Robert L. Byer and Karin J. Kysilka*
On August 15, 1996, the Advisory Committee on Civil Rules published
proposed amendments to Fed. R. Civ. P. 23, class actions. After
years of discussion and seminars, the Committee has created a proposal
far less dramatic than the initial project, but one which will still
noticeably affect the adjudication and settlement of class action
The process began in 1986 with a proposal for broad changes from
the American Bar Association, which the Rules Committee had originally
planned to publish in 1993. Sweeping changes in Rules 4,11, and
26 that year postponed the release. Now, after further study and
discussion with class action lawyers, the proposals have entered
the comment period, which will last until February 15, 1997. During
this time, the Committee will hold three hearings, with at least
one in the eastern United States and one in the western United States.
The proposed amendments focus on three key areas: promoting judicial
efficiency; preventing abuse and providing fairness to members of
the class; and making it easier to certify classes in appropriate
mass tort cases.
The majority of changes to Rule 23 will promote judicial efficiency.
They will do so by reducing judicial error and increasing consistency
within the court system. The amended criteria for finding common
questions of law or fact, for example, include considering the practical
ability of class members to proceed without certification, 23(b)(3)(A),
and the maturity of related litigation involving class members,
One of the key ways in which the new rule will promote judicial
efficiency is by explicitly allowing for a settlement class, (b)(4).
The Circuits are now divided on whether it is proper to certify
a class for settlement purposes if it does not meet the (b)(3) requirements.
The proposal would allow such settlement classes. The courts may
certify such a class if parties who have already reached a settlement
request one. Certification under proposed new rule 23(b)(4) still
requires predominance and superiority and notice as well as the
prerequisites of 23(a), but it does not mandate evaluating concerns
such as choice-of-law which would be necessary at trial. Not only
will eliminating inconsistencies among the Circuits promote efficiency,
but allowing settlement classes with reduced requirements will also
have the potential to resolve claims which would have otherwise
been dismissed or litigated separately.
The proposed changes also promote efficiency by reducing the opportunity
for judicial error. For example, proposed new rule 23(f) would provide
for a discretionary appeal of an order granting or denying certification
if the aggrieved party makes an application within ten days after
the court enters the order. This appeal does not stay proceedings
in the district court (unless the district judge or the appeals
court so orders), but it does give the system an opportunity to
correct a certification error before wasting resources on prolonged
litigation or forcing parties into an unwarranted settlement posture.
Similarly, proposed new rule 23(c) would now direct a court to
decide class certification "when practicable" after the
litigation commences. Under the current rule, the courts are to
make such a determination "as soon as practicable." The
difference has grown out of the de facto practices in many jurisdictions.
An early certification requirement, the Advisory Committee notes,
might unwisely shortchange inquiries into the desirability of class
litigation. This change also allows for the practice of ruling on
certain motions prior to certification. If the case will be dismissed
on summary judgment, for example, regardless of certification as
a class action, then the inquiry under 23(b) is an inefficient exercise.
Preventing Abuse and Providing Fairness
to Class Members
Aside from efficiency concerns, one of the most frequent criticisms
of class action litigation is that the true winners are lawyers,
not the members of the class. Consequently, the amended rule would
have courts consider both the practical ability of class members
to pursue individual litigation as well as their interest in doing
so, proposed new rule 23(b)(3)(B), and it would have the courts
weigh the burdens of litigation against the realistic hope of recovery,
proposed new rule 23(b)(3)(F). Ideally, this new focus will stop
the pursuit of litigation that takes more out of the parties, plaintiffs
and defendants alike, then plaintiffs can recover. By mandating
a cost/benefit analysis, proposed rule 23(b)(3)(F) will prevent
the certification of classes which provide greater benefit to plaintiffs'
counsel than to class members. New rule 23(b)(3)(F) specifically
requires courts to consider, "whether the probable relief to
individual class members justifies the costs and burdens of class
Similarly, the Advisory Committee encourages defining classes narrowly
so as to avoid dragging in members whose claims could support individual
litigation. By definition, individual concerns are lost in the crowd
of class actions. Sharing a mass settlement or mass award with other
members whose claims cannot support individual litigation may not
do justice to these individual complaints.
Additionally, the maturity of related litigation is crucial. Practitioners
have advised allowing some individual cases to go to trial in mass
tort litigation before seeking certification because premature certification
is subject to incomplete information on the scope of damages. The
new rule would allow for such considerations.
Under proposed new rule 23(b)(4), the Committee offers additional
protection for class members. As in (b)(3) actions, members must
receive notice and have the right to opt out of the settlement.
The courts would also not be able to approve a dismissal or compromise
without a hearing, proposed rule 23(e). Such a hearing may not occur
until the class members have received notice, and the Committee
encourages judicial attention to ensure such notices are clear.
Again, the rule attempts to guarantee that litigants, either as
individuals or class members, do not suffer because of the existence
of a class action suit.
Class Actions and Mass Torts
In addition to promoting equity and efficiency concerns, the proposed
amendments to Rule 23(b)(3) legitimize for the first time a role
for class actions in mass torts. In the original Advisory Committee
comments to Rule 23(b)(3) in 1966, the Committee specifically warned
against using class actions for "mass accident" litigation
because of the likelihood of individualized questions as to damages,
liability, and defenses of liability. In the current proposals,
the Committee notes that it made changes with an eye towards the
potential impact on the aggregation of tort claims. The Committee
debated, then declined, to suggest broader changes to specifically
address problems of mass tort litigation. As the legal profession
further develops the practice of class action torts, such changes
will not be far behind.
On the whole, the proposed changes to Rule 23 reflect the reality
of class action litigation. The legal profession has put the Rule
to uses the original drafters did not envision and did not intend.
As a practical matter, judges have had to adapt portions of the
Rule to make it workable. The proposed changes reflect these adaptations.
As an equitable matter, high publicity class action suits sometimes
degenerate into ends in and of themselves instead of means to a
superior resolution for individual class members. The proposed changes
attempt to address those concerns as well.
The proposed amendments to Rule 23 are available from the Rules
Committee Support Office in Washington D.C. at (202) 273-1824 or
from the internet at http://www.uscourts.gov. They also will be
published in the West advance sheets.
*Robert L. Byer is a partner at Kirkpatrick and Lockhart, LLP,
a former Judge of the Commonwealth Court of Pennsylvania, and a
member of the National Practitioners Advisory Council of the Federalist
Karin J. Kysilka is a second-year student at Harvard Law School,
a member of the student chapter of the Federalist Society at Harvard,
and a member of the Journal of Law and Public Policy.