Group IV: Parties · Last amended 2019 · Last verified July 14, 2026
This rule incorporates the 2018 federal amendments to Federal Rule of Civil Procedure 23, but maintains the local distinction in section (f) addressing appeals.
This rule is identical to Federal Rule of Civil Procedure 23, as amended in 2007 and 2009, except that 1) language in subsection (c)(2)(B)(v) clarifies that there is a deadline for requesting exclusion from the class; and 2) in accordance with Ford v. ChartOne, 834 A.2d 875 (D.C. 2003), section (f) has been modified to indicate that the filing of an appeal is governed by D.C. Code § 11-721 (d) (2012 Repl.) and the appellate rules. The provisions allowing the court to shift the cost of notice, which were unique to the Superior Court rule, have been deleted.
If a class action is settled and residual funds remain after all identified members of the class have received their proper distribution, the court may turn to conventional principles of equity to resolve the case. Traditionally, there are four ways by which a court may distribute the residual funds: 1) pro rata distribution to the class members; 2) reversion to the defendant; 3) escheat to the government; and 4) cy pres distribution. See, e.g., Powell v. Georgia-Pacific Corp., 119 F.3d 703, 706 (8th Cir. 1997). It is generally understood that “neither party has a legal right to the unclaimed funds.” Id. See also Diamond Chem. Co. v. Akzo Nobel Chems. B.V., 517 F. Supp. 2d 212, 217 (D.D.C. 2007). When determining which method of distribution is most appropriate, the court’s choice “should be guided by the objectives of the underlying statute and the interests of the silent class members.” Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1307 (9th Cir. 1990).
In the case of a cy pres distribution of the residual funds, the court should first consider whether the funds can be distributed in a manner that is closely related to the original purpose. See Superior Beverage Co. v. Owens-Illinois, Inc., 827 F. Supp. 477, 477-80 (N.D. Ill. 1993). If no such distribution is possible, the court may use its equitable powers to consider “other public interest purposes by educational, charitable, and other public service organizations,” including “charitable donations . . . to support non-profit provision of pro bono legal services.” Jones v. Nat’l Distillers, 56 F. Supp. 2d 355, 359 (S.D.N.Y. 1999) (citing Superior Beverage Co., 827 F. Supp. at 478-79) (internal quotation marks omitted). The court may solicit applications for cy pres grants by public notice and, if necessary, hold hearings to give the applicants a chance to be heard. Alternatively, the court may allocate some or all of the residual funds to an organization such as the D.C. Bar Foundation or other local bar associations that have already implemented procedures for the distribution of funds to public service organizations.
Rule 23 is identical to Federal Rule of Civil Procedure 23 except for certain changes in subsections (c)(1) and (c)(2) which specifically authorize the judge to shift the costs of notice to the defendant, in whole or in part, under limited circumstances. In order to make this determination relating to costs of notice, the judge is further authorized to conduct a hearing, pursuant to Rule 23-I(c)(3), at which all relevant factors, including the likelihood of success on the merits, can be considered. The amendment, while essentially retaining the previous Superior Court procedure, was made necessary by Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) which held that under the language of Fed. R. Civ. P. 23, the costs of notice could not be shifted to the defendant, except perhaps in cases involving a fiduciary, and, the Court could not make a preliminary determination of the merits of a case. The specific changes are the deletion of the phrase, “As soon as practicable ...” in the 1st sentence of subsection (c)(1) and the addition of the last sentence in subsection (c)(2).
Before any class action can proceed, Rule 23(a) requires four things: the class must be so numerous that joining every member individually would be impracticable, there must be questions of law or fact common to the class, the representative parties' claims or defenses must be typical of the class as a whole, and the representative parties must adequately protect the interests of the class. Only once all four are satisfied does Rule 23(b) ask which of three categories the case falls into: cases where separate lawsuits would risk inconsistent rulings that create incompatible standards of conduct for the opposing party, or would as a practical matter dispose of absent members' interests; cases where the opposing party has acted or refused to act on grounds affecting the whole class, making classwide injunctive or declaratory relief appropriate; or cases where common questions predominate over individual ones and a class action is the superior way to resolve the controversy, weighed against factors like members' interest in controlling their own suits, existing related litigation, the desirability of one forum, and how manageable the class action would be.
Rule 23(c) requires the court to decide certification at an early practicable point, defining the class and its claims, issues, or defenses and appointing class counsel; that order can be altered or amended before final judgment. Classes certified under the third category must receive the best notice practicable, including individual notice to identifiable members by mail, electronic means, or other appropriate methods, written in plain language covering the nature of the action, the class definition, the claims or defenses at stake, the right to appear through one's own attorney, the right and deadline to opt out, and the binding effect of the eventual judgment. A case can also be certified as to particular issues only, or divided into subclasses, and the final judgment must identify who is bound by it.
Rule 23(d) lets the court manage the litigation with orders covering the course of proceedings, additional notice to class members about key developments, conditions on the representative parties, or amending the pleadings to drop improper allegations about absent members — and these can be combined with ordinary scheduling orders. Because a class member's rights can be resolved without that member ever appearing individually, Rule 23(e) requires court approval before a certified class's claims can be settled, dismissed, or compromised. The parties must give the court enough information to decide whether notice to the class is warranted, and if a proposed settlement is likely to be approved and the class likely certified, notice must go out. Approval itself requires a hearing and findings that the representatives and class counsel adequately represented the class, that the deal was negotiated at arm's length, that the relief is adequate given the costs and risks of continued litigation, and that the proposal treats members equitably relative to one another; class members may object with specificity, and no one can be paid to withdraw an objection or drop an appeal without the court's sign-off.
Rule 23(f) allows an appeal from a Superior Court order granting or denying certification under the procedure the District of Columbia Code and the Court of Appeals rules set out for that kind of interlocutory review. Rule 23(g) requires the court to appoint class counsel, considering the work already invested in identifying and investigating the claims, relevant experience, knowledge of the applicable law, and the resources counsel will commit, and it may name interim counsel before certification is even decided. Rule 23(h) lets the court award reasonable attorney's fees and costs in a certified class action by motion, with notice to all parties and, for class counsel's own fee request, to the class itself, followed by findings of fact and conclusions of law and, if needed, referral of the amount to a master or magistrate judge.
Rule 23(a) requires numerosity — enough members that joining them individually would be impracticable — commonality of law or fact, typicality between the representative parties' claims and the class's, and adequate representation of the class's interests by those representative parties.
A class can proceed where separate suits would risk inconsistent rulings or would practically dispose of absent members' interests, where the opposing party's uniform conduct makes classwide injunctive or declaratory relief appropriate, or where common questions predominate over individual ones and a class action is the superior method of resolving the dispute.
Rule 23(c)(2)(B) requires the notice, sent by mail, electronic means, or other appropriate methods, to state in plain language the nature of the action, the class definition, the claims or defenses involved, the right to appear through one's own attorney, the right and deadline to request exclusion, and the binding effect of a class judgment.
Yes, but only with court approval. Rule 23(e) requires a hearing and findings that the settlement is adequate and treats class members equitably, and, for classes previously certified for damages, may require a renewed opportunity for members to opt out.
Rule 23(f) allows an appeal from an order granting or denying certification, following the procedure set out in the District of Columbia Code's provision on that kind of interlocutory appeal and the District of Columbia Court of Appeals Rules.