RULE 23. CLASS ACTIONS RULE
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(g) Notice of Action.
(1) Following certification, the court by order, after hearing, shall direct the giving of notice to the class.
(2) The notice, based on the certification order and any amendment of the order,
(A) a general description of the action, including the relief sought, and the names and addresses of the representative parties;
(B) a statement of the right of a member of the class under subdivision (h) to be excluded from the action by filing an election to be excluded, in the manner specified, by a certain date;
(C) a description of possible financial consequences
onfor the class;
(D) a general description of any counterclaim being asserted by or against the class, including the relief sought;
(E) a statement that the judgment, whether favorable or not, will bind all members of the class who are not excluded from the action;
(F) a statement that any member of the class may enter an appearance either personally or through counsel;
(G) an address to which inquiries may be directed; and
(H) other information the court deems appropriate;
(3) the order
shallmust prescribe the manner of notification to be used and specify the members of the class to be notified. In determining the manner and form of the notice to be given, the court shall consider the interests of the class, the relief requested, the cost of notifying themembers of the class, and the possible prejudice to members who do not receive notice.
(4) Each member of the class, not a representative party, whose potential monetary recovery or liability is estimated to exceed $100
shallmust be given personal notice, ormailed notice, or notice via third-party commercial carrier if histhe person's identity and whereabouts can be ascertained by the exercise of reasonable diligence.
(5) For members of the class not given
personal or mailednotice under paragraph (4), the court shall provide, as a minimum, a means of notice reasonably calculated to apprise the members of the class of the pendency of the action. Techniques calculated to assure effective communication of information concerning commencement of the action shallmust be used. The techniques may include personal notice, ormailed notice, or notice via third-party commercial carrier, notification by means ofnewspaper, television, radio, posting in public or other places, and distribution through trade, union, public interest, or other appropriate groups.
(6) The plaintiff shall advance the expense of notice under this subdivision if there is no counterclaim asserted. If a counterclaim is asserted the expense of notice
shallmust be allocated as the court orders in the interest of justice.
(7) The court may order that steps be taken to minimize the expense of notice.
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Rule 23 was amended, effective February 15, 1977; January 1, 1995; March 1, 1999.
Rule 23 is substantially the same as the Model Class Actions Rule as drafted by the National Conference of Commissioners on Uniform State Laws. Prior to February 15, 1977, the effective date of this rule, Rule 23 was the same as Rule 23, FRCivP.
The following comments are based upon the official Comments to the Model Rule.
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The hearing required by paragraph (1), if the court wishes, can be combined with the hearing required by subdivision (b) (1).
Subdivision (g) was amended, effective March 1, 1999, to allow notice via third-party commercial carrier as an alternative to mail.
Personal mailed notice to all members of the class is not required by this Rule. See Grant v. City of Lincoln, 225 N.W.2d 549 (Neb. 1975); Cartt v. Superior Court in and for County of Los Angeles, 50 Cal.App.3d 960, 124 Cal.Rptr. 376 (Ct.App. 1975).
The type of notice to be given may vary as to the persons to be notified and the form of notice and, to some extent, the content. Paragraph (3) indicates that the court must consider a number of factors in deciding what type of notice to give.
Paragraph (8) would allow the court to order a defendant who has a mailing list of class members to cooperate with the representative parties in notifying the class members. Use of a computer or enclosing notice in a regular mailing would be possibilities.
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SOURCES: Procedure Committee Minutes of January 29-30, 1998, pages 18-19; April 28-29, 1994, page 23; September 20-21, 1979, pages 14-17; September 23-24, 1976, pages 62-76; Uniform Class Actions Rule (1976).
SUPERSEDED: Section 28-0208, NDRC 1943.
CROSS REFERENCE: Rules 19 (Joinder of Persons Needed for Just Adjudication), 20 (Permissive Joinder of Parties), and 24 (Intervention), NDRCivP.