The class action rule of federal practice, Fed.R.Civ.P. 23, was amended in 2003 to state specific criteria for federal courts appointing class counsel after certifying a class action. While Rule 23, as amended, says little about the qualifications for the appointment of class representatives, in appointing class counsel Rule 23(g)(1)(A) states that courts “must consider” not only counsel’s “experience in handling class actions,” but also counsel’s experience with “the claims asserted in the action” and “knowledge of the applicable law.” Fed.R.Civ.P. 23(g)(1)(A)(ii)&(iii).
The New York Legislature has yet to mount a comparable effort to reform CPLR Article 9, the class action rules for New York practice. In 2003 the New York City Bar Association adopted a report of the Council on Judicial Administration and the Committee on State Courts of Superior Jurisdiction proposing amendments to Article 9, but adequacy of counsel was not an element of that report.1 Those committees are working on a new report, anticipated for completion in the autumn, which will contain a proposal to adapt the new Federal Rule 23(g) to state practice. (The author has helped lead and participated in these efforts.)
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