Changes could be coming to state class actions

Listen to this article

A group of lawyers, judges and lawmakers are moving forward with a proposal that would have the state’s class-action procedures revised to mirror federal rules.

The Judicial Council, which is charged with proposing changes to the court system’s procedures, voted Friday to advance a proposal to bring the state rules of civil procedure into conformity with the Federal Rules of Civil Procedure. The federal rules were amended in 1938 in a way that included the adoption of Rule 23, which governs procedures for class-action lawsuits.

Although Wisconsin approved the bulk of those changes about 40 years ago, it chose not to adopt the class-action rule. That decision left in place standards dating to the 1840s, says Tom Shriner, attorney at Foley & Lardner and Marquette University Law School’s appointee to the council.

Among those who favor keeping the old rules were various defense attorneys, who believe the proposed changes might disadvantage their clients, says Shriner.

“What we’ve done is labored along with the field-code provision,” he said.

Michael Fitzpatrick, a council member and Rock County Circuit Court judge, agreed. As an example of why the rules need revision, he cited his recent experience with a class-action lawsuit filed by several hundred employees at a Hormel’s Beloit plant over wages they argued were lost at times when they were donning and doffing work gear.

“The Wisconsin Supreme Court has not spoken on class actions since I was in high school,” Fitzpatrick said. “The rule is basically useless. It basically says, ‘Deal with this.’”

When in need of guidance, judges often find themselves turning to state Court of Appeals decisions, which have been used in attempts at patching together a framework. In the end, though, judges usually end up relying on federal case law, says Fitzpatrick.

Shriner said there is little reason to expect the adoption of the federal rule governing class-action suits to produce jarring results. Actual practice in Wisconsin, he noted, is largely consistent already with federal procedures. And anything that is unique to Wisconsin can be easily added.

“Lawyers should be able to know what the rules are and they shouldn’t have a different body of law unless there’s reason for it,” Shriner said. “It’s more expensive for litigation and more difficult for lawyers.”

April Southwick, staff attorney at the judicial council, noted that the Wisconsin Consumer Act contains provisions based on Rule 23, but not important recent amendments to that same rule.

Fitzpatrick said the proposal should not be a subject of controversy and that the committee has heard favorable responses from practitioners.

Agreement came from Bill Gleisner, one of the state bar’s appointees to the judicial council. Gleisner, also a plaintiff’s attorney at Pitman, Kalkhoff, Sicula & Dentice in Milwaukee, said he expects little resistance from plaintiff’s lawyers, especially since there is relatively little state case law dealing with class actions.

“You’re really flying by the seat of your pants right now, so I think the plaintiff’s bar is on board with this,” said Gleisner.

Friday’s vote called for a draft of the proposed changes be written up and sent to the Legislative Council for review. The council will still have to approve a final draft of the proposal before it heads to the Wisconsin Supreme Court. Follow @erikastrebel