Article 9. Class Actions

NY CPLR § 901. PREREQUISITES TO A CLASS ACTION

a. One or more members of a class may sue or be sued as representative parties on behalf of all if:

  1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
  2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
  3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
  4. the representative parties will fairly and adequately protect the interests of the class;  and
  5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

b. Unless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action.

NY CPLR § 902. ORDER ALLOWING CLASS ACTION

Within sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in an action brought as a class action, the plaintiff shall move for an order to determine whether it is to be so maintained.  An order under this section may be conditional, and may be altered or amended before the decision on the merits on the court’s own motion or on motion of the parties.  The action may be maintained as a class action only if the court finds that the prerequisites under section 901 have been satisfied.  Among the matters which the court shall consider in determining whether the action may proceed as a class action are:
  1. The interest of members of the class in individually controlling the prosecution or defense of separate actions;
  2. The impracticability or inefficiency of prosecuting or defending separate actions;
  3. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
  4. The desirability or undesirability of concentrating the litigation of the claim in the particular forum;
  5. The difficulties likely to be encountered in the management of a class action.

NY CPLR § 903. DESCRIPTION OF CLASS

The order permitting a class action shall describe the class.  When appropriate the court may limit the class to those members who do not request exclusion from the class within a specified time after notice.

NY CPLR § 904. NOTICE OF CLASS ACTION

(a) In class actions brought primarily for injunctive or declaratory relief, notice of the pendency of the action need not be given to the class unless the court finds that notice is necessary to protect the interests of the represented parties and that the cost of notice will not prevent the action from going forward.

(b) In all other class actions, reasonable notice of the commencement of a class action shall be given to the class in such manner as the court directs.

(c) The content of the notice shall be subject to court approval.  In determining the method by which notice is to be given, the court shall consider

  • I. the cost of giving notice by each method considered
  • II. the resources of the parties and
  • III. the stake of each represented member of the class, and the likelihood that significant numbers of represented members would desire to exclude themselves from the class or to appear individually, which may be determined, in the court’s discretion, by sending notice to a random sample of the class.

(d) 

  • I. Preliminary determination of expenses of notification.  Unless the court orders otherwise, the plaintiff shall bear the expense of notification.  The court may, if justice requires, require that the defendant bear the expense of notification, or may require each of them to bear a part of the expense in proportion to the likelihood that each will prevail upon the merits.  The court may hold a preliminary hearing to determine how the costs of notice should be apportioned.
  • II. Final determination.  Upon termination of the action by order or judgment, the court may, but shall not be required to, allow to the prevailing party the expenses of notification as taxable disbursements under article eighty-three of the civil practice law and rules.

NY CPLR § 905. JUDGMENT

The judgment in an action maintained as a class action, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. 

NY CPLR § 906. ACTIONS CONDUCTED PARTIALLY AS CLASS ACTIONS

When appropriate,

  1. an action may be brought or maintained as a class action with respect to particular issues, or
  2. a class may be divided into subclasses and each subclass treated as a class.

The provisions of this article shall then be construed and applied accordingly.

NY CPLR RULE RULE 907. ORDERS IN CONDUCT OF CLASS ACTIONS

In the conduct of class actions the court may make appropriate orders:

  1. determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;
  2. requiring, for the protection of the members of the class, or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, or to appear and present claims or defenses, or otherwise to come into the action;
  3. imposing conditions on the representative parties or on intervenors;
  4. requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;
  5. directing that a money judgment favorable to the class be paid either in one sum, whether forthwith or within such period as the court may fix, or in such installments as the court may specify;
  6. dealing with similar procedural matters.

The orders may be altered or amended as may be desirable from time to time.

NY CPLR RULE RULE 908. DISMISSAL, DISCONTINUANCE OR COMPROMISE

A class action shall not be dismissed, discontinued, or compromised without the approval of the court.  Notice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs.

NY CPLR RULE RULE 909. ATTORNEYS’ FEES

If a judgment in an action maintained as a class action is rendered in favor of the class, the court in its discretion may award attorneys’ fees to the representatives of the class and/or to any other person that the court finds has acted to benefit the class based on the reasonable value of legal services rendered and if justice requires, allow recovery of the amount awarded from the opponent of the class.