Revised Rule 23 streamlines class action settlement process.


Byline: Pat Murphy

Amendments to the federal rule on class actions promise to make the settlement process more efficient with the adoption of uniform factors for court approval of agreements and provisions discouraging bothersome "professional objectors," experts say.

The changes to Federal Rule of Civil Procedure 23 went into effect Dec. 1 after adoption by the U.S. Supreme Court earlier in the year along with several other rule changes. In addition to identifying core factors for settlement approval and adding stricter procedures for objectors, the new rule features an express recognition that electronic notice may be an acceptable means of communicating with class members.

Class action lawyer Stuart T. Rossman sees the revised rule as a step in the right direction, a positive for both plaintiffs' lawyers and defense counsel.

"It ensures that everyone has a level playing field and that everyone is playing by the same rules," said Rossman, director of litigation at the National Consumer Law Center in Boston. Rossman testified before the Supreme Court advisory committee that drafted the rule changes.

The updates to Rule 23 to a large degree reflect the best practices already employed by experienced class action attorneys, according to Nicole J. Benjamin, a complex litigation attorney in Providence.

"They don't dramatically change the way we practice," the defense attorney said. "Rather, they codify our existing practice."

Linda Sandstrom Simard, a professor at Suffolk University Law School, likewise views the amendments as simply improving the process for all as opposed to comprehensively overhauling class action practice.

"The amendments will make the procedure for settlements more efficient," she said.


"The rule very clearly defines what the factors are the court should be looking at in evaluating a class action settlement."

Nicole J. Benjamin, Providence


Core standards

The most substantive change to Rule 23 is the identification of the key factors for courts to consider in deciding whether to approve a proposed class action settlement.

Like the old rule, new Rule 23(e)(2) provides that a court may approve a settlement only after finding that it is fair, reasonable and adequate.

However, the new rule specifies core factors for courts to consider in making that determination. Those factors include whether class representatives and class counsel have adequately represented the class, whether the proposal was negotiated...

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