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60-223. Class actions. (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) The class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

(b) Types of class actions. A class action may be maintained if the prerequisites of subsection (a) are satisfied and if:

(1) Prosecuting separate actions by or against individual members would create a risk of: (A) Inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; or

(2) 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; or

(3) 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. The matters pertinent to these findings include: (A) The class member's interest in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.

(c) Certification order; notice to class members; judgment; issues classes; subclasses. (1) Certification order. (A) Time to issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.

(B) Defining the class; appointing class counsel. An order that certifies a class action must define the class and the class claims, issues or defenses, and must appoint class counsel under subsection (g).

(C) Altering or amending the order. An order that grants or denies class certification may be altered or amended before final judgment.

(2) Notice. (A) For subsection (b)(1) or (b)(2) classes. For any class certified under subsection (b)(1) or (b)(2), the court may direct appropriate notice to the class.

(B) For subsection (b)(3) classes. For any class certified under subsection (b)(3), the court must 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 must clearly and concisely state in plain, easily understood language:

(i) The nature of the action;

(ii) the definition of the class certified;

(iii) the class claims, issues or defenses;

(iv) that a class member may enter an appearance through an attorney if the member so desires;

(v) that the court will exclude from the class any member who requests exclusion;

(vi) the time and manner for requesting exclusion; and

(vii) the binding effect of a class judgment on members under subsection (c)(3).

(3) Judgment. Whether or not favorable to the class, the judgment in a class action must:

(A) In an action maintained as a class action under subsection (b)(1) or (b)(2), include and describe those whom the court finds to be class members; and

(B) in an action maintained as a class action under subsection (b)(3), include and specify or describe those to whom the notice provided in subsection (c)(2) was directed, who have not requested exclusion, and whom the court finds to be class members.

(4) Particular issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.

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

(d) Conducting the action. (1) In general. In conducting an action under this section, the court may issue orders that:

(A) Determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;

(B) require, to protect class members and fairly conduct the action, giving appropriate notice to some or all class members of:

(i) Any step in the action;

(ii) the proposed extent of the judgment; or

(iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;

(C) impose conditions on the representative parties or on intervenors;

(D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or

(E) deal with similar procedural matters.

(2) Combining and amending orders. An order under subsection (d)(1) may be altered or amended from time to time and may be combined with an order under K.S.A. 60-216, and amendments thereto.

(e) 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. The following procedures apply to a proposed settlement, voluntary dismissal or compromise:

(1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal;

(2) if the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable and adequate;

(3) the parties seeking approval must file a statement identifying any agreement made in connection with the proposal;

(4) if the class action was previously certified under subsection (b)(3), 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; and

(5) any class member may object to the proposal if it requires court approval under this subsection (e); the objection may be withdrawn only with the court's approval.

(f) Appeals. The court of appeals may permit an appeal from an order granting or denying class action certification under this section if application is made to the court within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.

(g) Class counsel. (1) Appointing class counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:

(A) Must consider:

(i) The work counsel has done in identifying or investigating potential claims in the action;

(ii) counsel's experience in handling class actions, other complex litigation and the types of claims asserted in the action;

(iii) counsel's knowledge of the applicable law; and

(iv) the resources that counsel will commit to representing the class;

(B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;

(C) may 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;

(D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under subsection (h); and

(E) may make further orders in connection with the appointment.

(2) Standard for appointing class counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under subsection (g)(1) and (g)(4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.

(3) Interim counsel. 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.

(4) Duty of class counsel. Class counsel must fairly and adequately represent the interests of the class.

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

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

(2) a class member, or a party from whom payment is sought, may object to the motion;

(3) the court may hold a hearing and must find the facts and state its legal conclusions under subsection (a) of K.S.A. 60-252, and amendments thereto; and

(4) the court may refer issues related to the amount of the award to a special master as provided in K.S.A. 60-253, and amendments thereto.

History: L. 1963, ch. 303, 60-223; amended by Supreme Court order dated July 17, 1969; L. 1980, ch. 171, § 1; L. 1997, ch. 173, § 10; L. 2004, ch. 21, § 1; L. 2010, ch. 135, § 90; July 1.

Source or prior law:

(a). G.S. 1868, ch. 80, § 38; L. 1909, ch. 182, § 37; R.S. 1923, 60-413.

Cross References to Related Sections:

Intervention, see 60-224.

Joinder of parties, see 60-219, 60-220.

Permissive intervention, see 60-224 (b).

Real party in interest, see 60-217 (a).

Law Review and Bar Journal References:

Discussion of wrongful death act, Robert C. Casad, 13 K.L.R. 515, 527 (1965).

"The Jurisdiction and Venue of Federal Courts in Class Actions," Jon F. Love, 7 W.L.J. 347, 350 (1968).

"A Glimpse at a Plaintiff's Remedies Under Kansas' Antitrust Laws," Kenton C. Granger, 8 W.L.J. 1, 10 (1968).

Paragraph (a) (3); survey of business association law, William E. Treadway, 17 K.L.R. 181, 185 (1968).

Jurisdiction over nonresident plaintiffs in class actions, 17 W.L.J. 382, 389, 390 (1978).

"Survey of Kansas Law: Oil and Gas," Edward Larson, 27 K.L.R. 277, 279 (1979).

"Survey of Kansas Law: Civil Procedure," 29 K.L.R. 449, 478 (1981).

"The Kansas Class Action Device," Mark D. Hinderks, 31 K.L.R. 305, 306, 307, 308, 309, 310, 311, 313, 314, 315, 316 (1983).

"Recent Development in Kansas Civil Procedure," E. Elinor P. Schroeder, 32 K.L.R. 515, 531 (1984).

"The Supreme Court Meets the Bride of Frankenstein: Phillips Petroleum Co. v. Shutts and the State Multistate Class Action," John E. Kennedy, 34 K.L.R. 255, 278 (1985).

"Class Action Jurisdiction Over Nonresident Plaintiffs—Shutts v. Phillips Petroleum Co. (Shutts II)," Steven K. Linscheid, 33 K.L.R. 525, 526, 529 (1985).

"Equal Protection: The Kansas Supreme Court Upholds Constitutionality of Tax Rate Disparity," Stephanie L. Pierce, 37 W.L.J. 203 (1997).

"The Tower of Babel Revisited: The U.S. Supreme Court Decertifies One of the Largest Mass Tort Classes in History," S. Charles Neill, 37 W.L.J. 793 (1998).

"What's your authority? And other issues in oral settlement agreements," Daniel E. Blegen, 69 J.K.B.A. No. 5, 26 (2000).

"When Controlling Shareholders Squeeze Out Minority Shareholders by Reverse Stock Split in Close Corporations—A proposal for Kansas Courts," John T. Richer, 50 K.L.R. 545 (2002).

"Waiting for Judgment Day: Negotiating the Interlocutory Appeal in 8 Easy Lessons," Jonathan Paretsky, 78 J.K.B.A. No. 4, 30 (2009).

"The Continued Need for Safeguards in the Kansas Class Certification Procedure: An Overview of Critchfield Physical Therapy v. The Taranto Group," Sarah Warner, K.D.J. Winter (2010).

Attorney General's Opinions:

Civil procedure; class actions; attorney fees. 94-47.

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-413 and the 1961 Supplement thereto.

1. Mentioned; held no error in trial court's striking allegations asserting class action. Schupbach v. Continental Oil Co., 193 K. 401, 407, 394 P.2d 1.

2. Subsection (a) (3) construed as to unincorporated associations. Kansas Private Club Assn. v. Londerholm, 196 K. 1, 3, 4, 408 P.2d 891.

3. Mentioned; action to enjoin special assessment. Schulenberg v. City of Reading, 196 K. 43, 48, 410 P.2d 324.

4. Discussed; mandamus proceedings concerning assessment of gas leaseholds. Mobil Oil Corporation v. McHenry, 200 K. 211, 234, 248, 436 P.2d 982.

5. Action properly brought by plaintiff against a member of an unincorporated association. Fast v. Kahan, 206 K. 682, 687, 481 P.2d 958.

6. Action properly stricken; exclusive remedy from adverse rulings of state appeals committee of state board of social welfare is appeal to district court. Gordon v. Harder, 211 K. 611, 507 P.2d 341.

7. Cited; no class action presented regardless of allegations in petition to that effect. Rhodes v. Harder, 211 K. 820, 825, 508 P.2d 959. Motion to modify decision; portion of original opinion withdrawn: 212 K. 500, 501, 512 P.2d 354.

8. Action contesting validity of no fault insurance act (40-3101 et seq.); act constitutional. Manzanares v. Bell, 214 K. 589, 592, 522 P.2d 1291.

