In 1970, the Ohio Rules of Civil Procedure made their debut. The new set of rules included Civil Rule 23, governing procedure in class actions. Like most of the new Ohio civil rules, Rule 23 closely tracked its federal counterpart, Federal Rule of Civil Procedure 23, which itself was then relatively new, having been adopted in 1966. Since 1970, Ohio’s Rule 23 has sat untouched. In the meantime, the Ohio Supreme Court has amended other civil rules more than thirty times. During the more than forty years since Ohio Rule 23 was adopted, there have been significant changes in class-action practice and in the language of federal Rule 23. In 2003, the federal rule was substantially revised and improved to address a number of important issues not covered in the 1966 version of the rule. It is now time to update Ohio’s Rule 23 to better conform to the current federal rule and to address the realities of class actions today. Specifically, Ohio’s Rule 23 should be amended to incorporate the amendments to federal Rule 23 relating to the timing of the class certification decision, appointment of class counsel, notices to class members, and approval of proposed settlements. Those topics either are not treated at all in the current Ohio rule or are treated inadequately. Judges and litigants in Ohio courts deserve better guidance on the difficult procedural questions that can arise in class actions, and that guidance can come from sprucing up Ohio Rule 23 after more than forty years of benign neglect.
Essay, Updating Ohio's Class Action Rules After More than Forty Years, 62 Clev. St. L. Rev. 189