S T A T E O F N E W Y O R K
________________________________________________________________________
9573
I N A S S E M B L Y
March 17, 2016
___________
Introduced by M. of A. WEINSTEIN -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Judici-
ary
AN ACT to amend the civil practice law and rules, in relation to class
actions
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision b of section 901 of the civil practice law and
rules, as added by chapter 207 of the laws of 1975, is amended to read
as follows:
b. [Unless a statute creating or imposing a penalty, or a minimum
measure of recovery specifically authorizes the recovery thereof in a
class action, an action to recover a penalty, or minimum measure of
recovery created or imposed by statute may not be maintained as a class
action] ONCE THE OTHER PREREQUISITES UNDER SUBDIVISION A OF THIS SECTION
HAVE BEEN SATISFIED, CLASS CERTIFICATION SHALL NOT BE CONSIDERED AN
INFERIOR METHOD FOR FAIR AND EFFICIENT ADJUDICATION ON THE GROUNDS THAT
THE ACTION INVOLVES A GOVERNMENTAL PARTY OR GOVERNMENTAL OPERATIONS.
S 2. Section 902 of the civil practice law and rules, as amended by
chapter 474 of the laws of 1975, is amended to read as follows:
S 902. Order allowing class action[. Within sixty days after the time
to serve a responsive pleading has expired for all persons named as
defendants in an action brought as a class action, the plaintiff shall
move for an order to determine whether it is to be so maintained] AND
APPOINTING CLASS COUNSEL. A. AT AN EARLY PRACTICABLE TIME AFTER A PERSON
SUES OR IS SUED AS A CLASS REPRESENTATIVE, THE COURT MUST DETERMINE BY
ORDER WHETHER TO CERTIFY THE ACTION AS A CLASS ACTION. An order under
this section may be conditional, and may be altered or amended before
the decision on the merits on the court's own motion or on motion of the
parties. The action may be maintained as a class action only if the
court finds that the prerequisites under section 901 have been satis-
fied. Among the matters which the court shall consider in determining
whether the action may proceed as a class action are:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14219-02-6
A. 9573 2
1. the interest of members of the class in individually controlling
the prosecution or defense of separate actions;
2. the impracticability or inefficiency of prosecuting or defending
separate actions;
3. the extent and nature of any litigation concerning the controversy
already commenced by or against members of the class;
4. the desirability or undesirability of concentrating the litigation
of the claim in the particular forum;
5. the difficulties likely to be encountered in the management of a
class action.
B. UNLESS A STATUTE PROVIDES OTHERWISE, THE ORDER PERMITTING A CLASS
ACTION SHALL APPOINT CLASS COUNSEL. IN APPOINTING CLASS COUNSEL, THE
COURT:
1. SHALL CONSIDER:
(I) THE WORK COUNSEL HAS DONE IN IDENTIFYING OR INVESTIGATING POTEN-
TIAL CLAIMS IN THE ACTION;
(II) COUNSEL'S EXPERIENCE IN HANDLING CLASS ACTIONS, OTHER COMPLEX
LITIGATION, AND THE TYPES OF CLAIMS ASSERTED IN THE ACTION;
(III) COUNSEL'S KNOWLEDGE OF THE APPLICABLE LAW; AND
(IV) THE RESOURCES THAT COUNSEL WILL COMMIT TO REPRESENTING THE CLASS;
2. MAY CONSIDER ANY OTHER MATTER PERTINENT TO COUNSEL'S ABILITY TO
FAIRLY AND ADEQUATELY REPRESENT THE INTERESTS OF THE CLASS;
3. MAY ORDER POTENTIAL CLASS COUNSEL TO PROVIDE INFORMATION ON ANY
SUBJECT PERTINENT TO THE APPOINTMENT AND TO PROPOSE TERMS FOR ATTORNEY'S
FEES AND NONTAXABLE COSTS;
4. MAY INCLUDE IN THE APPOINTING ORDER PROVISIONS ABOUT THE AWARD OF
ATTORNEY'S FEES OR NONTAXABLE COSTS UNDER RULE NINE HUNDRED NINE OF THIS
ARTICLE; AND
5. MAY MAKE FURTHER ORDERS IN CONNECTION WITH THE APPOINTMENT.
C. WHEN ONE APPLICANT SEEKS APPOINTMENT AS CLASS COUNSEL, THE COURT
MAY APPOINT THAT APPLICANT ONLY IF THE APPLICANT IS ADEQUATE UNDER
SUBDIVISIONS B AND E OF THIS SECTION. IF MORE THAN ONE ADEQUATE APPLI-
CANT SEEKS APPOINTMENT, THE COURT MUST APPOINT THE BEST APPLICANT ABLE
TO REPRESENT THE INTERESTS OF THE CLASS.
