June 23, 2017

Do We Really Need Two Rounds of Largely Duplicative Briefing?

Adam Polk – October 24, 2016

Rule 23 of the Federal Rules of Civil Procedure turns 50 this year. Courts and practitioners have had five decades to familiarize themselves with class action procedure and the familiar “class action two-step” settlement approval choreography, with a preliminary approval motion followed by a final approval motion and attendant briefing. Although Rule 23 has never mandated a “motion for preliminary approval,” federal rule makers are about to change that. Amendments approved for publication by the Standing Committee in June would expressly provide (for the first time) for a preliminary review of settlements and specify the information the settling parties will be required to provide to the court at the preliminary review stage. Rule makers refer to the delivery of information to the court at the preliminary review stage as “frontloading.”

Even though class actions are no longer the novelty they once were, class action settlements are still being presented to courts in the same way today as they have been for the past 50 years—through two, often repetitive and overlapping rounds of briefing. In light of the proposed “frontloading” rule changes and the civil rules committee’s encouragement of pilot projects to test whether changes in the rules would advance civil practice, the time has come for courts to consider, in appropriate cases, a streamlined approach to the class action settlement approval process. The proposal is for the proponents of the settlement, almost invariably the class plaintiffs, to skip the traditional first round of briefing in support of preliminary approval and to cut to the chase by filing their motion for final approval at the outset. The final approval motion would be supported by all of the evidence on which the class plaintiffs intend to rely for final approval.

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