9. Failure to plead action which may be prosecuted as class action not fatal to action based on individual rights. Cherry v. Vanlahi, Inc., 216 K. 195, 199, 531 P.2d 66.

10. Plaintiff may not represent a class of which he or she is not a member. Winter v. Kansas Hospital Service Ass'n, Inc., 1 K.A.2d 64, 66, 67, 69, 562 P.2d 98.

11. Questions of fact or law common to the plaintiff class; class was not unmanageable. Gray v. Amoco Production Co., 1 K.A.2d 338, 344, 345, 564 P.2d 579. Reversed on appeal for further proceedings as to computation of interest: 223 K. 441, 573 P.2d 1080.

12. Class action commenced hereunder dismissed; not an issue. Ritchie v. McGrath, 1 K.A.2d 482, 571 P.2d 17.

13. "Coextensiveness" does not require identical interests; class members need only share objectives and legal or factual positions. Helmley v. Ashland Oil, Inc., 1 K.A.2d 532, 533, 534, 536, 571 P.2d 345.

14. Trial court did not err in conducting class action to enjoin construction of mortuary on land dedicated as cemetery; coextensiveness of interests. Connolly v. Frobenius, 2 K.A.2d 18, 22, 23, 24, 574 P.2d 971.

15. Jurisdiction is proper over nonresident plaintiffs in a class action if procedural due process guarantees are met. Shutts, Executor v. Phillips Petroleum Co., 222 K. 527, 538, 539, 545, 546, 547, 550, 553, 554, 555, 556, 557, 558, 567 P.2d 1292.

16. Class action on behalf of inmates of jail challenging conditions of confinement proper; not rendered moot by transfers to other institutions. Beaver v. Chaffee, 2 K.A.2d 364, 365, 370, 371, 579 P.2d 1217.

17. If named plaintiff's claim becomes moot prior to motion for class certification, action must be dismissed. Steele v. Security Benefit Life Ins. Co., 226 K. 631, 633, 635, 637, 602 P.2d 1305.

18. Class action to enjoin increased employee contributions under police and fire pension plans; sections, as applied, held unconstitutional. Singer v. City of Topeka, 227 K. 356, 607 P.2d 467.

19. Class action to enjoin enforcement of statutes retroactively increasing retirement contributions. Brazelton v. Kansas Public Employees Retirement System, 227 K. 443, 444, 607 P.2d 510.

20. Regulations adopted pursuant to 39-708c held invalid; remanded to determine propriety of class action. Country Club Home, Inc. v. Harder, 228 K. 756, 772, 620 P.2d 1140. Decision modified: 228 K. 802, 623 P.2d 505.

21. Dismissal of class action upheld where defendant was joined after certification of class. Brueck v. Krings, 6 K.A.2d 622, 623, 624, 631 P.2d 1233 (1981).

22. If court refuses to certify class on basis of lack of numerosity, potential members are in same position for purpose of filing separate actions as if named in original action. Waltrip v. Sidwell Corp., 234 K. 1059, 1064, 678 P.2d 128 (1984).

23. Prerequisites of class action in action on behalf of oil and gas royalty owners considered; jurisdiction over nonresident members considered. Shutts v. Phillips Petroleum Co., 235 K. 195, 206, 212, 679 P.2d 1159 (1984); affirmed in part and reversed in part, 105 S.Ct. 2965, 2975, 2976 (1985).

24. Commonality met where plaintiff class were royalty owners and all affected by same actions of defendant. Wortman v. Sun Oil Co., 236 K. 266, 268, 690 P.2d 385 (1984).

25. Termination of consent judgment regarding construction of new county jail and minimum standards for administrative operations examined. Beaver v. Kingman, 246 K. 145, 146, 785 P.2d 998 (1990).

26. Whether court abused discretion in certifying class action and creating subclasses examined. Sternberger v. Marathon Oil Co., 257 K. 315, 343, 894 P.2d 788 (1995).

27. Trial court failed to fully determine factual issues relating to prerequisites for class certification. Dragon v. Vanguard Industries, Inc., 277 K. 776, 89 P.3d 908 (2004).

28. Certification of class action affirmed. Farrar v. Mobil Oil Corp., 43 K.A.2d 871, 234 P.3d 19 (2010).

29. Term "end user" used to define class in class action suit against facsimile sender not precise enough to determine parties included in the class. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 K. 285, 263 P.3d 767 (2011).


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