AB773: Bill Text

AB773,12,10 (b) There are questions of law or fact common to the class.

AB773,12,12 (c) The claims or defenses and type and scope of injury of the representative parties are typical of the claims or defenses and type and scope of injury of the class.

AB773,12,14 (d) The representative parties will fairly and adequately protect the interests of the class.

AB773,12,17 (e) The members of the class are objectively verifiable by reliable and feasible means without individual testimony from putative class members and without substantial administrative burden.

AB773,15 Section 15. 803.08 (2) of the statutes, as created by Supreme Court Order 15-06, is renumbered 803.08 (11).

AB773,16 Section 16. 803.08 (3) to (10) of the statutes are created to read:

AB773,12,22 803.08 (3) Types of class actions. A class action may be maintained if sub. (1) is satisfied and if the court finds that any of the following applies:

AB773,12,24 (a) Prosecuting separate actions by or against individual class members would create a risk of one of the following:

AB773,13,3 1. Inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.

AB773,13,7 2. Adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members who were not a party to the individual adjudications or would substantially impair or impede another member's ability to protect his or her interests.

AB773,13,10 (b) The party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.

AB773,13,15 (c) The court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. In making this determination, the court shall consider all of the following factors:

AB773,13,17 1. The class members' interests in individually controlling the prosecution or defense of separate actions.

AB773,13,19 2. The extent and nature of any litigation concerning the controversy already begun by or against class members.

AB773,13,21 3. The desirability of concentrating the litigation of the claims in the particular forum.

AB773,13,22 4. The likely difficulties in managing a class action.

AB773,13,25 (4) Certification order. (a) Time to issue. At an early practicable time after a person sues or is sued as a class representative, the court shall determine by order whether to certify the action as a class action.

AB773,14,3 (b) Defining the class; appointing class counsel. An order granting class certification shall define the class, shall identify the class claims, issues, or defenses, and shall appoint class counsel under sub. (13).

AB773,14,5 (c) Altering or amending the order. The order granting or denying class certification may be altered or amended before final judgment.

AB773,14,7 (5) Notice. (a) For any class certified under sub. (3) (a) or (b), the court may direct appropriate notice to the class.

AB773,14,12 (b) For any class certified under sub. (3) (c), the court shall direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall state clearly and concisely in plain, easily understood language, all of the following:

AB773,14,13 1. The nature of the action.

AB773,14,14 2. The definition of the class certified.

AB773,14,15 3. The class claims, issues, or defenses.

AB773,14,17 4. That a class member may enter an appearance through an attorney if the member so desires.

AB773,14,19 5. That the court will exclude from the class any member who requests exclusion.

AB773,14,20 6. The time and manner for requesting exclusion from the class.

AB773,14,21 7. The binding effect of a class judgment on members under sub. (6).

AB773,14,23 (6) Judgment. Whether favorable or unfavorable to the class, the judgment in a class action shall do all of the following:

AB773,14,25 (a) For any class certified under sub. (3) (a) or (b), include and describe those persons who the court finds to be class members.

AB773,15,3 (b) For any class certified under sub. (3) (c), include and specify or describe the persons to whom the court directed notice under sub. (5) who have not requested exclusion and who the court finds to be class members.

AB773,15,6 (7) Particular issues. Notwithstanding ss. 805.05 (2) and 805.09 (2), when appropriate, an action may be brought or maintained as a class action with respect to particular issues.

AB773,15,8 (8) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this section.

AB773,15,10 (9) Conducting the action. (a) In conducting an action under this section, the court may issue orders for any of the following purposes:

AB773,15,12 1. To determine the course of proceedings or to prescribe measures to prevent undue repetition or complication in presenting evidence or argument.

AB773,15,14 2. In order to protect class members and fairly conduct the action, to require that appropriate notice be given to some or all class members of any of the following:

AB773,15,15 a. Any step in the action.

AB773,15,16 b. The proposed extent of the judgment.

AB773,15,19 c. The members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise participate in the action.

AB773,15,20 3. To impose conditions on the representative parties or on intervenors.

AB773,15,23 4. To require that the pleadings be amended to eliminate allegations regarding the representation of absent persons and to require that the action proceed accordingly.

AB773,15,24 5. To deal with similar procedural matters.

AB773,16,2 (b) An order under par. (a) may be altered or amended from time to time and may be combined with an order under s. 802.10.

AB773,16,6 (10) Settlement, voluntary dismissal, or compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. All of the following procedures apply to a proposed settlement, voluntary dismissal, or compromise:

AB773,16,8 (a) The parties seeking approval shall file a statement identifying any agreement made in connection with the proposal.

AB773,16,10 (b) The court shall direct notice in a reasonable manner to all class members who would be bound by the proposal.

AB773,16,12 (c) If the proposal would bind class members, the court may approve it only if it finds after a hearing that the proposal is fair, reasonable, and adequate.

AB773,16,16 (d) If the class action was previously certified under sub. (3) (c), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.

AB773,16,19 (e) Any class member may object to the proposal if it requires court approval under this subsection, and the objection may be withdrawn only with the court's approval.

