State and Foreign Class-Action Rules and Statutes: Differences from - and Lessons For? - Federal Rule 23

This article looks at significant differences between Federal Rule of Civil Procedure 23 on class actions and the class-action rules or statutes of some states and foreign nations. A large number of American states have class-action rules based on and often identical with Federal Rule 23, at least in its 1966 version before amendments of the last ten years. But important variations exist and might provide a source of ideas for revisions of the federal rule and other state rules. Three of the most noteworthy are: First, a few states do not have the typicality requirement of Federal Rule 23(a)(3). Second and more significantly, several states and foreign jurisdictions do not apply the requirement of Federal Rule 23(b)(3) that common issues predominate over individual ones with the zeal of some federal courts, or lack the requirement to begin with. Third, in a considerable variety of ways several states water down the rigorous requirement of Federal Rule 23(c)(2)(B) that for Rule 23(b)(3) common-question class actions "the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort."