Federal class actions: the deadlines in Rule 23 that aren't about certification

Most of Rule 23 is standards rather than deadlines. The dates it does contain are short, and two of them are jurisdictional in effect.

Certification comes "at an early practicable time"

FRCP 23(c)(1)(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."

No fixed number. In practice the deadline is set in the Rule 16(b) scheduling order, and many districts have a local rule setting an outside date for a certification motion — those are where the real calendar lives.

FRCP 23(c)(1)(B): an order certifying a class "must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g)."

FRCP 23(c)(1)(C): an order granting or denying certification "may be altered or amended before final judgment." Certification is provisional until judgment.

The 14-day appeal window

FRCP 23(f) is the shortest and least forgiving deadline in the rule:

A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule, but not from an order under Rule 23(e)(1). A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered, or within 45 days after the order is entered if any party is the United States, a United States agency, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States' behalf. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.

Four points.

Fourteen days, running from entry of the order — not from notice of it.

It is a petition for permission, not an appeal as of right. The court of appeals may decline.

No appeal from a Rule 23(e)(1) order — the order directing notice of a proposed settlement is expressly excluded.

No automatic stay. The district court case continues while the petition is pending unless someone orders otherwise.

Notice depends on which kind of class

FRCP 23(c)(2)(A): for a (b)(1) or (b)(2) class, the court may direct appropriate notice.

For a (b)(3) class — the damages class — notice is mandatory: 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." Notice may be by one or more of United States mail, electronic means, or other appropriate means, and must clearly and concisely state in plain, easily understood language the nature of the action; the class definition; the class claims, issues or defenses; that a class member may enter an appearance through an attorney if the member so desires; that the court will exclude from the class any member who requests exclusion; the time and manner for requesting exclusion; and the binding effect of a class judgment on members under Rule 23(c)(3).

The opt-out deadline itself is set by the court in the notice, not by the rule.

Settlement requires approval, and now requires a two-stage showing

FRCP 23(e): the claims, issues or defenses of a certified class — or a class proposed to be certified for settlement purposes — "may be settled, voluntarily dismissed, or compromised only with the court's approval."

Stage one — notice. Rule 23(e)(1)(A) requires the parties to "provide the court with information sufficient to enable it to determine whether to give notice of the proposal to the class." Rule 23(e)(1)(B) then directs the court to give notice only on a showing that it will likely be able to approve the proposal and certify the class for judgment purposes.

That front-loading is deliberate: the court screens before class members are notified, not after.

Stage two — approval after a hearing. Rule 23(e)(2) permits approval only after a hearing and only on finding the proposal fair, reasonable and adequate after considering whether the class representatives and class counsel have adequately represented the class; the proposal was negotiated at arm's length; the relief is adequate, taking into account the costs, risks and delay of trial and appeal, the effectiveness of the distribution method, the terms of any proposed fee award including timing of payment, and any agreement identified under Rule 23(e)(3); and whether the proposal treats class members equitably relative to each other.

Objections — Rule 23(e)(5). Any class member may object, and the objection must state whether it applies only to the objector, to a subset of the class, or to the entire class, and also state with specificity the grounds. Rule 23(e)(5)(B) requires court approval for any payment in connection with withdrawing an objection or an appeal from a judgment approving a settlement.

A second opt-out — Rule 23(e)(4). If the class was previously certified under Rule 23(b)(3), the court "may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so."

Fees run through Rule 54(d)(2), on the court's schedule

FRCP 23(h): in a certified class action the court may award reasonable attorney's fees and nontaxable costs authorized by law or by the parties' agreement. The procedures:

• (1) A claim for an award must be made by motion under Rule 54(d)(2), subject to this subdivision, at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.
• (2) A class member, or a party from whom payment is sought, may object.
• (3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a).

Note the deviation from ordinary practice: Rule 54(d)(2)'s 14-day deadline is displaced by "a time the court sets," and the motion must be directed to class members, who have standing to object.

Class counsel — Rule 23(g)

A court certifying a class must appoint class counsel, and in doing so must consider the work counsel has done in identifying or investigating potential claims; counsel's experience in handling class actions, other complex litigation, and the types of claims asserted; counsel's knowledge of the applicable law; and the resources counsel will commit to representing the class.

The court may also consider any other matter pertinent to counsel's ability to fairly and adequately represent the class, may order proposed class counsel to provide information on any subject pertinent to the appointment including proposed terms for attorney's fees and nontaxable costs, and may make further orders in connection with the appointment.

Rule 23(g)(4): "Class counsel must fairly and adequately represent the interests of the class."

The deadlines worth calendaring

Where these rules live

• Rule 16 — Pretrial Conferences; Scheduling; Management
• Rule 23 — Class Actions
• Rule 23.1 — Derivative Actions
• Rule 52 — Findings and Conclusions by the Court
• Rule 54 — Judgment; Costs

The certification standards in Rule 23(a) and (b) — numerosity, commonality, typicality, adequacy, predominance and superiority — are applied through a substantial body of case law this site doesn't cover. This page explains what the rules say. It isn't legal advice.