Skip to main content

Search

Consumer Class Actions: 12. Settlement (Compromise)

When determining whether a class action settlement is fair, reasonable, and adequate, the court must consider (1) the existence of fraud or collusion behind the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings; (4) the probability of the plaintiff’s success on the merits; (5) the range of possible recovery; (6) the opinions of class counsel, class representatives and absent class members. Bachman, 344 S.W.3d 260, 266 (Mo. Ct. App. 2011) (citing Ring, 41 S.W.3d at 492).

Consumer Class Actions: Conclusion

Missouri courts will apply a thorough analysis of the various prerequisites to class certification contained in Missouri Supreme Court Rule 52.08, which is substantially similar to Federal Rule 23155. However, Missouri law holds that the issue of predominance is satisfied if there is only one common issue of fact or law which is central to the case, a standard which is more liberal than most states. Classes have also been certified under Missouri’s consumer protection statute, which has been broadly interpreted.

Consumer Class Actions: MISSOURI SUPREME COURT RULES

Rule 52.08. Class Actions156

(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,

Consumer Class Actions: 1. Comparison of Mont. R. Civ. P. 23 to Fed. R. Civ. P. 23

On April 26, 2011, the Montana legislature revised Rule 23 of the Montana Rules of Civil Procedure to more closely conform to its federal counterpart.157 The rules are largely identical. Section (a) of Montana’s Rule 23 is identical to the federal rule and the two contain the same four class action prerequisites. Chipman v. N.W. Healthcare Corp., 288 P.3d 193, 205 (Mont. 2012).

Consumer Class Actions: 2. Case Law Interpreting Mont. R. Civ. P. 23

Class actions are the exception to the usual rule that litigation is conducted by and on behalf of individually-named parties only. Sangwin v. State, 315 P.3d 279, 283 (Mont. 2013). To be certified for a class action under Montana law, a class must meet the relevant requirements of Rules 23(a) and 23(b) of the Montana Rules of Civil Procedure. “Once Rule 23(a) is satisfied a [court] must then determine whether the class action conforms to the type of class actions available pursuant to Rule 23(b).” Roose v. Lincoln Cty. Employee Group Health Plan, 362 P.3d 40, 43 (Mont.

Consumer Class Actions: MONTANA RULES OF CIVIL PROCEDURE

Rule 23. Class Actions158

(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: 1. Comparison with Rule 23 of the Federal Rules of Civil Procedure

Nebraska has no analogue to Rule 23 of the Federal Rules of Civil Procedure as it remains one of the few states that continue to employ the procedural statutes based on the Field Code of 1849.159 Neb. Rev. Stat. 25-319 is a broad provision authorizing the use of class actions. Obstetricians-Gynecologists, P.C. v. Blue Cross & Blue Shield of Nebraska, 219 Neb. 199, 208, 361 N.W.2d 550, 556 (Neb. 1985).

Consumer Class Actions: F.1 Introduction

The three items in this appendix—the Sample Retainer Agreement, Named Plaintiff’s Duties to the Class, and Sample Co-Counsel Agreement—are available in Word format with the digital version of this treatise, under “Practice Tools.”

Consumer Class Actions: F.4 Sample Co-Counsel Agreement

CO-COUNSEL AGREEMENT

This co-counseling arrangement is between the firms of ______________________ and ______________________ (collectively referred to as “Counsel”) relating to a proposed case or cases to be brought, individually and on behalf of a class of persons who ____________________________________________________. The case or cases will be brought against ___________________________ and such entities as may also may be responsible for the misconduct sought to be redressed in the case.

I. General Cooperation and Terms

Consumer Class Actions: Introduction

This appendix reprints 28 U.S.C. §§ 1332(d), 1453, and 1711–1715, all of which were added by the Class Action Fairness Act of 2005 (CAFA), Pub. L. No. 109-2, 119 Stat. 4 (Feb. 18, 2005). Also reprinted are 28 U.S.C. §§ 1332(c), 1391, 1404, and 1446. At the appendix’s end, there is a reprint of CAFA’s findings and purposes.

Consumer Class Actions: 2. 2020 Developments

There is one 2020 case involving a class action in Nebraska, Lassalle v. State, 307 Neb. 221, 948 N.W.2d. 725 (Neb. 2020). This class action involved a group of Department of Health and Human Services (“DHHS”) employees that brought a wage dispute against the State. Id. Lassalle, a DHHS employee, sought to take and be paid for leave hours in addition to working a full eighty hours in a pay period several times between 2016 and 2019. Id. Lassalle sought class certification and the State moved for summary judgment. Id.

Consumer Class Actions: NEBRASKA CLASS ACTION STATUTES

Neb. Rev. St. § 25-319. Class actions; representation160

When the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.

Neb. Rev. St. § 25-319.01. Class action litigation; unpaid residue; payment by defendant161

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

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).

Consumer Class Actions: 2. 2019 Amendments

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.

Consumer Class Actions: 3. Interpretive Case Law

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)).

Consumer Class Actions: 4. Appellate Review

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.

Consumer Class Actions: NEVADA RULES OF CIVIL PROCEDURE

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;

Consumer Class Actions: 1. Superior Court Rule 16 Is Similar in Most Regards to Rule 23 of the Federal Rules of Civil Procedure

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.

Consumer Class Actions: 2. In Its First Look at Rule 16, New Hampshire’s Highest Court Adopted the Rigorous Analysis Standard

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.