When is a complaint styled as a “class action” to be treated as a real class action? Is it only after all of the prerequisites of CPLR 901 and 902 have been met, an order issued pursuant to CPLR 903 and notice sent pursuant to CPLR 904? Or is it earlier? The Court of Appeals in Desrosiers v. Perry Ellis Menswear, 2017 NY Slip Op 08620 (Dec. 12, 2017) wrestled with this issue in a 4-3 split regarding whether the notice provisions of “CPLR 908 applies only to certified class actions, or also to class actions that are settled or dismissed before the class has been certified.” The majority opinion of Judge Eugene Fahey concluded “that CPLR 908 applies in the pre-certification context.” The dissenting opinion of Judge Leslie Stein concluded that “the plain language of CPLR 908, taken in context, does not require notice to putative class members if the action is resolved prior to class certification.”

Each of their excellent and well written opinions are discussed below. It should be noted that Richard J. Schager Jr. wrote an excellent analysis of the Desrosiers decision (“Judicial Approval, Class Notice Required for Settlement of Uncertified Class Actions,” N.Y.L.J. (Jan. 24, 2018)) including a discussion of the great work of several New York City Bar Association Committees in 2003 and 2015. However, our points of view are quite different, as noted below.

There Are Differences