Amendments affecting Federal Rules of Civil Procedure 23, 51, 53, 54 and 71A, Evidence Rule 608(b), and Federal Rules of Bankruptcy Procedure became effective on December 1, 2003. These changes are summarized below.
F.R.Civ.P. 23 (Class Action, Subdivision (c) (class certification). The requirement that the court determine whether to certify a class "as soon as practicable after commencement of an action" is replaced by requiring determination "at an early practicable time." The provision that a class certification "may be conditional" is deleted. The provision that permits alteration or amendment of an order granting or denying class certification is amended to set the cut-off point at final judgment rather than "the decision on the merits." The notice provisions are substantially revised. The court is given authority to direct notice to class members in a (b)(1) or (b)(2) class action. The rule directs that class-certification notice be couched in plain, easily understood language.
F.R.Civ.P. 23(e) (settlement, dismissal or compromise). The process of reviewing proposed class-action settlements is strengthen. The amended subdivision requires approval if the claims, issues, or defenses of a certified class are resolved by a settlement, voluntary dismissal, or compromise. Subdivision (e)(1)(B) requires notice of a settlement binding on the class when the settlement follows class certification or when the decisions on certification and settlement proceed simultaneously. Subdivision (e)(1)(C) mandates the holding of hearings as part of the process of approving settlement, voluntary dismissal, or compromise that would bind members of a class. Subdivision (e)(1)(C) states that for approving a proposed settlement that would bind class members, the court must conclude that the settlement is fair, reasonable, and adequate and make detailed findings. Subdivision (e)(2) requires parties seeking approval of a settlement, voluntary dismissal, or compromise under Rule 23(e)(1) to file a statement identifying any agreement made in connection with the settlement. Subdivision (e)(3) authorizes the court to refuse to approve a settlement unless the settlement affords class members a new opportunity to request exclusion from a class certified under Rule 23(b)(3) after settlement terms are known. It also authorizes the court to refuse to approve a settlement unless the settlement affords a new opportunity to elect exclusion in a case that settles after a certification decision if the earlier opportunity to elect exclusion provided with the certification notice has expired by the time of the settlement notice. Subdivision (e)(4) confirms class members' right to object to a proposed settlement without opting out of the litigation, but the class member must obtain court approval before abandoning its objection.
F.R.Civ.P. 23(g) (class counsel). Subdivision (g) is new. It recognizes the importance of class counsel, states the obligation to represent the interests of the class, and provides a framework for selection of class counsel.
F.R.Civ.P. 23(h) (attorney fee awards). Subdivision (h) is new. It requires the court to examine a number of factors, including the work and effort the potential class counsel has actually put into the case, his experience in handling class actions and claims similar to those being asserted, his knowledge of the applicable law and "the resources counsel will commit to representing the class." Moreover, the court may direct that potential class counsel "propose terms for attorneys' fees and nontaxable costs" as part of the court's evaluation of the adequacy of counsel.
F.R.Civ.P. 51 (Instructions to Jury). Amended Subdivision (a) recognizes the court's authority to direct that requests be submitted before trial. Amended Subdivision (a)(2)(B) expressly recognizes the court's discretion to act on an untimely request. To be considered under subdivision (a)(2)(B) a request should be made before final instructions and before final jury arguments. Amended Subdivision (b)(1) requires the court to inform the parties, before instructing the jury and before final jury arguments related to the instruction, of the proposed instructions as well as the proposed action on instruction requests. Amended Subdivision (b)(2) makes explicit the opportunity to object on the record, ensuring a clear memorial of the objection. Amended Subdivision (b)(3) authorizes instructions at any time after trial begins and before the jury is discharged. Amended Subdivision (c) states the right to object to an instruction or the failure to give an instruction. Amended Subdivision (d)(1)(B) establishes authority to review the failure to grant a timely request, despite a failure to add an objection, when the court has made a definitive ruling on the record rejecting the request.
F.R.Civ.P. 53 (Masters). The amended rule clarifies and substantially rewrites the provisions that govern the appointment and function of masters.
F.R.Civ.P. 54 (Judgments, Costs). This rule is amended to reflect changes in Rule 53.
F.R.Civ.P. 71A (Condemnation of Property). This rule is amended to reflect changes in Rule 53.
Evidence Rule 608(b) (Character Evidence -- Specific Instances of Conduct). The amendment makes clear that the absolute bar on the use of extrinsic evidence is applicable only when the sole reason for proffering such evidence is to support or attack the witness' character for truthfulness.
F.R.B.P. 1005. (Caption of Petition). This rule is amended to require the debtor to list all names used in the six years preceding the filing of the petition, and to include on the caption appropriate numerical identifiers, but using only the last four digits of the social security number.
F.R.B.P. 1007. (Lists, Schedules, and Statements; Time Limits). Subdivision (a) is amended to require the debtor to file a corporate ownership statement setting out the information described in Rule 7007.1. Requiring debtors to file the statement provides the court with an opportunity to make judicial disqualification determinations at the outset of the case. The debtor also must file supplemental statements as changes in ownership might arise. Subdivision (f) is added to require the debtor to submit a verified statement of his or her full social security number.
F.R.B.P. 2002. (Notices to Creditors, Equity Security Holders, United States, and United States Trustee.) Subdivision (a)(1) is amended to require the clerk or other person giving notice of the § 341 or § 1104(b) meeting of creditors to include the debtor's full social security number on the notice.
F.R.B.P. 2003. (Meeting of Creditors or Equity Security Holders.) Subdivision (b) is amended to reflect the enactment of subchapter V of chapter 7 of the Code governing multilateral clearing organization liquidations. Section 782 of the Code provides that the designation of a trustee or alternative trustee for the case is made by the Federal Reserve Board. Therefore, the meeting of creditors in those cases cannot include the election of a trustee.
F.R.B.P. 2009. (Trustees for Estates When Joint Administration Ordered.) The rule is amended to reflect the enactment of subchapter V of chapter 7 of the Code governing multilateral clearing organization liquidations.
F.R.B.P. 2016. (Compensation for Services Rendered and Reimbursement of Expenses.) This rule is amended by adding subdivision (c) to implement § 110(h)(1) of the Code requiring disclosure of fee paid or promised to a bankruptcy petition preparer.
F.R.B.P. 7007.1. (Corporate Ownership Statement.) This new rule directs nongovernmental corporate parties to file a statement listing those corporations that hold significant ownership interests in them.
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