USA – NEW YORK Law and Practice Contributed by: Sam Lieberman, Claiborne Hane and Ben Hutman, Sadis & Goldberg LLP
New York courts exercising authority under Article 9 enjoy comparable flexibility, though expressed less formally. Courts may redefine the class, order notice, appoint lead counsel, regulate discovery, consolidate related actions or structure subclasses as needed to promote fairness and efficiency. Like federal courts, they may amend or revoke certification at any stage. Under CPLR 908, settlements or discontinuances require judicial approval, even pre-certification settle- ments following Desrosiers v Perry Ellis , 30 N.Y.3d 488 (2017), ensuring the court remains an active guard- ian of absent class members’ interests. Overall, while federal practice is more rule-driven and New York’s more discretionary, both systems give judges sweep- ing managerial authority from certification through final resolution. 3.7 Length and Timetable for Proceedings Federal class actions that are not dismissed in the early stages of litigation typically take between two and a half years to upwards of five years to resolve. However, hard-fought litigation through summary judgment or trial can take longer. New York class actions are usually slightly quicker, and class actions that are not dismissed in the early stages typically take between two years to five years to resolve. Among other things, the complexity of the claims, interlocutory appeals to appellate courts, stays and leadership disputes can lengthen the time to resolu- tion. 3.8 Mechanisms for Changes to Length/ Timetable/Disposal of Proceedings No response has been provided in this jurisdiction. 3.9 Funding and Costs In general, US litigation at both the federal and state level is funded by the litigants. This is commonly referred to as the “American Rule”. It is only where a class action involves a statutory or contractual pre- vailing party fee-shifting provision, or where there is a finding that the losing party litigated in bad faith, that the losing party is required to pay the reasonable attorneys’ fees of the prevailing party.
Under Rule 54 (d)(1) of the Federal Rules of Civil Pro- cedure, prevailing parties in civil litigation may recov- er costs, but not attorneys’ fees. These costs may include fees of the clerk and marshal, fees for tran- scripts used in the case, printing and witness fees and disbursements, copying fees and docket fees. Some courts may also award electronic discovery costs. In settled cases, the settlement agreement will deter- mine how, if at all, costs will be allocated among the parties. New York has a similar rule, codified at CPLR 8101, which provides for certain cost-shifting in favour of the prevailing party. Third-party funding of class actions is permitted in the United States and New York. Third-party litigation funding is a well-established practice in the United States, and the rules regarding litigation financing for class actions are rapidly evolving. While some juris- dictions have implemented disclosure requirements, as of late 2025, New York courts do not have a for- mal statutory or court rule mandating the disclosure of third-party litigation funding agreements in class action litigation. But courts may order disclosure of such financing arrangements on a case-by-case basis. 3.10 Disclosure and Privilege Discovery and the attorney-client privilege in class actions is generally governed by the same rules and principles that normally apply in US civil litigation. Permissible discovery is quite broad and allows for use of a wide range of discovery mechanisms, includ- ing document requests, interrogatories, requests for admissions, and depositions of witnesses and parties. Discovery specifically related to the class certifica- tion requirements set forth in Rule 23 or Article 9 may be bifurcated or separated from merits discovery, but such bifurcation is not required. Most courts will per- mit discovery on the merits to proceed at the same time as class certification discovery. In recent years, defendants in class action litigation have increasingly attempted to obtain discovery from absent class members, either in an effort to defeat class certification or for use at trial. However, absent class member discovery is rarely permitted because many courts properly treat absent class members as non-parties – see, eg, In re Petrobras Sec. Litig. , 2016
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