[Federal Register Volume 61, Number 157 (Tuesday, August 13, 1996)] [Rules and Regulations] [Pages 41963-41964] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-20415] ----------------------------------------------------------------------- LEGAL SERVICES CORPORATION 45 CFR Part 1617 Class Actions AGENCY: Legal Services Corporation. ACTION: Interim rule with request for comments. ----------------------------------------------------------------------- SUMMARY: This interim rule completely revises the Legal Services Corporation's (``Corporation'' or ``LSC'') regulation concerning class actions. The revisions are intended to implement a restriction contained in the Corporation's FY 1996 appropriations act which prohibits the involvement of LSC recipients in class actions. Although this rule is effective upon publication, the Corporation solicits public comment on the interim rule in anticipation of adoption of a final rule at a later time. DATES: The interim rule is effective on August 13, 1996. Comments must be submitted on or before September 12, 1996. ADDRESSES: Comments should be submitted to the Office of the General Counsel, Legal Services Corporation, 750 First St, NE, 11th Floor, Washington, DC 20002-4250. FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, (202) 336-8910. SUPPLEMENTARY INFORMATION: On May 19, 1996, the Operations and Regulations Committee (``Committee'') of the LSC Board of Directors' (``Board'') requested LSC staff to prepare an interim rule to implement Section 504(a)(7), a restriction in the Corporation's FY 1996 appropriations act, Public Law 104-134, 110 Stat. 1321 (1996), which prohibits involvement of LSC recipients in class actions. The Committee held public hearings on staff proposals on July 8 and 19, and the Board adopted this interim rule on July 20 for publication in the Federal Register. The Committee recommended and the Board agreed to publish this rule as an interim rule. An interim rule is necessary in order to provide prompt and critically necessary guidance to LSC recipients on legislation which is already effective and which carries strong penalties for noncompliance. Because of the great need for guidance on how to comply with substantially revised legislative requirements, prior notice and public comment are impracticable, unnecessary, and contrary to the public interest. See 5 U.S.C. 553(b)(3)(B) and 553(d)(3). Accordingly, this interim rule is effective upon publication. However, the Corporation also solicits public comment on the interim rule for review and consideration by the Committee. After receipt of written public comment, the Committee intends to hold public hearings to discuss the written comments and to hear oral comments. It is anticipated that a final rule will be issued which will supersede this interim rule. Part 1617 is completely revised by this interim rule. Generally, this interim rule prohibits any recipient involvement in class actions. The prior regulation, which had not been revised since 1976, had allowed recipients to provide assistance in class actions as long as certain procedural requirements were met. No such involvement is allowed under this new rule. A section-by-section discussion of this interim rule is provided below. Section 1617.1 Purpose The purpose of this rule is to prohibit involvement by LSC recipients in class actions. Section 1617.2 Definitions The definition of ``class action'' is revised to include only the nature of a class action. The prior definition also reached the issue of types of involvement in a class action, including involvement in various stages of a class action. Those issues are now included in the definition of ``initiating or participating in a class action.'' The definition of ``class action'' defers to widely accepted Federal and local court rules and statutory definitions. Thus, a class action for the purposes of this part is a ``class action'' pursuant to Rule 23 of the Federal Rules of Civil Procedure or the comparable State statute or rule of civil procedure [[Page 41964]] governing the action in the court where it is filed. ``Initiating or participating in any class action'' is defined to clarify that all types of involvement are prohibited at various stages of a class action prior to an order granting relief. Recipients may not initiate a class action or participate in one initiated by others, either at the trial or appellate level. Nor may recipients continue involvement in a case already begun that is later certified or otherwise determined by the court, sua sponte or on a motion by a party, to be a class action. In addition, recipients may not act as amicus curiae or co-counsel in a class action or intervene in a class action on behalf of individual clients who seek to withdraw from, intervene in, opt out of, modify, or challenge the adequacy of the representation of a class. Finally, recipients may not represent defendants in a class action. Certain situations are not within the definition and are thus not prohibited by this rule. For example, recipients may advise clients about the pendency of a class action or its effect on the client and what the client would need to do to benefit from the case. Other actions related to a class action are also not included, but only because they involve actions taken after liability, if any, has been determined and an order of relief has been entered. Accordingly, recipients may be involved in non-adversarial monitoring of an order granting relief or representation of an individual client seeking the benefit of the order, provided that any such involvement is only on behalf of an individual client and does not involve representation of an entire class. In addition, if the class action resumes its adversarial nature for any reason, recipients would need to attempt withdrawal in order to avoid participating in a class action. Finally, a class action would not include other forms of action, even if they result in relief that benefits numbers of clients or resolves issues that affect others in addition to the client, provided that the case is not also a class action as defined by this rule. For example, this rule does not apply to mandamus or to injunctive or declaratory relief actions, unless such actions are filed or certified as class actions. The Committee especially seeks comments from recipients factually describing other situations which recipients consider to be outside the prohibition on initiating or participating in a class action that should be described in the language of the rule itself. Section 1617.3 Prohibition This section prohibits LSC recipients from initiating or participating in any class action. Section 1617.4 Recipient Policies and Procedures This section requires recipients to adopt written policies and procedures to guide the recipient's staff in ensuring compliance with this rule. List of Subjects in 45 CFR Part 1617 Grant Programs--law, Legal services. For reasons set out in the preamble, LSC revises 45 CFR part 1617 to read as follows: PART 1617--CLASS ACTIONS Sec. 1617.1 Purpose. 1617.2 Definitions. 1617.3 Prohibition. 1617.4 Recipient policies and procedures. Authority: 29 U.S.C. 2996e(d)(5); 110 Stat. 1321 (1996). Sec. 1617.1 Purpose. This part is intended to ensure that LSC recipients do not initiate or participate in class actions. Sec. 1617.2 Definitions. (a) Class action means a lawsuit filed as, or otherwise declared by the court having jurisdiction over the case to be, a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure or the comparable State statute or rule of civil procedure applicable in the court in which the action is filed. (b) Initiating or participating in any class action means any involvement at any stage of a class action prior to an order granting relief, including acting as amicus curiae, co-counsel or providing legal assistance to an individual client who seeks to withdraw from, intervene in, opt out of, modify, or challenge the adequacy of the representation of a class. It does not include non-adversarial monitoring of an order granting relief or individual representation of a client seeking to obtain the benefit of relief ordered by the court. Sec. 1617.3 Prohibition. Recipients are prohibited from initiating or participating in any class action. Sec. 1617.4 Recipient policies and procedures. Each recipient shall adopt written policies and procedures to guide its staff in complying with this part. Dated: August 6, 1996. Victor M. Fortuno, General Counsel. [FR Doc. 96-20415 Filed 8-12-96; 8:45 am] BILLING CODE 7050-01-P