An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in Rule 23(d) . Further, the provisions of Rule 23(c) , concerning dismissal or compromise of the action are applicable to this Rule.
Effective July 1, 1974.
(1996) With the merger of the District Court civil rules into the Mass.R.Civ.P., Rule 23.2 of the Mass.R.Civ.P. governing actions relating to unincorporated associations is made applicable to District Court proceedings.
(1973) Rule 23.2 is substantially the same as Federal Rule 23.2, the only difference being the references to Rule 23. Federal Rule 23.2 was added in 1966 in conjunction with the 1966 amendment completely rewriting and revising Federal Rule 23 and also adding Federal Rule 23.1 (derivative actions).
The Advisory Committee's notes to Federal Rule 23.2 read as follows:
"Although an action by or against representatives of the membership of an unincorporated association has often been viewed as a class action, the real or main purpose of this characterization has been to give 'entity treatment' to the association when for formal reasons it cannot sue or be sued as a jural person under Rule 17(b).... Rule 23.2 deals separately with these actions, referring where appropriate to Rule 23."
Massachusetts practice permits individuals to sue or be sued in a representative capacity on behalf of an association, such as a labor union, when it is made to appear that the individuals represent the group. Leonard v. Eastern Mass. St. Ry. Co. , 335 Mass. 308, 140 N.E.2d 187 (1957) (representative suit by labor union); Thorn v. Foy , 328 Mass. 337, 103 N.E.2d 416 (1952) (representative suit against officers of labor union). Where such an action is brought, the unincorporated association should not be described as a party to the suit. Donahue v. Kenney , 327 Mass. 409, 99 N.E.2d 155 (1951).
Rule 23.2 does not change the rule in Massachusetts that with some statutory exceptions (i.e., suits against certain voluntary associations and business trusts - G.L. c. 182, § 6 ) unincorporated associations do not have the capacity to sue or be sued. In view of Rule 23, it may appear that Rule 23.2 is redundant. It is not entirely clear, however, that an action by or against representatives of an unincorporated association is technically a class action. Rule 23.2 emphasizes that whether or not such representative suits are class actions, they are maintainable. The protective provisions of Rule 23, namely sections (c) and (d) are incorporated into Rule 23.2.
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