D. THE COURT MAY DESIGNATE INTERIM COUNSEL TO ACT ON BEHALF OF A PUTA-
TIVE CLASS BEFORE DETERMINING WHETHER TO CERTIFY THE ACTION AS A CLASS
ACTION.
E. CLASS COUNSEL MUST FAIRLY AND ADEQUATELY REPRESENT THE INTERESTS OF
THE CLASS.
S 3. Rule 908 of the civil practice law and rules, as added by chapter
207 of the laws of 1975, is amended to read as follows:
Rule 908. Dismissal, discontinuance [or], compromise OR SETTLEMENT.
A class action shall not be dismissed, discontinued, [or] compromised,
OR SETTLED without the approval of the court. [Notice of the proposed
dismissal, discontinuance, or compromise shall be given to all members
of the class in such manner as the court directs.] THE FOLLOWING PROCE-
DURES APPLY TO A PROPOSED DISMISSAL, DISCONTINUANCE, COMPROMISE OR
SETTLEMENT:
A. IN CLASS ACTIONS OTHER THAN THOSE ACTIONS DESCRIBED IN SUBDIVISION
B OF THIS RULE, NOTICE OF THE PROPOSAL NEED NOT BE GIVEN UNLESS THE
COURT FINDS THAT NOTICE IS NECESSARY TO PROTECT THE INTERESTS OF THE
REPRESENTED PARTIES.
B. IN ALL ACTIONS WHERE A CLASS HAS BEEN CERTIFIED AND THE ACTION WAS
NOT BROUGHT PRIMARILY FOR INJUNCTIVE OR DECLARATORY RELIEF, REASONABLE
NOTICE OF THE PROPOSAL SHALL BE GIVEN IN SUCH MANNER AS THE COURT
A. 9573 3
DIRECTS TO ALL CLASS MEMBERS WHO WOULD BE BOUND BY SUCH RESOLUTION OF
THE ACTION.
C. THE CONTENT OF THE NOTICE AND THE EXPENSES OF NOTIFICATION SHALL BE
GOVERNED BY SUBDIVISIONS (C) AND (D) OF SECTION NINE HUNDRED FOUR OF
THIS ARTICLE.
D. IF THE PROPOSAL WOULD BIND CLASS MEMBERS, THE COURT MAY APPROVE IT
ONLY AFTER A HEARING AND ON FINDING THAT IT IS FAIR, REASONABLE, AND
ADEQUATE.
E. THE PARTIES SEEKING APPROVAL MUST FILE A STATEMENT IDENTIFYING ANY
AGREEMENT MADE IN CONNECTION WITH THE PROPOSAL.
F. IF THE CLASS ACTION WAS NOT BROUGHT PRIMARILY FOR INJUNCTIVE OR
DECLARATORY RELIEF, THE COURT MAY REFUSE TO APPROVE A DISMISSAL, DISCON-
TINUANCE, COMPROMISE, OR SETTLEMENT UNLESS IT AFFORDS A NEW OPPORTUNITY
TO REQUEST EXCLUSION FROM THE CLASS TO INDIVIDUAL CLASS MEMBERS WHO HAD
AN EARLIER OPPORTUNITY TO REQUEST EXCLUSION BUT DID NOT DO SO.
G. ANY CLASS MEMBER MAY OBJECT TO THE PROPOSAL IF IT REQUIRES COURT
APPROVAL UNDER THIS RULE; THE OBJECTION MAY BE WITHDRAWN ONLY WITH THE
COURT'S APPROVAL.
S 4. Rule 909 of the civil practice law and rules, as amended by chap-
ter 566 of the laws of 2011, is amended to read as follows:
Rule 909. Attorneys' fees. If a judgment in an action maintained as a
class action is rendered in favor of the class, the court in its
discretion may award attorneys' fees to the representatives of the class
and/or to any other person that the court finds has acted to benefit the
class based on the reasonable value of legal services rendered and if
justice requires AND TO THE EXTENT NOT OTHERWISE LIMITED BY LAW, allow
recovery of the amount awarded from the opponent of the class.
S 5. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.