ARTICLE
27 December 2017

Wisconsin Supreme Court Aligns State Class Action Statute With Fed. R. Civ. P. 23

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Foley & Lardner
Contributor
Foley & Lardner LLP looks beyond the law to focus on the constantly evolving demands facing our clients and their industries. With over 1,100 lawyers in 24 offices across the United States, Mexico, Europe and Asia, Foley approaches client service by first understanding our clients’ priorities, objectives and challenges. We work hard to understand our clients’ issues and forge long-term relationships with them to help achieve successful outcomes and solve their legal issues through practical business advice and cutting-edge legal insight. Our clients view us as trusted business advisors because we understand that great legal service is only valuable if it is relevant, practical and beneficial to their businesses.
On December 21st, the Wisconsin Supreme Court entered an order adopting proposed amendments to Wisconsin's class action procedures in state court actions ...
United States Litigation, Mediation & Arbitration
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On December 21st, the Wisconsin Supreme Court entered an order adopting proposed amendments to Wisconsin's class action procedures in state court actions, which are "intended to align [the state rule] with the federal class action rule, Fed. R. Civ. P. 23." See In re proposed amendments to Wisconsin Statutes s.s. 803.08 and 426.110, Pet. No. 17-03 (entered Dec. 21, 2017), available here. The order completes an administrative rules process involving public hearing and comment that took place over the course of 2017. The Wisconsin Supreme Court's vote to adopt the proposed amendments was unanimous.

The order replaces Wisconsin's current, one-sentence class action statute, Wis. Stat. 803.08—itself a holdover from the nineteenth-century Field Code. The new class action rule will not be effective until July 1, 2018, although, under the terms of the Wisconsin Supreme Court's order, there will be a presumption that the new rule also applies to cases pending as of the effective date, absent a finding of unfeasibility or injustice. Given the brevity of Wisconsin's current class action statute, demonstrating the unfeasibility or injustice of applying the new rule to a pending class action case may be difficult.

Wisconsin's replication of federal Rule 23 brings with it the now-familiar terminology and procedures used in federal class action cases. Proposed classes in Wisconsin state court actions will now need to satisfy the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy, and also fall under one of the types of classes described in Rule 23(b) (i.e., those that avoid a risk of inconsistent verdicts, those seeking common injunctive relief, or those where common questions predominate and a class action is superior to other methods of adjudication). In light of the fact that Wisconsin is expressly modelling its amended class action statute on federal Rule 23, Wisconsin courts will likely rely on federal precedent as persuasive authority regarding common class action issues such as ascertainability, predominance, and superiority. The new Wisconsin rule also carries with it the procedural mechanics for class notice, court approval of class settlements, and attorney fee awards, which have all been used in federal class actions for years.

In related news, a bill was introduced in the Wisconsin State Assembly on December 19, 2017, which proposed further changes to Wisconsin's class action statute. See 2017 Assembly Bill 773 (introduced Dec. 19, 2017), available here.

In the coming weeks, Foley attorneys will be providing deeper analysis of Wisconsin's adoption of these new class action procedures and any related legislative developments in a forthcoming article in the State Bar of Wisconsin's Wisconsin Lawyer magazine.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
27 December 2017

Wisconsin Supreme Court Aligns State Class Action Statute With Fed. R. Civ. P. 23

United States Litigation, Mediation & Arbitration
Contributor
Foley & Lardner LLP looks beyond the law to focus on the constantly evolving demands facing our clients and their industries. With over 1,100 lawyers in 24 offices across the United States, Mexico, Europe and Asia, Foley approaches client service by first understanding our clients’ priorities, objectives and challenges. We work hard to understand our clients’ issues and forge long-term relationships with them to help achieve successful outcomes and solve their legal issues through practical business advice and cutting-edge legal insight. Our clients view us as trusted business advisors because we understand that great legal service is only valuable if it is relevant, practical and beneficial to their businesses.
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