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Rule 23 – Class Actions

May 14, 2021 | Civil Procedure, Ohio

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

(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and class.
(4) the representative parties will fairly and adequately protect the interests of the class.
(B) Types of class actions. A class action may be maintained Civ.R. 23(A) is satisfied, and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(a) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(b) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(a) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(b) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(d) the likely difficulties in managing a class action.
(C) Certification order; notice to class members; judgment; issues classes; subclasses.

(1) Certification order

(a) Time to issue. At an early practicable time after a person sues or is sued as a class representative, the court shall determine by order whether to certify the action as a class action.
(b) Defining the class; appointing class counsel. An order that certifies a class action shall define the class and the class claims, issues, or defenses, and shall appoint class counsel under Civ.R. 23(F).
(c) Altering or amending the order. An order that grants or denies class certification may be altered or amended before final judgment.
(2) Notice.

(a) For (B)(1) or (B)(2) classes. For any class certified under Civ.R. 23(B)(1) or (B)(2), the court may direct appropriate notice to the class.
(b) For (B)(3) classes. For any class certified under Civ.R. 23(B)(3), the court shall 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. The notice shall clearly and concisely state in plain, easily understood language:

(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Civ.R. 23(C)(3).
(3) Judgment. Whether or not favorable to the class, the judgment in a class action shall:

(a) for any class certified under Civ.R. 23(B)(1) or (B)(2), include and describe those whom the court finds to be class members: and
(b) for any class certified under Civ.R. 23(B)(3), include and specify or describe those to whom the Civ.R. 23(C)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.
(4) Particular issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.
(5) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.
(D) Conducting the action.

(1) In general. In conducting an action under this rule, the court may issue orders that:

(a) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;
(b) require to protect class members and fairly conduct the action giving appropriate notice to some or all class members of:

(i) any step in the action;
(ii) the proposed extent of the judgment; or
(iii) the members’ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;
(c) impose conditions on the representative parties or on intervenors;
(d) require that the pleadings be amended to eliminate allegations about representation of absent persons, and that the action proceed accordingly; or
(e) deal with similar procedural matters.
(2) Combining and amending orders. An order under Civ.R. 23(D)(1) may be altered or amended from time to time and may be combined with an order under Civ.R. 16.
(E) Settlement, voluntary dismissal, or compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:

(1) The court shall direct notice in a reasonable manner to all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.
(3) The parties seeking approval shall file a statement identifying any agreement made in connection with the proposal.
(4) If the class action was previously certified under Civ.R. 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.
(5) Any class member may object to the proposal if it requires court approval under this division (E); the objection may be withdrawn only with the court’s approval.
(F) Class counsel.

(1) Appointing class counsel. A court that certifies a class shall appoint class counsel. In appointing class counsel, the court:

(a) shall consider:

(i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing the class;
(b) may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class;
(c) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney’s fees and nontaxable costs;
(d) may include in the appointing order provisions about the award of attorney’s fees or nontaxable costs under Civ.R. 23(G); and
(e) may make further orders in connection with the appointment.
(2) Standard for appointing class counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Civ.R. 23(F)(1) and (4). If more than one adequate applicant seeks appointment, the court shall appoint the applicant best able to represent the interests of the class.
(3) Interim counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.
(4) Duty of class counsel. Class counsel shall fairly and adequately represent the interests of the class.
(G) Attorney fees and nontaxable costs. In a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement. The following procedures apply:

(1) A claim for an award shall be made by motion. Notice of the motion shall 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 to the motion.
(3) The court may hold a hearing and shall state in writing the findings of fact found separately from the conclusions of law.
(4) The court may refer issues related to the amount of the award to a magistrate as provided in Civ.R. 53.
(H) Aggregation of claims. The claims of the class shall be aggregated in determining the jurisdiction of the court.

Ohio. Civ.R. 23

Effective:July 1, 1970;July 1, 2015.

Staff Note (July 1, 2015 Amendment)

The rule is amended to conform its provisions to the changes made to Federal Rule 23 since the 1970 adoption of the Ohio Rule. While Civ.R. 23 has remained unchanged since its adoption, the Federal rule, upon which the Ohio rule was originally modeled, has undergone significant changes to guide courts and parties in the conduct of class actions, most notably the substantive amendments made to the Federal rule in 1998 and the stylistic changes made in 2007. The changes to the Ohio rule include defining the class and appointing class counsel in the certification order; additional detail for the initial notice to Civ.R. 23(B)(3) class members and for the notice of a proposed settlement, voluntary dismissal, or compromise; and new provisions addressing the appointment of class counsel and the awarding of attorney fees and nontaxable costs.