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After more than 10 years of consideration, several changes to the federal class action rules went into effect on Dec. 1. Among the changes is a provision that gives class action plaintiffs a second chance to opt out of a class settlement after the original opt-out period has passed. Critics argued that a second opt-out opportunity would encourage objections and create uncertainty in settlement negotiations, since defendants would not know how many future claims would be left unresolved. Still, lawyers for both plaintiffs and defendants for the most part agreed that this and the other changes would have a very minor impact on the vast majority of class action cases. “These are not radical changes in the class action rules,” said John Beisner, who chairs O’Melveny & Myers’ class action practice in the firm’s Washington office. “They are more of a confirmation of best practices that some federal courts have been using for some years.” Herbert Milstein of the Washington-based plaintiffs’ firm Cohen, Milstein, Hausfeld & Toll agreed that the changes would not have a dramatic impact on how class actions are litigated generally, although they could affect particular cases. He said the second opt-out could give more due process to class members in some cases where plaintiffs may not know initially how extensive their injuries are. “It gives them a second bite at the apple,” Milstein said. On Sept. 24, the 27 judges of the U.S. Judicial Conference unanimously approved the changes to Rule 23 of the Federal Rules of Civil Procedure, which were drafted by the conference’s civil rules advisory committee. The changes are published on the federal judiciary’s Web site at www.uscourts.gov/rules/newrules6.html. The committee had been studying Rule 23 since 1991. As modest as they are, the revisions represent the most significant amendments to class action rules since they were rewritten in 1966. The changes generated voluminous testimony and written comments when they were under proposal. Other revisions include the elimination of a mandatory-notice requirement in some cases, which is designed to permit class actions to go forward where the notice obligation would be prohibitively expensive. The revised rule also requires that parties inform the judge of any side agreements made when proposing a settlement. Under another change, notice of a class certification must now include certain details, such as the nature of the action and the definition of the class.

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