Mont. R. Civ. P. 23

(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 Rule 23(a) is satisfied

and if:

(1) prosecuting separate actions by or against individual class 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;

(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 the 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 the findings include:

(A) the class members’ interests 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 Rule 23(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 (b)(1) or (b)(2) Classes. For any class certified under Rule 23(b)(1) or

(b)(2), the court may direct appropriate notice to the class.

(B) For (b)(3) Classes. For any class certified under Rule 23(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 Rule

23(c)(3).

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

must:

(A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe

those whom the court finds to be class members; and

(B) for any class certified under Rule 23(b)(3), include and specify or describe

those to whom the Rule 23(c)(2) notice 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 rule.

(d) Conducting the Action.

(1) In General. In conducting an action under this rule, 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 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 Rule 23(d)(1) may be altered

or amended from time to time and may be combined with an order under Rule 16.

(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 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 Rule 23(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.

(5) Any class member may object to the proposal if it requires court approval under

this subdivision (e); the objection may be withdrawn only with the court’s approval.

(f) Appeals. Appeal may be filed from an order granting or denying class action

certification under this rule, or an order finally and definitively rejecting a proposed class

settlement, by notice of appeal filed within the time allowed for appeals under the Montana

Rules of Appellate Procedure. An appeal does not stay proceedings in the district court

unless the district judge or supreme court 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) may 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 fees and

nontaxable costs;

(D) may include in the appointing order provisions about the award of attorney

fees or nontaxable costs under Rule 23(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 Rule 23(g)(1) and (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 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. The following procedures apply:

(1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the

provisions of this subdivision (h), 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 Rule 52(a).

(i) Disposition of Residual Funds.

(1) “Residual Funds” are funds that remain after the payment of all approved class

member claims, expenses, litigation costs, attorneys’ fees and other court-approved

disbursements. This rule does not prohibit the trial court from approving a settlement

that does not create residual funds.

(2) “Access to Justice Organization” means a Montana non-profit entity whose

purpose is to support activities and programs that promote access to the Montana

civil justice system.

(3) Any order entering a judgment or approving a proposed compromise of a class

action certified under this rule that establishes a process for identifying and

compensating members of the class shall provide for disbursement of residual funds.

In matters where the claims process has been exhausted and residual funds remain,

not less than fifty percent (50%) of the residual funds shall be disbursed to an Access

to Justice Organization to support activities and programs that promote access to the

Montana civil justice system. The court may disburse the balance of any residual

funds beyond the minimum percentage to an Access to Justice Organization or to

another non-profit entity for purposes that have a direct or indirect relationship to the

objectives of the underlying litigation or otherwise promote the substantive or

procedural interests of members of the certified class.