AB773,17 Section 17. 803.08 (12) to (15) of the statutes are created to read:

AB773,17,3 803.08 (12) Interlocutory appeal of class certification. (a) When practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. If the court finds that the action should be maintained as a class action, it shall certify the action accordingly on the basis of a written decision setting forth all reasons why the action may be maintained and describing all evidence in support of the determination. An order under this subsection may be altered, amended, or withdrawn at any time before the decision on the merits. The court may direct appropriate notice to the class.

AB773,17,10 (b) An appellate court shall hear an appeal of an order granting or denying class action certification, or denying a motion to decertify a class action, if a notice of appeal is filed within 14 days after entry of the order. During the pendency of an appeal under this subsection, all discovery and other proceedings shall be stayed, except that the trial court shall retain sufficient jurisdiction over the case to consider and implement a settlement of the action if a settlement is reached between the parties.

AB773,17,13 (13) Class counsel. (a) Unless otherwise provided by law, a court that certifies a class shall appoint class counsel. In appointing class counsel, the court shall consider all of the following:

AB773,17,15 1. The work that counsel has done in identifying or investigating potential claims in the action.

AB773,17,17 2. Counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action.

AB773,17,18 3. Counsel's knowledge of the applicable law.

AB773,17,19 4. The resources that counsel will commit to representing the class.

AB773,17,20 (b) In appointing class counsel, the court may do any of the following:

AB773,17,22 1. Consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class.

AB773,17,24 2. Order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs.

AB773,18,2 3. Include in the appointing order provisions about the award of attorney's fees or nontaxable costs under sub. (14).

AB773,18,3 4. Issue further orders in connection with the appointment.

AB773,18,5 (c) Class counsel must fairly and adequately represent the interests of the class.

AB773,18,9 (d) When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is found to be adequate under pars. (a) and (c). If more than one adequate applicant seeks appointment, the court shall appoint the applicant best able to represent the interests of the class.

AB773,18,11 (e) The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.

AB773,18,14 (14) Attorney fees and nontaxable costs. In a certified class action, the court may award reasonable attorney fees and nontaxable costs that are authorized by law or by the parties' agreement. All of the following procedures apply:

AB773,18,18 (a) A claim for an award shall be made by motion, subject to the provisions of this subsection, at a time designated by the court. Notice of the motion shall be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.

AB773,18,20 (b) A class member, or a party from whom payment is sought, may object to the motion.

AB773,18,22 (c) The court may hold a hearing at which it finds facts and states its legal conclusions regarding fees and costs, in accordance with s. 805.17 (2).

AB773,18,24 (d) The court may refer issues related to the amount of the award to a referee, as provided in s. 805.06.

AB773,19,3 (15) Prohibition of certain class actions. No claim may be maintained against the state or any other party under this section if the relief sought includes the refund of or damages associated with a tax administered by the state.

AB773,18 Section 18. 804.01 (1) of the statutes is amended to read:

AB773,19,11 804.01 (1) Discovery methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under sub. (3), and except as provided in s. ss. 804.015 and 804.09, the frequency of use of these methods is not limited.

AB773,19 Section 19. 804.01 (2) (am) of the statutes is created to read:

AB773,19,14 804.01 (2) (am) Limitations. Upon the motion of any party, the court shall limit the frequency or extent of discovery if it determines that one of the following applies:

AB773,19,16 1. The discovery sought is cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.

AB773,19,21 2. The burden or expense of the proposed discovery outweighs its likely benefit or is not proportional to the claims and defenses at issue considering the needs of the case, the amount in controversy, the parties' resources, the complexity and importance of the issues at stake in the action, and the importance of discovery in resolving the issues.

AB773,20 Section 20. 804.01 (2) (bg) of the statutes is created to read:

AB773,20,3 804.01 (2) (bg) Third party agreements. Except as otherwise stipulated or ordered by the court, a party shall, without awaiting a discovery request, provide to the other parties any agreement under which any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on and sourced from any proceeds of the civil action, by settlement, judgment, or otherwise.

AB773,21 Section 21. 804.01 (2) (e) 1. of the statutes is renumbered 804.01 (2) (e) 1r.

AB773,22 Section 22. 804.01 (2) (e) 1g. of the statutes is created to read:

AB773,20,9 804.01 (2) (e) 1g. A party is not required to provide discovery of any of the following categories of electronically stored information absent a showing by the moving party of substantial need and good cause, subject to a proportionality assessment under par. (am) 2.:

AB773,20,12 a. Data that cannot be retrieved without substantial additional programming or without transforming it into another form before search and retrieval can be achieved.

AB773,20,14 b. Backup data that are substantially duplicative of data that are more accessible elsewhere.

AB773,20,16 c. Legacy data remaining from obsolete systems that are unintelligible on successor systems.

AB773,20,24 d. Any other data that are not available to the producing party in the ordinary course of business and that the party identifies as not reasonably accessible because of undue burden or cost. In response to a motion to compel discovery or for a protective order, the party from whom discovery is sought is required to show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may order discovery from such sources only if the requesting party shows good cause, considering the limitations of par. (am). The court may specify conditions for the discovery.

AB773,23 Section 23. 804.01 (2) (e) 2. of the statutes is amended to read:

AB773,21,2 804.01 (2) (e) 2. If a party fails or refuses to confer as required by subd. 1. 1r., any party may move the court for relief under s. 804.12 (1).

AB773,24 Section 24. 804.01 (2) (e) 3. of the statutes is amended to read: