Letter to Governor in support to amend the civil practice law and rules, in relation to class actions

REPORT

REPORT BY THE COUNCIL ON JUDICIAL ADMINISTRATION, LITIGATION COMMITTEE, AND STATE COURTS OF SUPERIOR JURISDICTION

The Honorable Kathy Hochul
Governor of the State of New York
Executive Chamber
New York State Capitol Building
Albany, NY 12224

Re: Support for A.4721 (AM Solages) / S.5137 (Sen. Gonzalez), to amend the civil practice law and rules, in relation to class actions

Dear Governor Hochul:

On behalf of the New York City Bar Association s Council on Judicial Administration, State Courts of Superior Jurisdiction Committee and Litigation Committee, we write to express our support for A.4721 (Solages) / S.5137 (Gonzalez) ( the Bill ).

The Bill would statutorily overrule a limitation on class actions directed at government operations or government agencies. Section 1 of the Bill proposes adding a sentence to CPLR 902 to formally rescind the rule. The Bill is consistent with proposals approved by the New York City Bar Association, and the Committees encourage having the Bill signed into law. The Bill has been passed by both the Assembly and the Senate, and its adoption would help modernize the administration of class actions in the courts of the State of New York.

The Government Operations Rule is a common law doctrine pre-dating the enactment of Article 9, which disfavors class actions against governmental entities. This judicially-developed rule has been slowly eroded over the last twenty years. Recent decisions of the Court of Appeals and Appellate Divisions evaluate motions for class certification in such cases under the general criteria laid out in Article 9 and the Federal Rules.

City of New York v. Maul, 14 N.Y.3d 499 (2010) is an example of a Court of Appeals decision. In Maul the Court noted that CPLR Article 9 was designed to set up a flexible, functional scheme whereby class actions could qualify without the present undesirable and socially detrimental restrictions. Id. at 509 (quoting a 1975 Judicial Conference report). In the Appellate Division, a good illustration is provided by Hurrell-Haring v. State, 81 A.D.3d 69, 75 (3d Dep t 2011). The Third Department cited Maul and reversed the trial court s application of the government operations rule, holding that a class action was superior to other methods of adjudication, because certification would eliminate multiple lawsuits with duplicative claims and potentially inconsistent rulings, and because the court could not find a single case involving claims of systemic deficiencies which seek widespread, systematic reform that has not been maintained as a class action . A second Appellate Division decision is found in Watts v. Wing, 308 A.D.2d 391, 392 (1st Dep t 2003). In Watts, the First Department held the government operations rule inapplicable where the class was composed of both those for whom harm is prospective and those for whom the harm already had occurred. [P]recedent in an individual plaintiff s favor, the Court noted, would be of no assistance to the remaining plaintiffs.

Article 9 is modeled after Rule 23 of the Federal Rules of Civil Procedure. The federal courts regularly permit class certification where plaintiffs seek to require governmental defendants to take affirmative steps to remedy unlawful conditions and implement lawful operations, and a wide-ranging course of conduct encompassing various practices may be involved. Fed. R. Civ. P. 23(b)(2).

Aside from a relatively minor amendment to CPLR 909 in 2011, Article 9 is unchanged since enactment. Modernizing the Article to match the complexity of contemporary litigation is overdue, and this Bill is a step in the right direction.

The Committees support this Bill, which will continue the trend in recent years to improve and modernize the administration of justice in New York. For the reasons set forth above, we urge you to sign A.4721/S.5137 into law.

Respectfully,

Fran R. Hoffinger, Chair
Council on Judicial Administration

Seth D. Allen, Chair
Litigation Committee

Amy D. Carlin, Chair
State Courts of Superior Jurisdiction Committee

Cc:
Senator Kristen Gonzalez
Assembly Member Michaelle C. Solages