Class Actions, Electronic Filings Highlight Rules Proposals

Proposed updates of the rule governing class-action lawsuits, and a proposal to mandate electronic filings by lawyers, highlight a broad array of proposed amendments to the Federal Rules of Practice and Procedure.

The proposals were published Friday by the Judiciary’s Committee on Rules of Practice and Procedure, which is calling on the public, bar and bench to submit written comments by Feb. 15, 2017.  Including the class-action and electronic-filings measures, the proposals cover numerous topics, and could affect eight appellate rules, twelve bankruptcy rules, four civil rules and three criminal rules, as well as bankruptcy and appellate forms and a bankruptcy rules appendix.

“All comments on these proposed amendments will be carefully considered by the advisory committees, which are composed of experienced trial and appellate lawyers, judges, and scholars,” wrote Judge Jeffrey S. Sutton, chair of the Committee on Rules of Practice and Procedure, in an Aug. 12 letter introducing the proposals.

The letter noted that a total of eight public hearings, each covering specified amendments, have been scheduled from Oct. 17, 2016, through Feb. 24, 2017. Procedures for submitting testimony or written comments are available at Proposed Amendments for Public Comment.

Civil Rule 23, which governs class-action lawsuits, last was revised in 2003. Proposed changes to the rule were discussed in nearly two dozen meetings, according to a report signed by Judge John D. Bates, chair of the Judiciary’s Advisory Committee on Civil Rules.

“The principal topic of the proposed amendments is the process of settling class actions, which is important because many class actions settle and the court has distinctive responsibilities in reviewing such settlements,” the report said.

One amendment would create a standardized set of factors for judges to consider, in deciding whether to approve a class-action settlement as “fair, reasonable and adequate.”   At present, these factors vary among the federal circuits. Other changes would guide judges in assessing whether to certify a class-action for settlement purposes, and permit electronic as well as paper notification of potential class-action participants.

Changes to Appellate, Bankruptcy, Civil and Criminal Rules would require lawyers to submit all federal court filings electronically, unless an exception is granted. Most courts already require electronic filings through local court rules.

“Electronic filing has matured,” wrote the Judiciary’s Advisory Committee on Civil Rules. “Most districts have adopted local rules that require electronic filing, and allow reasonable exceptions as required by the former rule. The time has come to seize the advantages of electronic filing by making it mandatory in all districts.”

At the same time, pro se civil litigants—those without lawyers—would file by paper, unless local court rules permit otherwise. The report noted that electronic submissions remain difficult or impossible for many pro se filers.

The federal Judiciary’s rulemaking process is guided by the Rules Enabling Act. Amendments to the Federal Rules of Practice Procedure usually require two to three years of review, public hearings and multiple layers of approval.

Before any amendments are adopted, they must be approved by the Committee on Rules of Practice and Procedure, the Judicial Conference of the United States and the Supreme Court. Congress then has a time period in which it can reject changes approved by the Judiciary. The earliest the proposed amendments can be adopted is Dec. 1, 2018.

More information is available at Rules and Policies, and at About the Rulemaking Process.