Advisory Commission Comments to Rules 23.01-23.08

Advisory Commission Comments

Rule 23 makes the class action available in all fields of civil litigation. The court is required to make an affirmative determination as to whether or not a class action is proper in any given set of circumstances; this determination is subject to alteration at any time prior to judgment on the merits. Criteria governing the court’s determination are spelled out in detail. The rule seeks to secure to the courts and litigants the advantages of the class action while clothing the court with power to protect all members of the class against a miscarriage of justice.

23.06. Tenn. Code Ann. § 48-718 [repealed] contains the provisions of the General Corporation Act relating to shareholders’ derivative suits. Rule 23.06 does not conflict with the provisions of Tenn. Code Ann. § 48-718 [repealed] and will not repeal any of its provisions. The Rule adds a provision, not found in the statute, requiring that the complaint contain an allegation that plaintiff is a holder of shares at the time of bringing the suit, but the Rule does not change the requirement that the plaintiff actually be a shareholder as of that time. The Rule adds a requirement that the complaint set out the reasons that plaintiff’s efforts to obtain desired action from the directors or comparable authority were unsuccessful. The Rule adds a provision that the derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated.

Advisory Commission Comment [2004]

The amendment to Rule 23.03(1) abolishes ex parte class action certifications.

Advisory Commission Comment [2006]

The second and third sentences of Rule 23.05 are new. Objections can be made to attorney fees sought as part of a settlement.

Advisory Commission Comment [2007]

T.C.A. §27-1-125 gives the Court of Appeals discretion to permit an appeal of a trial court’s grant or denial of class action certification. Permission from the trial court is unnecessary.

Advisory Commission Comment [2009]

The Tennessee Voluntary Fund for Indigent Civil Representation is established in Tenn. Code Ann. § 16-3-821.