Five Points to Know about the December 2018 Amendments to Rule 23

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On December 1, 2018, the amendments to Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”), which governs class actions, went into effect.  The amendments codify certain procedures the courts have been requiring or permitting over the last 15 years in class actions.  Below are five important takeaways from the Rule 23 amendments:

  1. Before directing notice to a certified or not-yet-certified class, the parties’ submissions must demonstrate that the court will likely: (1) be able to approve the settlement after a final hearing; and (2) be able to certify the class for purposes of judgment on the proposal. 

  2. The amendments establish a standard set of factors to assess the fairness, reasonableness, and adequacy of a proposed settlement.  These enumerated factors are not designed to displace the various analyses used in each circuit, but instead are intended to bring focus to the most germane factors.

  3. The notice sent to members of a class certified for purposes of settlement should be the same as notice sent to members of a class that is certified by the Court in a litigated context. 

  4. Email is now an expressly approved method for delivering notice to members of the class.  However, no single delivery method of notice is preferred, leaving it to the court’s discretion to select the appropriate means (or combination of means) most likely to be effective in a particular case.  As such, the parties may wish to advocate for their preferred method of service when seeking approval of notice.

  5. Objections (and appeals) now can be withdrawn without court approval, unless a payment or other consideration is “associated with” the withdrawal.  The purpose of this amendment is to tackle objections and threats of appeal advanced for personal gain, as opposed to those advanced to assist the settlement-review process.

Moreover, notes to the amendments emphasize that notices be in “plain, easily understood language,” and that the “means, format, and content” of a notice appropriate for one group may not be appropriate for another.  Parties should be prepared to address concerns over classes with members whose first language may not be English, or who may have other impediments to comprehending (or even seeing) typical notices.