Nicknamed the "roving justices," the Hughes Court, named after Chief Justice Charles Evans Hughes, was responsible for adopting the Federal Rules of Civil Procedure. (Front row from right to left: Justices Brandeis and Van Devanter, Chief Justice Hughes, and Justices McReynolds and Sutherland; Back row from right to left: Justices Roberts, Butler, Stone, and Cardozo)
(Picture Source: SupremeCourtHistory.org)
Ever since the Federal Rules of Civil Procedure were first adopted in 1938, replacing the Federal Equity Rules, several amendments have been introduced to the rules. Rule 23, as previously stated, governs class-action lawsuits, from appointing class counsel to certifying a class. However, over the years, there has been a number of updates and revisions to Rule 23. In 1966, the first amendment was introduced. This amendment introduced the “opt out” provision. The new rule presumes a potential plaintiff to be part of a class unless they “opted out” of the class action. If they do not opt out, they are bound by the verdict or settlement terms of the class action and potentially precluded from bringing their own individual suit.
Recently, several new amendments have been made. In 2019, Rule 23(c)(2) and Rule 23(e)(2) were amended. Rule 23(c)(2), which governs notice to class members, requires “the best notice [to class members] that is practicable under the circumstances.” The new amendment clarifies that notice can be conveyed by various means including electronically as long as it is "appropriate." Furthermore, the new Rule 23(e)(2), which requires that a court approve a settlement “after a hearing and only on finding that it is fair, reasonable, and adequate,” now lists several criteria for the approval of the proposal.
(B)(1)- "Prejudice Class Action"
If individual actions might create prejudice that a class action suit would avoid, certification under 23(b)(1) requires a “mandatory” class action where absentee members cannot opt out of the class.
(B)(2)- "Injunctive/Declarative Relief Class Action"
This provision is the most commonly invoked of the 23(b) categories, common for claims involving civil rights, employment discrimination, consumer protection, environmental damage, where plaintiffs aim to change a defendant’s conduct rather than seek monetary damages. However, to be within 23(b)(2) the defendant’s conduct must be “generally applicable” to the class.
(B)(3)- "Damages Class Action"
This provision is common in consumer class actions or in a case where the defendant has allegedly injured all the class members in the same way. To qualify, plaintiffs must meet the requirement of ‘predominance” such that the common questions of law or fact predominate over individual differences.
In class actions, fee agreements and disputes are closely bound with settlements. Fees are usually made in the context of a settlement approval hearing required by Rule 23(e). In section (g), after the class appoints class counsel, the court may propose terms for attorney's fees. Furthermore, section (h) states the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties’ agreement.