred primary method of giving notice. Specifically, the Advisory Committee Notes caution that it is important to keep in mind that a significant portion of class members in certain cases may have limited or no access to email or the internet. In such circumstances, it would be appropriate to rely upon first class mail to reach the absent class members.

If class members cannot be identified or located using the defendant’s records or any other source, notice by publication is necessary. Publication may be important as a supplement to other forms of notice. However, merely publishing the notice in printed media provides few practical benefits because class members are unlikely to see the published notice.

Prior to the 2018 amendments to Rule 23(c)(2)(B), many courts read the rule as requiring notice by first class mail,¹²⁷ while others often approved the use of appropriate websites—along with other means of communication—to provide information about the settlement notice.¹²⁸ Following the 2018 amendments, electronic means are now explicitly included as one of several acceptable methods of providing notice to Rule 23(b)(3) certified classes (as well as any other class certified for the purposes of

If a class action is certified but not yet settled, “the plaintiff must pay for the cost of notice as part of the ordinary burden of financing [their] own suit.”¹⁴³ “[A] bare allegation of wrongdoing . . . is not a fair reason for requiring a defendant to undertake financial burdens and risks to further a plaintiff’s case.”¹⁴⁴ The expense of giving notice includes all costs involved in making the notice effective.¹⁴⁵