Fees in Class Action and Shareholder Derivative Actions

PRE-2024 COMMITTEE NOTE

The Committee recommends the retention of Local Civil Rule 23.1.1. Unlike Fed. R. Civ.

P. 23 (which deals with class actions), Fed. R. Civ. P. 23.1 (dealing with shareholder

derivative actions) does not contain any provisions dealing with attorney’s fees. Local

Civil Rule 23.1.1 has been part of the local rules for many years and has proven its

usefulness in derivative actions.

2016 COMMITTEE NOTE

The Committee in 2011 recommended that prior Local Rule 23.1 regarding class actions

be deleted as unnecessary. The Second Circuit's recent decision in Bernstein v. Bernstein

Litowitz Berger & Grossman LLP, 814 F.3d 132, 137 n.2 (2d Cir. 2016), stated that the prior

Local Rule is not redundant with Fed. R. Civ. P. 23(h) regarding fee sharing

arrangements. The Committee therefore recommends reinstating Local Rule 23.1 and

combining it with Local Rule 23.1.1 to cover both class actions and derivative actions.

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Joint Local Rules, S.D.N.Y. and E.D.N.Y. Effective January 2, 2026