NY State Senate Bill 2019-S6334A

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Dec 28, 2020	committed to rules
Feb 13, 2020	advanced to third reading
Feb 12, 2020	2nd report cal.
Feb 11, 2020	1st report cal.404
Jan 08, 2020	referred to judiciary
Jun 07, 2019	print number 6334a
Jun 07, 2019	amend and recommit to rules
Jun 05, 2019	referred to rules

Votes

- Feb 11, 2020 - Judiciary Committee Vote
  S6334A
  
  15
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Judiciary Committee Vote: Feb 11, 2020
      
      aye (15)
      
      Bailey
      
      Boyle
      
      Breslin
      
      Gounardes
      
      Hoylman-Sigal
      
      Kaplan
      
      LaValle
      
      Lanza
      
      Myrie
      
      O'Mara
      
      Ranzenhofer
      
      Savino
      
      Sepúlveda
      
      Stavisky
      
      Thomas

Bill Amendments

Original

A (Active)

2019-S6334 - Details

See Assembly Version of this Bill:: A8034
Current Committee:: Senate Rules
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §§901 & 902, RR908 & 909, CPLR

2019-S6334 - Summary

Addresses prerequisites to a class action; an order allowing class action and appointing class counsel; the voluntary dismissal, discontinuance, compromise or settlement of a class action and attorneys' fees.

2019-S6334 - Sponsor Memo

                                
 
BILL NUMBER: S6334

SPONSOR: HOYLMAN
 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to class actions

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation if his Advisory
Committee on Civil Practice.

We are advised that our Committee has reviewed and supports, with
modification, the proposal of the New York City Bar Association to more
closely align New York law governing class actions in CPLR article 9
with the provisions of Rule 23 of the Federal Rules of Civil Procedure,
which were enacted in 2003. Earlier versions of the Federal rule adopted
innovations developed in New York's law. But the State procedures were
last revised in 1975 and should be amended to reflect the significant
improvements to the administration of class actions now available to
litigants in Federal courts but not in New York's courts.

This measure includes the amendments described below.

4901(b)

The measure would: (1) eliminate the restriction on class actions
involving a penalty or minimum recovery, and (2) add language expressly
permitting class actions against governmental entities.

First, under current law, where a statute imposes a penalty or minimum
amount of recovery, New York authorizes a class action only if the stat-
ute expressly permits a party to file such a lawsuit. This approach
simply results in attempts to evade the section 901 restriction and
prompts unnecessary litigation about the meaning of and possible waiver
of many statutes' penalty or minimum recovery provisions. Equally impor-
tant, the rule does not apply in Federal courts in New York, which
results in State-Federal forum shopping. The measure would delete this
language.

Second, although State common law once limited class actions against
governmental entities, the so-called "government operations rule," court
decisions have since eroded this rule. The measure would authorize class
actions against governmental entities where all the prerequisites to
class certification under section 901(a) are otherwise met.

§ 902

The measure would: (1) eliminate the fixed deadline to move for class
certification, and (2) direct appointment of counsel in the class
certification order.

Current law requires that a party move for class certification within 60
days of the last responsive pleading. In some actions, whether certif-
ication of one or more classes is appropriate under section 901(a)
cannot be determined until after limited discovery. The measure would
replace the current fixed 60-day deadline, which sometimes results in
pro forma certification motions, with a requirement that a party move at
a practicable time. The amendment would improve the ability of the
parties to craft and a court, where appropriate, to certify class defi-

nitions. This new subdivision matches the language of Federal Rule
23(c)(1).

Article 9 currently lacks substantive criteria and procedures for the
selection of class counsel. This measure would adopt (with appropriate
cross-references within Article 9) the language of Federal Rule 23(g),
which identifies explicit factors for a court to consider when assessing
the ability of proposed counsel to represent the class(es), including
counsel's experience, the resources for litigating the action, and know-
ledge of the relevant area(s) of law.  Additionally, the measure would
require a court to appoint class counsel when it first certifies the
class(es).

§908

Section 908 would be amended to address two concerns in the context of
prejudgment termination of an action.

First, under current law, a class action may not be dismissed, discon-
tinued or compromised without both court approval and notice to the
class or a prospective class where one has not been certified yet.
However, notice can be burdensome and expensive without any correspond-
ing benefit. The measure would eliminate the mandatory provision of
notice and authorize a court to exercise its discretion to direct notice
where appropriate to protect the interests of the class or putative
class. The amended section 908 would track the comparable language of
Federal Rule 23(e), but would retain the existing requirement for judi-
cial approval.

