Mass. R. Civ. P. 23
The plaintiff shall provide such notice no later than 30 days prior to the entry of judgment or any hearing approving any compromise that creates residual funds. If no later than 10 days prior to the entry of judgment or such hearing, the court does not receive a certification by the plaintiff that the required notice has been provided to the Massachusetts IOLTA Committee, no judgment shall enter and any such hearing shall be continued to a date at least 30 days after the required notice has been provided and certification of such is submitted to the court.
Mass. R. Civ. P. 23
Reporter's Notes--2023
This amendment deals with the notice required before residual funds in class action proceedings may be distributed.
Since 2009, residual funds were required to be disbursed to nonprofit groups "which support projects that will benefit the class or similarly situated persons consistent with the objectives and purposes of the underlying causes of action on which relief was based" or to the Massachusetts IOLTA Committee for the purpose of promoting access for low-income persons to the civil justice system. Rule 23(e)(2). A 2015 amendment to Rule 23 required the plaintiff to provide notice to the Massachusetts IOLTA Committee so that it may be heard on whether it should receive "any or all" residual funds that may remain in a class action after all payments have been made. Rule 23(e)(3). See also, Rule 23(c), as amended in 2015.
Subsequently, the Massachusetts IOLTA Committee informed the Standing Advisory Committee on the Rules of Civil Procedure that it believed that the 2015 amendment was not working because the Massachusetts IOLTA Committee was not receiving regular notices of class action settlements and judgments, notwithstanding the requirement of notice in Rule 23(c). The Massachusetts IOLTA Committee requested that Rule 23 be further amended to set up a more efficient procedure that would ensure that it receives notices.
As amended, Rule 23(e)(3) requires that prior to entry of judgment or prior to any hearing approving a compromise that creates residual funds, the plaintiff is required to provide notice to the Massachusetts IOLTA Committee at least 30 days before the entry of judgment or the hearing. If, no later than 10 days prior to entry of judgment or prior to a hearing approving a compromise, the court has not received a certification from the plaintiff that the notice has been sent to the Massachusetts IOLTA Committee, a judgment shall not enter and any hearing regarding approval of a compromise shall be continued until at least 30 days after notice has been provided and the plaintiff so certifies to the court. The language requiring notice to be given to the IOLTA Committee at least 30 days before a hearing approving a compromise is intended also to include any hearing preliminarily approving any compromise that creates residual funds.
The purpose of the certification procedure is to provide the Massachusetts IOLTA Committee with sufficient notice so that it has an opportunity to be heard on the issue of disposition of residual funds.
Reporter's Notes:
(2015) This is the second amendment to Rule 23 regarding residual funds in class actions proceedings. The first amendment to Rule 23 in 2008 set forth a definition of residual funds and provided for disbursement of residual funds to nonprofit groups or to the Massachusetts IOLTA Committee for the purpose of promoting access for low income persons to the civil justice system.
This second amendment in 2015 added a sentence to Rule 23(c) and added subdivision (e)(3) requiring the court to order notice to the Massachusetts IOLTA Committee so that it may be heard on whether it should receive "any or all" residual funds that may remain in a class action after all payments have been made.
(2008): The 2008 amendment, effective January 1, 2009, added Rule 23(e) concerning residual funds in class action proceedings. This amendment was recommended to the Supreme Judicial Court by the Massachusetts IOLTA Committee.
(1996): With the merger of the District Court civil rules into the Mass. R. Civ. P., Rule 23 of the Mass. R. Civ. P. governing class actions is made applicable to District Court proceedings.
(1973): Prior Massachusetts practice in the area of class suits was governed entirely by case law. The requirements for maintaining a class suit in Massachusetts were set out as follows:
"Class bills may be maintained where a few individuals are fairly representative of the legal and equitable rights of a large number who cannot readily be joined as parties. The persons suing as representatives of a class must show by the allegations of their bill that all the persons whom they profess to represent have a common interest in the subject matter of the suit and a right and interest to ask for the same relief against the defendants. It is not essential that the interest of each member of the class be identical in all aspects with that of the plaintiffs. The interest must arise out of a common relationship to a definite wrong. There must be a joint prejudice to all the class whom the plaintiff seeks to represent. The wrong suffered must be subject to redress by some common relief beneficial to all. The plaintiffs must be fairly representative in all essential particulars of the class for which they seek to act.... Mere community of interest in the questions of law or of fact at issue in a controversy or in the kind of relief to be afforded does not go far enough to warrant a class suit. Avoidance of multiplicity of suits is not enough." Spear v. H.V. Greene Co., 246 Mass. 259, 266-267, 140 N.E. 795, 797-798 (1923). (emphasis supplied)
This rule likewise applies where the action was brought against a class. Thus in Thorn v. Foy, 328 Mass. 337, 338, 103 N.E.2d 416, 417 (1952) a suit was held properly brought against the officers of a labor union, individually and as representatives of the members of the union, because it was found that the members were too numerous to be sued individually and the named defendants adequately represented the entire membership.
