Eliminates the restriction on class actions involving a penalty or minimum recovery; adds language expressly permitting class actions against governmental entities.
STATE OF NEW YORK
________________________________________________________________________
7113
2023-2024 Regular Sessions
IN SENATE
May 18, 2023
___________
Introduced by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
when printed to be committed to the Committee on Judiciary
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:
1 Section 1. Subdivision b of section 901 of the civil practice law and
2 rules, as added by chapter 207 of the laws of 1975, is amended to read
3 as follows:
4 b. [Unless a statute creating or imposing a penalty, or a minimum
5 measure of recovery specifically authorizes the recovery thereof in a
6 class action, an action to recover a penalty, or minimum measure of
7 recovery created or imposed by statute may not be maintained as a class
8 action] Once the other prerequisites under subdivision a of this section
9 have been satisfied, class certification shall not be considered an
10 inferior method for fair and efficient adjudication on the grounds that
11 the action involves a governmental party or governmental operations.
12 § 2. Section 902 of the civil practice law and rules, as amended by
13 chapter 474 of the laws of 1975, is amended to read as follows:
14 § 902. Order allowing class action[. Within sixty days after the time
15 to serve a responsive pleading has expired for all persons named as
16 defendants in an action brought as a class action, the plaintiff shall
17 move for an order to determine whether it is to be so maintained] and
18 appointing class counsel. a. At an early practicable time after a person
19 sues or is sued as a class representative, the court must determine by
20 order whether to certify the action as a class action. An order under
21 this section may be conditional, and may be altered or amended before
22 the decision on the merits on the court's own motion or on motion of the
23 parties. The action may be maintained as a class action only if the
24 court finds that the prerequisites under section 901 of this article
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11405-01-3
S. 7113 2
1 have been satisfied. Among the matters which the court shall consider in
2 determining whether the action may proceed as a class action are:
3 1. the interest of members of the class in individually controlling
4 the prosecution or defense of separate actions;
5 2. the impracticability or inefficiency of prosecuting or defending
6 separate actions;
7 3. the extent and nature of any litigation concerning the controversy
8 already commenced by or against members of the class;
9 4. the desirability or undesirability of concentrating the litigation
10 of the claim in the particular forum;
11 5. the difficulties likely to be encountered in the management of a
12 class action.
13 b. Unless a statute provides otherwise, the order permitting a class
14 action shall appoint class counsel. In appointing class counsel, the
15 court:
16 1. shall consider:
17 (i) the work counsel has done in identifying or investigating poten-
18 tial claims in the action;
19 (ii) counsel's experience in handling class actions, other complex
20 litigation, and the types of claims asserted in the action;
21 (iii) counsel's knowledge of the applicable law; and
22 (iv) the resources that counsel will commit to representing the class;
23 2. may consider any other matter pertinent to counsel's ability to
24 fairly and adequately represent the interests of the class;
25 3. may order potential class counsel to provide information on any
26 subject pertinent to the appointment and to propose terms for attorneys'
27 fees and nontaxable costs;
28 4. may include in the appointing order provisions about the award of
29 attorneys' fees or nontaxable costs under rule 909 of this article; and
30 5. may make further orders in connection with the appointment.
31 c. When one applicant seeks appointment as class counsel, the court
32 may appoint that applicant only if the applicant is adequate under
33 subdivisions b and e of this section. If more than one adequate appli-
34 cant seeks appointment, the court must appoint the applicant best able
35 to represent the interests of the class.
36 d. The court may designate interim counsel to act on behalf of a puta-
37 tive class before determining whether to certify the action as a class
38 action.
39 e. Class counsel must fairly and adequately represent the interests of
40 the class.
41 § 3. Rule 908 of the civil practice law and rules, as added by chapter
42 207 of the laws of 1975, is amended to read as follows:
43 Rule 908. [Dismissal] Voluntary dismissal, discontinuance [or],
44 compromise or settlement. [A class action] The claims, issues or
45 defenses of a class shall not be voluntarily dismissed, discontinued,
46 [or] compromised, or settled without the approval of the court. [Notice
47 of the proposed dismissal, discontinuance, or compromise shall be given
48 to all members of the class in such manner as the court directs.] The
49 following procedures apply to a proposed voluntary dismissal, discontin-
50 uance, compromise or settlement:
51 a. In class actions where a class has been certified, reasonable
52 notice of the proposal shall be given to the class in such a manner as
53 the court directs to all class members who would be bound by the
54 proposal.
55 b. The court shall direct that notice be given to members of a class
56 or putative class not otherwise entitled to notice under subdivision a
S. 7113 3
1 of this rule where the court finds that such notice is necessary to
2 protect the interest of such members.
3 c. The content of the notice and the expenses of notification shall be
4 governed by subdivisions (c) and (d) of section 904 of this article.
5 d. If the proposal would bind class members, the court may approve it
6 only after a hearing and on finding that it is fair, reasonable, and
7 adequate.
8 e. The parties seeking approval must file a statement identifying any
9 agreement made in connection with the proposal.
10 f. In class actions where notice to the class was given pursuant to
11 subdivision (b) of section 904 of this article, the court, before
12 approving a voluntary dismissal, discontinuance, compromise, or settle-
13 ment of a class action, may direct that notice thereof afford a new
14 opportunity to request exclusion from the class to class members who had
15 an earlier opportunity to request exclusion but did not do so.
16 g. Any class member may object to the proposal if it requires court
17 approval under this rule; the objection may be withdrawn only with the
18 court's approval. Unless approved by the court, no payment or other
19 consideration may be provided to an objector or objector's counsel in
20 connection with (i) foregoing or withdrawing an objection, or (ii) fore-
21 going, dismissing, or abandoning an appeal from a judgment approving the
22 proposal.
23 § 4. Rule 909 of the civil practice law and rules, as amended by chap-
24 ter 566 of the laws of 2011, is amended to read as follows:
25 Rule 909. Attorneys' fees. If a judgment in an action maintained as a
26 class action is rendered in favor of the class, the court in its
27 discretion may award attorneys' fees to the representatives of the class
28 and/or to any other person that the court finds has acted to benefit the
29 class based on the reasonable value of legal services rendered and if
30 justice requires and to the extent not otherwise limited by law, allow
31 recovery of the amount awarded from the opponent of the class.
32 § 5. This act shall take effect on the first of January next succeed-
33 ing the date on which it shall have become a law.
