S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8034
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 30, 2019
                                ___________
 
 Introduced  by  M.  of A. DINOWITZ -- (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.
   §  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:
   § 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  OF  THIS  ARTICLE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11589-02-9

 A. 8034                             2
 
 have been satisfied. Among the matters which the court shall consider in
 determining whether the action may proceed as a class action are:
   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 ATTORNEYS'
 FEES AND NONTAXABLE COSTS;
   4. MAY INCLUDE IN THE APPOINTING ORDER PROVISIONS ABOUT THE  AWARD  OF
 ATTORNEYS' FEES OR NONTAXABLE COSTS UNDER RULE 909 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 APPLICANT  BEST  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.
   § 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]  VOLUNTARY  DISMISSAL,  discontinuance  [or],
 compromise  OR  SETTLEMENT.    [A  class  action]  THE CLAIMS, ISSUES OR
 DEFENSES OF A CLASS shall not be  VOLUNTARILY  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 PROCEDURES APPLY TO A PROPOSED VOLUNTARY DISMISSAL, DISCONTIN-
 UANCE, COMPROMISE OR SETTLEMENT:
   A.  IN  CLASS  ACTIONS  WHERE  A  CLASS HAS BEEN CERTIFIED, REASONABLE
 NOTICE OF THE PROPOSAL SHALL BE GIVEN TO THE CLASS IN SUCH A  MANNER  AS
 THE  COURT  DIRECTS  TO  ALL  CLASS  MEMBERS  WHO  WOULD BE BOUND BY THE
 PROPOSAL.
   B. THE COURT SHALL DIRECT THAT NOTICE BE GIVEN TO MEMBERS OF  A  CLASS
 OR  PUTATIVE  CLASS NOT OTHERWISE ENTITLED TO NOTICE UNDER SUBDIVISION A

 A. 8034                             3
 
 OF THIS RULE WHERE THE COURT FINDS THAT  SUCH  NOTICE  IS  NECESSARY  TO
 PROTECT THE INTEREST OF SUCH MEMBERS.
   C. THE CONTENT OF THE NOTICE AND THE EXPENSES OF NOTIFICATION SHALL BE
 GOVERNED BY SUBDIVISIONS (C) AND (D) OF SECTION 904 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. IN CLASS ACTIONS WHERE NOTICE TO THE CLASS WAS  GIVEN  PURSUANT  TO
 SUBDIVISION  (B)  OF  SECTION  904  OF  THIS  ARTICLE, THE COURT, BEFORE
 APPROVING A VOLUNTARY DISMISSAL, DISCONTINUANCE, COMPROMISE, OR  SETTLE-
 MENT  OF  A  CLASS  ACTION,  MAY DIRECT THAT NOTICE THEREOF AFFORD A NEW
 OPPORTUNITY TO REQUEST EXCLUSION FROM THE CLASS TO 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.  UNLESS APPROVED BY THE COURT,  NO  PAYMENT  OR  OTHER
 CONSIDERATION  MAY  BE  PROVIDED TO AN OBJECTOR OR OBJECTOR'S COUNSEL IN
 CONNECTION WITH (I) FOREGOING OR WITHDRAWING AN OBJECTION, OR (II) FORE-
 GOING, DISMISSING, OR ABANDONING AN APPEAL FROM A JUDGMENT APPROVING THE
 PROPOSAL.
   § 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.
   § 5. This act shall take effect on the first of January next  succeed-
 ing the date on which it shall have become a law.