05 LC 33
0527ER
Senate
Bill 19
By:
Senators Johnson of the 1st, Balfour of the 9th, Wiles of the 37th, Hill of the
32nd, Williams of the 19th and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Code Section 9-11-23 of the Official Code of Georgia Annotated, relating
to class actions, so as to provide for procedures, conditions, and limitations
on certification of class actions; to provide for appellate procedures relating
to class actions certification; to provide for related matters; to provide an
effective date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Code
Section 9-11-23 of the Official Code of Georgia Annotated, relating to class
actions, is amended by striking subsection (f), and inserting in lieu thereof
the following:
"(f)(1)
The
appropriate appellate court may in its discretion permit an appeal from an order
of a trial court granting or denying class action certification under this Code
section if application is made to it within ten days after entry of the order.
An appeal does not stay proceedings in the trial court unless the trial judge or
the appellate court so orders.
No class of
civil litigants shall be certified or recognized by any court of this state
unless there shall have been compliance with the procedures for certification of
the class set forth in this subsection.
(2)
As soon as practicable after the commencement of an action in which claims or
defenses are purported to be asserted on behalf of or against a class, or as
soon as practicable after such assertions in an amended pleading, but in no
event prior to the time allowed by law for each party, including, but not
limited to, counterclaim, cross-claim, and third-party defendants to file an
answer or other pleading responsive to the complaint, counterclaim, cross-claim,
or third-party claim, the court shall hold a conference among all named parties
to the action for the purpose of establishing a schedule, in the same manner and
to the same extent contemplated by Code Section 9-11-16, for any discovery in
which the parties may wish to engage which is both allowed by Code Section
9-11-26 through Code Section 9-11-37 and germane to the issue of whether the
requested class should or should not be certified. At this conference, the court
may set a date for a hearing on the issue of class certification, but such
hearing may not be set sooner than 90 days after the date on which the court
issues its scheduling order pursuant to the conference unless a shorter time is
agreed to by all parties.
(3)
Upon motion of any party, the court shall, except for good cause shown and even
then only if the interests of justice require that it not do so, stay all
discovery directed solely to the merits of the claims or defenses in the action
until the court shall have made its decision regarding certification of the
class. In considering such a motion, the court shall consider whether any
prejudice to the plaintiff exists because of the filing by the defendant of a
motion for summary judgment pursuant to Code Section 9-11-56 prior to the
court´s decision regarding class certification.
(4)
The court shall, on motion of any party, hold a full evidentiary hearing on
class certification. The hearing shall be recorded, and all named parties to the
action shall be given notice of the date, time, and place of the hearing by
written notification given to the party´s attorney, or if appearing pro se,
to the party, no later than 60 days prior to the date set for the hearing. At
the hearing, the parties shall be allowed to present, in the same manner as at
trial, any admissible evidence in support of or in opposition to the
certification of the class.
(5)
When deciding whether a requested class is to be certified, the court shall
determine, by employing a rigorous analysis, if the party or parties requesting
class certification have proved its or their entitlement to class certification
under this Code section. The burden of coming forward with such proof shall at
all times be on the party or parties seeking certification, and if such proof
shall not have been adduced, the court shall not order certification of the
class. In making this determination, the court shall analyze all factors
required by this Code section for certification of a class and shall not order
certification unless all such factors shall have been established. In announcing
its determination, the court shall place in the record of the action a written
order addressing all such factors and specifying the evidence, or lack of
evidence, on which the court has based its decision with regard to whether each
such factor has been established. In so doing, the court may treat a factor as
having been established if all parties to the action have so stipulated on the
record and if the court shall be satisfied that such factor could be proven to
have been established.
(6)
Nothing in this Code section shall affect, or be construed to affect, any
provision of Code Section 9-11-12 or Code Section 9-11-56.
(g)
A court´s order certifying a class or refusing to certify a class action
shall be appealable in the same manner as a final order to the appellate court
which would otherwise have jurisdiction over the appeal from a final order in
the action. Such appeal may only be filed within 42 days of the order certifying
or refusing to certify the class. The filing of such appeal, the failure to file
an appeal, or the affirmance of the certification or denial order shall in no
way affect the right of any party, after the entry of final judgment, to appeal
the earlier certification of, or refusal to certify, the class. If the appeal is
not the first appeal taken by the party, the subsequent appeal shall be based
upon the record at the time of final judgment and shall be considered by the
court only to the extent that either the facts or controlling law relevant to
certification have changed from that which existed or controlled at the time of
the earlier certification or refusal to certify. During the pendency of any such
appeal, the action in the trial court shall be stayed in all respects. Following
adjudication on appeal or, if the initial appeal is to an intermediate appellate
court, adjudication of the action on any writ of certiorari granted by the
Supreme Court of Georgia, if the class is not to be certified, the stay in the
trial court shall automatically dissolve and the trial court may proceed to
adjudicate any remaining individual claims or defenses. If, after such appeal or
procedure on writ of certiorari, the class is to be certified, the stay shall
likewise dissolve and the trial court shall proceeed with adjudication on the
merits. Such certification shall constitute a final and binding determination
with respect to that class for the remainder of the adjudication of the
action."
SECTION
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.