(2) Types of class actions.
A class action may be maintained if sub. (1)
is satisfied and if the court finds that any of the following are satisfied:
Prosecuting separate actions by or against individual class members would create a risk of either of the following:
Inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.
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.
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.
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 all of the following:
The class members' interests in individually controlling the prosecution or defense of separate actions.
The extent and nature of any litigation concerning the controversy already begun by or against class members.
The desirability or undesirability of concentrating the litigation of the claims in the particular forum.
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.
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 sub. (12)
Altering or amending the order.
An order that grants or denies class certification may be altered or amended before final judgment.
For sub. (2) (a) or (b) classes.
For any class certified under sub. (2) (a)
, the court may direct appropriate notice to the class.
For sub. (2) (c) classes.
For any class certified under sub. (2) (c)
, 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, all of the following:
That a class member may enter an appearance through an attorney if the member so desires.
That the court will exclude from the class any member who requests exclusion.
Whether or not favorable to the class, the judgment in a class action must do one of the following:
For any class certified under sub. (2) (a)
, include and describe those whom the court finds to be class members.
For any class certified under sub. (2) (c)
, include and specify or describe those to whom the notice under sub. (4)
was directed, who have not requested exclusion, and whom the court finds to be class members.
(6) Particular issues.
Notwithstanding ss. 805.05 (2)
and 805.09 (2)
, when appropriate, an action may be brought or maintained as a class action with respect to particular issues.
When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.
In conducting an action under this section, the court may issue orders that do any of the following:
Determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument.
Require — to protect class members and fairly conduct the action — giving appropriate notice to some or all class members of any of the following:
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.
Impose conditions on the representative parties or on intervenors.
Require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.
Combining and amending orders.
An order under sub. (8) (a)
may be altered or amended from time to time and may be combined with an order under s. 802.10
(9) 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. All of the following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
The court must direct notice in a reasonable manner to all class members who would be bound by the proposal.
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.
The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
If the class action was previously certified under sub. (2) (c)
, 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.
Any class member may object to the proposal if it requires court approval under sub. (9)
; the objection may be withdrawn only with the court's approval.
“Residual funds" means funds that remain after the payment of all approved class member claims, expenses, litigation costs, attorney fees, and other court-approved disbursements in an action under this section.
“WisTAF" means the Wisconsin Trust Account Foundation, Inc.
Any order entering a judgment or approving a proposed compromise of a class action that establishes a process for identifying and compensating members of the class shall provide for disbursement of any residual funds. In class actions in which residual funds remain, not less than 50 percent of the residual funds shall be disbursed to WisTAF to support direct delivery of legal services to persons of limited means in non-criminal matters. The circuit court may disburse the balance of any residual funds beyond the minimum percentage to WisTAF 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.
This subsection does not prohibit the trial court from approving a settlement that does not create residual funds.
(11) Interlocutory appeal of class certification. 803.08(11)(a)(a)
When practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. If the court finds that the action should be maintained as a class action, it shall certify the action accordingly on the basis of a written decision setting forth all reasons why the action may be maintained and describing all evidence in support of the determination. An order under this subsection may be altered, amended, or withdrawn at any time before the decision on the merits. The court may direct appropriate notice to the class.
An appellate court shall hear an appeal of an order granting or denying class action certification, or denying a motion to decertify a class action, if a notice of appeal is filed within 14 days after entry of the order. During the pendency of an appeal under this subsection, all discovery and other proceedings shall be stayed, except that the trial court shall retain sufficient jurisdiction over the case to consider and implement a settlement of the action if a settlement is reached between the parties.
Appointing class counsel.
Unless a statute provides otherwise, a court that certifies a class must appoint class counsel.
In appointing class counsel, the court must consider all of the following:
The work counsel has done in identifying or investigating potential claims in the action.
Counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action.
The resources that counsel will commit to representing the class.
In appointing class counsel, the court may do any of the following:
Consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class.
Order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs.
Include in the appointing order provisions about the award of attorney fees or nontaxable costs under sub. (13)
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 sub. (12) (a)
. If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.
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.
Duty of class counsel.
Class counsel must fairly and adequately represent the interests of the class.
(13) 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. All of the following procedures apply:
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.
A class member, or a party from whom payment is sought, may object to the motion.
