§ Rule 23-I. Class Actions: Procedure for Determining Whether Action May Be Maintained as a Class Action; Procedure for Determining Notice Requirements

Rule 23-I. Class Actions: Procedure for Determining Whether Action May Be Maintained as a Class Action; Procedure for Determining Notice Requirements

(a) Class Action Allegations.In any case sought to be maintained as a class action, the complaint shall contain under a separate heading styled “Class Action Allegations”:

(1) A reference to the portion or portions of Rule 23 under which it is claimed that the suit is properly maintainable as a class action.

(2) Appropriate allegations justifying such claim, including, but not necessarily limited to:

(i) the size (or approximate size) and definition of the alleged class;

(ii) the basis upon which the plaintiff or plaintiffs claim to be adequate representatives of the class, or if the class is comprised of defendants, that those named as parties are adequate representatives of the class;

(iii) the alleged questions of law and fact claimed to be common to the class; and

(iv) in actions claimed to be maintainable as class actions under Rule 23(b)(3), allegations supporting the findings required by that subdivision.

(b) Certification.

(1) Motion. Within 90 days after the filing of a complaint in a case sought to be maintained as a class action, the plaintiff shall move for a certification under Rule 23(c)(1) that the case be maintained as a class action. Such motion shall be supported by a statement of facts which demonstrates that the action meets the requirements for a class action prescribed in Rule 23(a) and (b). With the motion, the plaintiff may file affidavits or other evidence of any or all of the facts stated and may submit that all or certain specified facts are not in genuine dispute.

(2) Opposition. If any party wishes to oppose the request for class action certification, the party shall file within 10 days an opposition to the motion stating the reasons why the action is not properly maintainable as a class action. Such opposition may be supported by a statement of facts disputing any facts alleged in the plaintiff's statement or setting forth other facts relevant to certification of the action as a class action, and the opponent may submit affidavits or other evidence of the facts contained in the opponent's statement. In determining any motion for certification, the Court may assume that the facts as claimed by the plaintiff are admitted to exist without controversy except as and to the extent that such facts are asserted to be actually in good faith controverted in a statement filed in opposition to the motion.

(3) Action by the Court.Whether or not the motion to certify is opposed, the Court shall promptly act upon the motion. If any party has requested an opportunity to be heard on the motion or upon its own initiative, the Court may schedule a hearing thereon. The Court may allow the action to be so maintained, may deny the motion, or may order that a ruling be postponed pending discovery or such other preliminary procedures as appear appropriate and necessary in the circumstances. Nothing in this section shall be construed to preclude a motion by a defendant at any time to strike the class action allegations or to dismiss the complaint.

(1) Plaintiff's Statement. In an action maintained under Rule 23(b)(3), the plaintiff shall include in the plaintiff's motion for certification a statement proposing (1) how, when, by whom, and to whom the notice required by Rule 23(c)(2) shall be given, (2) how and by whom payment therefor is to be made, and (3) by whom the response to the notice is to be received. In lieu of such a statement the plaintiff may state reasons why a determination of these matters cannot then be made and offer a proposal as to when such a determination should be made. The plaintiff may file with the motion affidavits or other evidence of any or all of the facts stated or may submit that all or certain specified facts are not in genuine dispute.

(2) Opposition. If any party wishes to oppose the plaintiff's proposal for notice of the reasons stated for postponing a determination of the notice requirement, the party shall file an opposition containing a contrary proposal for compliance with the notice requirements of Rule 23(c)(2). Such opposition shall be combined with any opposition to the certification motion and may be supported by a statement of facts disputing any facts alleged in plaintiff's statement or setting forth other facts which are inconsistent with plaintiff's notice proposal or which support the opposing notice proposal. Such party may submit affidavits or other evidence of any and all facts contained in the party's statement.

(3) Action by the Court. Upon consideration of the statements and accompanying material, if any, the court may set the matter of notice for hearing at which time the court may require the claimant upon adequate notice to make out a prima facie case on the merits of the claim. The court may, either with or without a hearing, postpone the notice determination until after the parties have had an opportunity for discovery, which the court may limit to those matters relevant to the notice determination, or until such other time as may be just. As soon as practicable, the court shall determine how, when, by whom, and to whom the notice shall be given, how and by whom payment therefor is to be made, and by whom the response to the notice is to be received.

(4) Other Notices. The court may follow these procedures for any notice under Rule 23(d)(2).

(d) Applicability to Counterclaims and Cross-Claims.The foregoing provisions shall apply, with appropriate adaptations, to any counterclaim or crossclaim alleged to be brought for or against a class.