Second, the section would be expanded to include settlement of an
action.

§ 909

We recommend an amendment to the section governing attorney's fees to
prevent any statutory conflict about the basis for a fee award and the
standard that governs when the fees are to be paid by a defendant.

The Legislature has authorized fee awards in actions for particular
types of claims or defendants. For example, in CPLR 8601(a), the Equal
Access to Justice Act adopted in 1990, the Legislature authorized a
court to award attorney's fees in actions against the State, but no fees
may be awarded if the position of the State was "substantially justi-
fied" or where "special circumstances make an award of fees unjust."

The proposed addition of the phrase "to the extent not otherwise limited
by law" would direct that, where a specific statute authorizes a fee
award to be paid by a defendant, the standards of that more specific
statute govern eligibility for and the amount of any fee award, rather
than the general fee provision of section 909. Compare Cobell v. Norton,
407 F. Supp. 2d 140, 148-89 (D.D.C. 2005)(analyzing fee award and
substantial justification under federal EAJA in class action).

Our Committee asks that we extend its appreciation and gratitude to the
State Courts of Superior Jurisdiction Committee, Council on Judicial
Administration and Litigation Committee on Class Actions in the New York
Courts of the New York City Bar Association for proposing this legis-
lation.
This measure would take effect on the first day of January next succeed-
ing the date on which it shall have become a law.

 
2017-18 LEGISLATIVE HISTORY:

OCA 2017-61

2016 LEGISLATIVE HISTORY:

CA 2016-88 Assembly 9573 (M. of A. Weinstein)  
ORDERED TO 3RD RDG.,
RULES CAL. 292 OCA 2019-63

2019-S6334 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6334
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               June 5, 2019
                                ___________
 
 Introduced  by Sen. HOYLMAN -- (at request of the Office of Court Admin-
   istration) -- read twice and ordered printed, and when printed  to  be
   committed to the Committee on Rules
 
 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.

                                                            LBD11589-01-9

 S. 6334                             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 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 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.

 S. 6334                             3
 
   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
 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 NINE HUNDRED FOUR OF THIS ARTICLE, THE COURT,
 BEFORE  APPROVING  A VOLUNTARY DISMISSAL, DISCONTINUANCE, COMPROMISE, OR
 SETTLEMENT 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.

2019-S6334A (ACTIVE) - Details

See Assembly Version of this Bill:: A8034
Current Committee:: Senate Rules
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §§901 & 902, RR908 & 909, CPLR

2019-S6334A (ACTIVE) - Summary

2019-S6334A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S6334A

SPONSOR: HOYLMAN
 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to class actions

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation if his Advisory
Committee on Civil Practice.

We are advised that our Committee has reviewed and supports, with
modification, the proposal of the New York City Bar Association to more
closely align New York law governing class actions in CPLR article 9
with the provisions of Rule 23 of the Federal Rules of Civil Procedure,
which were enacted in 2003. Earlier versions of the Federal rule adopted
innovations developed in New York's law. But the State procedures were
last revised in 1975 and should be amended to reflect the significant
improvements to the administration of class actions now available to
litigants in Federal courts but not in New York's courts.

This measure includes the amendments described below.

8901(b)

The measure would: (1) eliminate the restriction on class actions
involving a penalty or minimum recovery, and (2) add language expressly
permitting class actions against governmental entities.

First, under current law, where a statute imposes a penalty or minimum
amount of recovery, New York authorizes a class action only if the stat-
ute expressly permits a party to file such a lawsuit. This approach
simply results in attempts to evade the section 901 restriction and
prompts unnecessary litigation about the meaning of and possible waiver
of many statutes' penalty or minimum recovery provisions. Equally impor-
tant, the rule does not apply in Federal courts in New York, which
results in State-Federal forum shopping.  The measure would delete this
language.

Second, although State common law once limited class actions against
governmental entities, the so-called "government operations rule," court
decisions have since eroded this rule. The measure would authorize class
actions against governmental entities where all the prerequisites to
class certification under section 901(a) are otherwise met.

8902

The measure would: (1) eliminate the fixed deadline to move for class
certification, and (2) direct appointment of counsel in the class
certification order.

