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Consumer Class Actions: 5. Contacting Absent Class Members

In Connecticut, there is no state court decision on the issue of whether opposing counsel may ethically communicate with absent putative class members. In a 2011 Informal Opinion, however, the Connecticut Bar Association Professional Ethics Committee concluded that “unless and until the class is certified by the Court, the Requesting Attorney may contact the putative class members.” CBA Informal Op. 2011-09. The Professional Ethics Committee noted that its research did not reveal any Connecticut authority regarding the permissibility of communications with putative class members.

Consumer Class Actions: CONNECTICUT CLASS ACTION STATUTES

Conn. Gen. Stat. § 52-105. Numerous parties may be represented by one.40

When the persons who might be made parties are very numerous, so that it would be impracticable or unreasonably expensive to make them all parties, one or more may sue or be sued or may be authorized by the court to defend for the benefit of all.

Conn. Gen. Stat. § 42-110g. Action for damages. Class actions. Costs and fees. Equitable relief. Jury trial.41

Consumer Class Actions: CONNECTICUT RULES FOR THE SUPERIOR COURT, PROCEDURE IN CIVIL MATTERS

§ 9-7. Class Actions; Prerequisites to Class Actions44

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.

Consumer Class Actions: 1. Comparison of Delaware Rules with Rule 23 of the Federal Rules of Civil Procedure

Delaware continues to maintain separate law and equity courts.48 The law court at the trial level is the Superior Court; the equity court is the Court of Chancery. The class action rules in the Superior Court and the Court of Chancery are similar to Fed. R. Civ. P. 23. O’Malley v. Boris, C.A. No. 15735, 2001 WL 50204 (Del. Ch. Jan. 11, 2001). Because of the similarity between the state rules and Fed. R. Civ. P. 23, federal case law and the Advisory Committee’s notes are considered persuasive authority in Delaware state court actions.

Consumer Class Actions: 3. Miscellaneous Comments

Settlement classes are permissible, but the trial court must explicitly determine that all of the requirements of Rule 23 are satisfied. Prezant, 636 A.2d 915. This determination is the first in a series of steps the court takes in considering whether to approve a settlement. In re AMC Ent. Holdings, Inc. S’holder Litig., 2023 WL 4677722, at *14 (Del. Ch. July 21, 2023).

Consumer Class Actions: 4. Case Law Involving the Tolling of Limitations Periods During the Pendency of a Class Action

In Delaware, the statute of limitations for claims is tolled during the pendency of a class action. Dow Chem. Corp. v. Blanco, 67 A.3d 392 (Del. 2013) (holding as a matter of first impression that the statute of limitations was tolled in Delaware while a class action was pending in Texas); Dubroff v. Wren Holdings, C.A. Nos. 3940 & 6067, 2011 WL 5137175 (Del. Ch. Oct. 28, 2011).

Consumer Class Actions: DELAWARE CHANCERY COURT RULES

Rule 23. Class actions49

(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;

Consumer Class Actions: 2. Case Law Interpreting District of Columbia Rule 23

The trial court has discretion in determining whether a proposed class is proper. Yarmolinsky v. Perpetual Am. Fed. Sav. and Loan Assoc., 451 A.2d 92, 94 (D.C. 1982); see Cowan v. Youssef, 687 A.2d 594, 602 (D.C. 1996) (“[W]hen the trial court conducts a thorough review of the request for class certification, as it did here, we will not reverse its decision even if we would have ruled differently.”). The party seeking certification has the burden of establishing that the cause of action meets all of the requirements for certification. Goss v. Med. Serv.

Consumer Class Actions: 2. Case Law Interpreting Rule 1.220

A class action complaint must explain the necessity of bringing the action as a class suit; explain the plaintiff’s right to represent the class; allege that the plaintiff brought suit on behalf of himself and all others similarly situated; allege the existence of a class, described with some degree of certainty; allege that members of the class are so numerous as to make it impracticable to bring them all before the court; make it clear that the plaintiff adequately represents the class; and show that the interests of the plaintiff are coextensive with the interests of the other members o

Consumer Class Actions: 4. Rule 1.220(b)—Claims and Defenses Maintainable

a. Prerequisites Under Rule 1.220(b)(1)

In Océ Printing Systems, 760 So. 2d at 1043, the Second District Court of Appeal affirmed the trial court’s certification pursuant to Rule 1.220(b)(1)(A) based on the threat of inconsistent adjudications of individual plaintiffs’ claims. The court held that the Rule does not require a finding that inconsistent adjudications actually occurred, only that they could occur.

Consumer Class Actions: 5. Rule 1.220(c)—Pleading Requirements

Every pleading alleging the existence of a class must include a specific recitation of facts addressing each of the requirements of Rule 1.220(c). Seminole, 920 So. 2d at 822 (holding that the plaintiff’s allegations failed to meet the standard set forth in Rule 1.220(c)); Dade Cnty. Police Benevolent Ass’n, Inc. v. Metro. Dade County, 452 So. 2d 6, 9 (Fla. 3d DCA 1984) (same).

Consumer Class Actions: 6. Rule 1.220(d)—Determination of Class Representation; Notice; Judgment; Claim or Defense Maintained Partly on Behalf of Class

a. Rule 1.220(d)(1). Requirements of Order Granting or Denying Class Certification.

In Sosa, 73 So. 3d at 117–18, the Supreme Court of Florida held that the trial court “render an order on class certification as soon as practicable, with that order separately detailing the trial court’s factual findings and conclusions of law, and, if proceeding with a class, specifically designating the applicable section of rule 1.220.”

Consumer Class Actions: 7. Rule 1.220(e)—Dismissal or Compromise

Under Rule 1.220(e), notice must be provided to the court and to class members before a dismissal or settlement is entered. However, unlike its federal analog, Fed. R. Civ. P. 23(e)(4)(a), the Florida rule does not specifically address a class member’s right to object to the proposed dismissal or settlement. Litvak v. Scylla Props., LLC, 946 So. 2d 1165, 1176 n.13 (Fla. 1st DCA 2006).

Consumer Class Actions: FLORIDA RULES OF CIVIL PROCEDURE

Rule 1.220. Class Actions55

(a) Prerequisites to Class Representation. Before any claim or defense may be maintained on behalf of a class by one party or more suing or being sued as the representative of all the members of a class, the court shall first conclude that:

(1) the members of the class are so numerous that separate joinder of each member is impracticable,

Consumer Class Actions: 1. Comparison of O.C.G.A. § 9-11-23 to Federal Rule of Civil Procedure 23

Georgia enacted a revised class action statute effective July 1, 2003, and applicable to actions filed on or after that date.58 O.C.G.A. § 9-11-23. When enacted, the statute was nearly identical to the Federal Rule 23 at the time. This 2003 enactment brought Georgia textually in line with the class action rules and statutes of most other jurisdictions, although in practice Georgia parties litigated class action issues as if the standardized text had been implemented years before.

Consumer Class Actions: 2. Case Law Interpreting O.C.G.A. § 9-11-23

A plaintiff seeking to represent a class must do more than draft a complaint; instead, he or she must show that the class members have suffered the same injury, which does not mean merely that they have all suffered a violation of the same provision of law. Rite Aid of Ga., Inc. v. Peacock, 726 S.E.2d 577, 579 (citing Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)).

Consumer Class Actions: GEORGIA CLASS ACTION STATUTES

Ga. Code Ann. § 9-11-23. Class actions60

(a) 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;