Del. R. Ch. Ct. 23
Comment to Revisions Effective as of September 23, 2023
In 2023, Rule 23 was revised to align its language in certain respects with Federal Rule of Civil Procedure 23 so that authorities interpreting the federal rule could be cited more easily as persuasive authority for the interpretation of Rule 23.
Except as noted, no substantive change in the interpretation of the rule was intended, and prior Delaware authorities interpreting the rule remain applicable. In particular, the revision deletes the last sentence of prior Rule 23(aa) as unnecessary and replaces the term "compromise" in prior Rule 23(f) with "settlement." No substantive change in interpretation was intended.
The revision makes the following changes to conform Rule 23 more closely to Federal Rule 23 and current practice:
The revision removes the requirement to certify a class "[a]s soon as practicable" as inconsistent with current practice. Consistent with the 2003 amendments to the federal rule, the revision does not provide for "conditional" certification orders.
Rule 23(d) addresses practice regarding class counsel; it is new and modeled on current practice.
Rule 23(f) addresses practice regarding dismissal and settlement; it is mostly new and modeled on the federal rule and current practice. Rules 23(f)(1), 23(f)(2)(A), and 23(f)(3)(A) are carryovers from the prior rule.
Rule 23(g) addresses attorney's fees; it is new and modeled on the federal rule and current practice.
Comment to Revisions Effective as of June 14, 2024
In 2024, Rule 23(f)(1) was amended after revisions to Rule 15. The revisions to Rule 15 had renumbered prior Rule 15(aaa) as Rule 15(a)(5). The amendment to Rule 23(f)(1) updated the cross reference.