Current law requires that a party move for class certification within 60
days of the last responsive pleading. In some actions, whether certif-
ication of one or more classes is appropriate under section 901(a)
cannot be determined until after limited discovery. The measure would
replace the current fixed 60-day deadline, which sometimes results in
pro forma certification motions, with a requirement that a party move at
a practicable time. The amendment would improve the ability of the
parties to craft and a court, where appropriate, to certify class defi-

nitions. This new subdivision matches the language of Federal Rule
23(c)(1).

Article 9 currently lacks substantive criteria and procedures for the
selection of class counsel. This measure would adopt (with appropriate
cross-references within Article 9) the language of Federal Rule 23(g),
which identifies explicit factors for a court to consider when assessing
the ability of proposed counsel to represent the class(es), including
counsel's experience, the resources for litigating the action, and know-
ledge of the relevant area(s) of law.  Additionally, the measure would
require a court to appoint class counsel when it first certifies the
class(es).

8908

Section 908 would be amended to address two concerns in the context of
prejudgment termination of an action.

First, under current law, a class action may not be dismissed, discon-
tinued or compromised without both court approval and notice to the
class or a prospective class where one has not been certified yet.
However, notice can be burdensome and expensive without any correspond-
ing benefit. The measure would eliminate the mandatory provision of
notice and authorize a court to exercise its discretion to direct notice
where appropriate to protect the interests of the class or putative
class. The amended section 908 would track the comparable language of
Federal Rule 23(e), but would retain the existing requirement for judi-
cial approval.

Second, the section would be expanded to include settlement of an
action.

8909

We recommend an amendment to the section governing attorney's fees to
prevent any statutory conflict about the basis for a fee award and the
standard that governs when the fees are to be paid by a defendant.

The Legislature has authorized fee awards in actions for particular
types of claims or defendants. For example, in CPLR 8601(a), the Equal
Access to Justice Act adopted in 1990, the Legislature authorized a
court to award attorney's fees in actions against the State, but no fees
may be awarded if the position of the State was "substantially justi-
fied" or where "special circumstances make an award of fees unjust."

The proposed addition of the phrase "to the extent not otherwise limited
by law" would direct that, where a specific statute authorizes a fee
award to be paid by a defendant, the standards of that more specific
statute govern eligibility for and the amount of any fee award, rather
than the general fee provision of section 909.  Compare Cobell v.
Norton, 407 F. Supp. 2d 140, 148-89 (D.D.C. 2005) (analyzing fee award
and substantial justification under federal EAJA in class action).

Our Committee asks that we extend its appreciation and gratitude to the
State Courts of Superior Jurisdiction Committee, Council on Judicial
Administration and Litigation Committee on Class Actions in the New York
Courts of the New York City Bar Association for proposing this legis-
lation.
This measure would take effect on the first day of January next succeed-
ing the date on which it shall have become a law.

 
2017-18 LEGISLATIVE HISTORY:

OCA 2017-61

 
2016 LEGISLATIVE HISTORY:

OCA 2016-88
Assembly 9573 (M. of A. Weinstein) (ordered to 3rd Rdg., Rules Cal. 292)

2019-S6334A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6334--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               June 5, 2019
                                ___________
 
 Introduced  by Sen. HOYLMAN -- (at request of the Office of Court Admin-
   istration) -- read twice and ordered printed, and when printed  to  be
   committed  to  the  Committee  on  Rules -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee

 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11589-03-9

 S. 6334--A                          2
 
 parties.  The  action  may  be  maintained as a class action only if the
 court finds that the prerequisites under section  901  OF  THIS  ARTICLE
 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.

 S. 6334--A                          3
 
   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
 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.

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Senate Bill S6334A

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

Feb 11, 2020 - Judiciary Committee Vote

Judiciary Committee Vote: Feb 11, 2020

Bill Amendments

2019-S6334 - Details

2019-S6334 - Summary

2019-S6334 - Sponsor Memo

2019-S6334 - Bill Text download pdf

2019-S6334A (ACTIVE) - Details

2019-S6334A (ACTIVE) - Summary

2019-S6334A (ACTIVE) - Sponsor Memo

2019-S6334A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S6334A

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Sponsored By

Brad Hoylman-Sigal

Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

2019-S6334 - Details

2019-S6334 - Summary

2019-S6334 - Sponsor Memo

2019-S6334 - Bill Text download pdf

2019-S6334A (ACTIVE) - Details

2019-S6334A (ACTIVE) - Summary

2019-S6334A (ACTIVE) - Sponsor Memo

2019-S6334A (ACTIVE) - Bill Text download pdf

Comments