Senate Bill 72 requires a court considering a class action to hold an early conference to establish a schedule for any discovery the parties may wish to engage in that is allowed by the rules of civil procedure and germane to the issue of whether the class action should be certified. At the conference, the court may set a date for hearing on the issue of class certification, but the hearing cannot be set sooner than 90-days after the date on which the court issues its schedule order, unless a shorter time is agreed to by the parties.

    On the motion of any party, the court is required to stay all discovery directed solely at the merits of the claims or defenses in the action until the court has made a decision regarding certification of the class. However, the court may decline to issue the stay for good cause shown if the interests of justice require that the court not issue the stay.

    The court is required to hold a full evidentiary hearing on class certification on the motion of any party. At the hearing, parties are 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.

 Page 136       PREV PAGE       TOP OF DOC

    The court is required to use a ''rigorous analysis'' in deciding whether to certify the class. The burden is on the class proponent to show that certification is proper. The court is prohibited from certifying the class unless all of the factors required by Ala. R. Civ. P. 23 for certification of a class action have been met. The court is required to place in the record a written order addressing all the factors and specifying the evidence, or lack of evidence, on which the court based its decision as to whether each factor has been established.

    The court's order certifying or refusing to certify a class action is appealable in the same manner as a final order to the appellate court that would otherwise have jurisdiction over an appeal from a final order in the action. The appeal may only be filed within 42 days of the order certifying or refusing to certify the class. The filing or failure to file this type of appeal does not affect the right of any party, after the entry of final judgment, to appeal the earlier certification of or refusal to certify the class. During the pendency of an appeal as to the certification of the class, the action in the trial court is stayed.

CONCLUSION

    The Alliance believes that the time is right to achieve the reforms discussed above. Recent high profile settlements, such as that between Big Tobacco and the State Attorneys General, have created a backlash against attorneys and heightened the public's overall awareness of the abuses inherent in the civil justice system.

    In the tobacco litigation, private lawyers who helped eight states sue the tobacco industry were paid $221 million in legal fees under a settlement with the industry. In addition, an arbitration panel in December 1998 awarded $8 billion to lawyers who negotiated separate multi-billion dollar settlements for Texas, Florida, and Mississippi.

 Page 137       PREV PAGE       TOP OF DOC

    Additionally, efforts by Congress to enact class action reform legislation and Alabama's recent enactment of a class action reform bill are expected to generate momentum within the states to curb such abuses.

    Appendix 1

PRESUMPTION OF VALIDITY

MODEL LEGISLATION

    In a civil action brought against a regulated entity doing business in this state for harm allegedly caused by an activity or practice engaged in by that entity, there is a rebuttable presumption that the entity and/or its agent(s) is not liable if, at the time the act giving rise to the complaint took place, the entity had received the explicit or implicit approval of the regulatory authority charged with overseeing that entity to engage in the activity or practice at issue, or the entity has complied with all applicable statutory and regulatory requirements relating to the practice or activity at issue, including but not limited to, rules, regulations and bulletins.

    Appendix 2

EXHAUSTION OF ADMINISTRATIVE REMEDIES

MODEL LEGISLATION

 Page 138       PREV PAGE       TOP OF DOC

I. DISMISSAL OR ABATEMENT IF STATE AGENCY JURISDICTION INVOLVED:

(a) A court shall abate or dismiss an action unless the court determines that:

(1) the interpretation, application, or violation of an agency statute or rule involves only questions of law; and

(2) the state agency may not make any findings of fact or conclusions of law or issue any orders that would aid the court in resolving the action.

(b) A court may abate or dismiss an action if the court determines that a state agency may order in a contested case all or part of the relief the claimant seeks. The court shall specify in its order of abatement or dismissal the state agency and the portion of the agency statute on which the court bases its order.

(c) A court that abates an action under this section:

(1) shall refer specific issues or claims within the state agency's jurisdiction to the agency for action; and

(2) may direct the state agency to report to the court periodically concerning the disposition of the matters referred to the agency.

(d) The statute of limitations for an action dismissed or abated under this section is tolled for the period during which the claimant seeks an administrative remedy.

 Page 139       PREV PAGE       TOP OF DOC

II. PERIOD OF ABATEMENT: The court shall provide that the period of abatement is at least six months from the date the court enters the order of abatement, or such other reasonable time as the court may determine.

III. ADEQUATE RELIEF: Relief awarded to a claimant may be adequate even if the relief does not include exemplary damages, multiple damages, attorneys' fees, or costs of court.

IV. APPLICABILITY: This section applies only to a civil action in which:

(1) a claimant seeks recovery of damages on behalf of a class of claimants and

(2) the interpretation, application, or violation of an agency statute or rule is involved for at least one defendant.