August 01, 2018 Articles

Class Action Settlements: Navigating the New Rule 23 Amendments

By Hon. George H. King (Ret.) and Hon. Jay C. Gandhi (Ret.)

The class action settlement approval process is changing course come December 1, 2018. New amendments to Federal Rule of Civil Procedure 23 effect at least three chief changes. Counsel would be wise to take heed and plan ahead—if they desire court approval without too many detours.

Frontloading Proof
First, counsel sometimes viewed preliminary approval as pro forma, citing platitudes for granting preliminary approval and urging the court to refrain from a “deep dive” until the final approval hearing. No longer. As the Advisory Committee on Civil Rules noted, “[t]he decision to give notice of a proposed settlement to the class is an important event” and “[i]t should be based on a solid record supporting the conclusion that the proposed settlement will likely earn final approval after notice and an opportunity to object.” See Report of the Advisory Committee on Civil Rules (May 18, 2018).

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