Rule 23(a) sets out four prerequisites to a class action. These prerequisites, which are also contained in Federal Rule 23(a) as amended in 1966, closely parallel prior Massachusetts practice as stated in Spear v. H.V. Greene Co., supra.
"(1) the class is so numerous that joinder of all members is impracticable."
Federal courts have drawn very few lines with respect to how large a class must be in order to allow the class action. Most courts would agree that mere numbers should not be the sole test of practicability of joinder.
"But courts should not be so rigid as to depend upon mere numbers as a guideline on the practicability of joinder; a determination of practicability should depend upon all the circumstances surrounding a case." Demarco v. Edens, 390 F.2d 836, 845 (2d Cir.1968).
The Supreme Judicial Court has never attempted to set any minimum number which would be necessary for a class suit. The opinions use such language as "large number who cannot readily be joined as parties," Spear v. H.V. Greene Co., 246 Mass. at 266, 140 N.E. at 797; "When the parties interested are very numerous, so that it would be difficult and expensive to bring them all before the court ... the court will not require a strict adherence to the [general] rule [that all interested persons be made parties]." Stevenson v. Austin, 44 Mass. (3 Metc.) 474, 480 (1842).
Rule 23(a)(1) will have little effect on prior Massachusetts practice.
"(2) there are questions of law or fact common to all."
The requirement of common questions of law or fact is the same as that established for joinder under Rule 20 and intervention under Rule 24. It should, however, be noted that Rule 23(a)(2), unlike Rules 20 and 24, does not also require a single transaction or series of transactions or a single occurrence or series of occurrences. However, the language of Rule 23(b) concerning the predominance of the questions of law or fact over questions affecting individual members would imply the need for a single transaction or occurrence or a series of transactions or occurrences.
Rule 23(a)(2) should have little effect on prior Massachusetts law. "The persons suing as representatives of a class must show by the allegations of their bill that all the persons whom they profess to represent have a common interest in the subject matter of the suit and a right and interest to ask for the same relief against the defendants." Spear v. H.V. Greene Co., 246 Mass. at 266, 140 N.E. at 797.
"(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will adequately protect the interests of the class."
Prerequisite (3) was written into Federal Rule 23 when it was amended in 1966. It should be read with prerequisite (4). Both requirements state the need for the ability of the representatives of the class to protect its interests. The word "typical" does not require that all members of the class be identically situated. Siegel v. Chicken Delight, Inc., 271 F.Supp. 722, 726-727 (N.D.Cal. 1967). This is similar to the language of the Supreme Judicial Court in the Spear case: "It is not essential that the interest of each member of the class be identical in all respects with that of the plaintiffs. The interest must arise out of a common relationship to a definite wrong." Spear v. H.V. Greene Co., 246 Mass. at 266, 140 N.E. at 797.
Rule 23(a)(3) and (4) should have little effect on prior Massachusetts law.
Rule 23(b) deletes substantial portions of Federal Rule 23(b) which are unnecessary to state practice. Beyond the four requirements set out in Rule 23(a) for maintaining a class action the only further requirements set out in Rule 23(b) are findings by the Court: (1) that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
Rule 23(c) and (d) are designed to afford protection to absent members of the class.
Unlike Federal Rule 23, the Massachusetts class action rule does not require the giving of notice to members of the class; nor does it provide to members of the class the opportunity to exclude themselves. Instead Rule 23(d) provides that the court may order that notice be given, in such manner as it may direct, of the pendency of the action, of a proposed settlement, of entry of judgment, or of any other proceedings in the action, including notice to the absent persons that they may come in and present claims and defenses if they so desire. No doubt the trial judge will order the giving of appropriate notice to members of the class, of the commencement of the action where fairness and justice so require, particularly where the failure to give notice may raise subsequent problems of res judicata.