The court may hold a hearing and must find the facts and state its legal conclusions under s. 805.17 (2)
The court may refer issues related to the amount of the award to a referee, as provided in s. 805.06
(14) Prohibition against certain class actions.
No claim may be maintained against the state or any other party under this section if the relief sought includes the refund of or damages associated with a tax administered by the state.
Sup. Ct. Order, 67 Wis. 2d 585, 650 (1975); 2011 a. 68
; Sup. Ct. Order No. 15-06
, 2016 WI 50, 369 Wis. 2d xxiii; Sup. Ct. Order No. 17-03
, 2017 WI 108, 378 Wis. 2d xxi; 2017 a. 235
Sup. Ct. Order No. 17-03
states that “the Judicial Council Committee Notes above are not adopted, but will be published and may be consulted for guidance in interpreting and applying these rules.”
Effective date note
Judicial Council Committee Notes, 2017:
By S. Ct. Order 17-03, 2017 WI 108
(issued December 21, 2017, eff. July 1, 2018) the supreme court repealed and recreated s. 803.08. Recreated s. 803.08 is based on Rule 23 of the Federal Rules of Civil Procedure. Federal Rule 23 was adopted in its modern form in 1966, and it has been the subject of decades of careful review by the federal Advisory Committee on Civil Rules.
The Judicial Council's intent was to craft a Wisconsin class action rule that tracks as closely as possible federal practice so that Wisconsin courts and practitioners can look to the well-developed body of federal case law interpreting Rule 23 for guidance. Additionally, the federal Advisory Committee Notes accompanying Rule 23 are instructive, though not binding, and should be consulted.
To the extent that the language of s. 803.08 differs from federal Rule 23, the Committee's intent was to conform the federal rule to Wisconsin statutory drafting standards without changing the substantive meaning of any provision.
Subsection (6), Particular issues. In Waters ex rel. Skow v. Pertzborn
, 243 Wis. 2d 703
(2001), the Wisconsin Supreme Court held that the circuit court was barred by statute from ordering separate trials before different juries on the issues of liability and damages arising from the same claim. The court's holding was based on Wis. Stats. ss. 805.05 (2) and 805.09 (2).
Without deciding whether these rules would preclude a court from permitting a class action with respect to particular issues, the Committee has added the introductory phrase to this section to make it clear that such class actions are permitted. The inability to bring or maintain a class action with respect to particular issues would create an undesirable difference between Wisconsin practice and practice in the federal courts under Fed. R. Civ. P. 23(c)(4). Moreover, the Wisconsin Legislature has already adopted a former version of Rule 23(c)(4) as part of the procedure for class actions brought under the Wisconsin Consumer Act, in current s. 426.110 (10). (The procedures for class actions under that act are proposed for repeal as unnecessary after the adoption of revised s. 803.08.)
Subsection (10), Disposition of residual funds, and sub. (14), Prohibition against certain class actions, are the only provisions in recreated s. 803.08 that depart from the federal rule. Federal Rule 23 does not contain a provision comparable to sub. (10), which was originally adopted by the Wisconsin Supreme Court as s. 803.08 (2), effective January 1, 2017. Federal Rule 23 also does not contain a provision comparable to sub. (14), which was added by 2011 Wis. Act 68
to prohibit class action suits against the state seeking tax refunds, effective March 1, 2012.
Subsection (11), Appeals. Subsection (11) is modeled on F.R.C.P. 23(f). Interlocutory appeals specific to class certifications present unique considerations as compared to other appeals. The federal Advisory Committee Note 1998 amendment is instructive, though not binding, and should be consulted.
The class action statute, s. 260.12 [now s. 803.08], is part of title XXV of the statutes [now chs. 801 to 823], and the scope of title XXV is restricted to civil actions in courts of record. The county board is not a court of record. The class action statute can have no application to making claims against a county. Multiple claims must identify each claimant and show each claimant's authorization. Hicks v. Milwaukee County, 71 Wis. 2d 401
, 238 N.W.2d 509
(1974). But see also Townsend v. Neenah Joint School District, 2014 WI App 117
, 358 Wis. 2d 618
, 856 N.W.2d 644
The trial court did not abuse its discretion in determining that an action for damages caused by the negligent withdrawal of groundwater was not an appropriate class action. Nolte v. Michels Pipeline Const. Inc. 83 Wis. 2d 171
, 265 N.W.2d 482