The December 2018 revisions to Rule 23 are relatively minor, and early cases applying the amended rule confirm that no major changes have occurred. The Southern District of Iowa summed up the theme in Swinton v. SquareTrade, Inc.: The amendments are “mostly form over substance” and “largely [a] codif[ication of] existing case law” that are useful primarily to “focus the Court’s analysis.”
As an initial matter, courts have been applying the new rules even to cases pending when they took effect. The Supreme Court’s order formally amending the rules provides that the rules apply to all actions filed December 1, 2018, and later “and, insofar as just and practicable, all proceedings then pending.” So far, every court to consider the question has applied the amended rule. Again, given the incremental nature of the changes, this result is expected. Absent some prejudice to a party—say, an objector who appeared before the new rules raising the stakes for objections came into effect—parties should expect that the amended rules will apply to their action regardless of the filing date.
The amendments primarily address issues arising in settling class actions, and the available opinions arise in that context. Courts are certainly citing amended Rule 23(e) to evaluate the fairness of settlements, but they are likewise continuing to use pre-amendment standards as well:
- Hefler v. Wells Fargo & Company, 2018 WL 6619983 (N.D. Cal. Dec. 18, 2018), is one example of the court applying the Rule 23(e) standards and the existing Ninth Circuit rule.
- Hale v. State Farm Mutual Auto. Ins. Co., 2018 WL 6606079 (S.D. Ill. Dec. 16, 2018) comes from the Seventh Circuit. That case decides that the amended Rule 23(e) “considerations overlap with the factors previously articulated by the Seventh Circuit.”
- Hays v. Eaton Group Attorneys, LLC, 2019 WL 427331 (M.D. La. Feb. 4, 2019) applies the old Fifth Circuit standard alongside the new Rule 23(e) standard.
- Becker v. Bank of New York Mellon Trust Co., N.A., 2018 WL 6727820 (E.D. Pa. Dec. 21, 2018) from the Third Circuit notes that the amended Rule 23(e) “factors overlap substantially with the factors identified by the Court of Appeals in Girsh and Prudential.”
In addition to addressing standards for settlement, the amendments impose more explicit standards for objections and place electronic and other alternative means of delivering notice on equal footing with first-class mail in the judicial search for “the best notice practicable” in apprising class members of class certification and settlement. As of yet, no cases have applied these new standards, but we suspect that courts will continue the ever-growing trend of using electronic means to provide class notice.
We will continue to monitor these developments, but—truth be told—we are not holding our breath for any major changes.