Complex Litigation:The New Rule 23(g)

Abstract

Commentary and analysis of the new provision in the class action Rule 23 for the appointment of class counsel. Rule 23 was amended effective December 1, 2003 to add a new provision Rule 23(g) to codify principles relating to the appointment of counsel. Previously, Rule 23 contained no provisions relating to the appointment of counsel, and the court only assessed the adequacy of class counsel under Rule 23(a)(4). This article examines the text of Rule 23(g), the standards for appointment of counsel set forth in the new rule, and emerging judicial decisions construing and applying the new rule, which was intended to codify pre-existing principles relating to the appointment of counsel. Under the new rule, as part of the class certification process, the court also must appoint counsel. The article also examines the ways in which Rule 23(g) departs from pre-existing standards, and the relationship of Rule 23(g) to the Rule 23(a)(4) adequacy requirement. The 2003 Rule 23 amendments also added a new provision, Rule 23(f), providing standards for the award of attorney fees in class actions, which also had been determined by common law principles prior to the codification in subsection (f).