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Note: We've been told that Rule 23-3 is scheduled to be considered by the full court in March, 1997. - staff

Draft of March 6, 1997 (Not Reviewed or Approved by the Court)


Proposed Temporary Rule 23-3 (Version 4)

Rule 23-3. Electronic Posting of Certain Documents Filed in Securities Fraud Class Actions

(a) Electronic Posting. All postable documents as defined in subsection
(b) of this rule, required to be filed pursuant to Civil L.R. 5-1 in any private civil action containing a cause of action governed by the Private Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, 109 Stat. 737 (1995), shall be timely posted at a Designated Internet Site. The party or other person filing such document shall be responsible for Timely Posting.

(b) Postable Documents.

For purposes of this Rule, "postable documents" shall mean: any pleading specified in Fed. R. Civ. P. 7(a); any briefs, declarations, or affidavits filed pursuant to Fed. R. Civ. P. 12, 41, or 56; any briefs, declarations, or affidavits relating to certification of a class pursuant to Fed. R. Civ. P. 23; any briefs, declarations, or affidavits relating to designation of a lead plaintiff pursuant to 15 U.S.C. §§ 77z-1(a)(3) or 78u- 4(a)(3); any report, statement, declaration, or affidavit of an expert witness designated to testify, whether filed pursuant to Fed. R. Civ. P. 26(a)(2)(B), or otherwise; any pre-trial conference statement pursuant to Civil L.R. 16-9(b), pre-trial briefs, or motions in limine; any filing concerning approval of a settlement of the action; and any filing concerning any request for attorneys fees or costs.

Provided however, that no person shall be required by this Rule to post any:

(c) Timely Posting. A Postable Document shall be deemed timely posted at a Designated Internet Site in accordance with Subsection (a) of this Rule if, on the same day that the document is filed with this Court: an electronic version of the filing, prepared in any commonly used word processing format, is forwarded to a Designated Internet Site by electronic transmission, e-mail, physical delivery of a diskette, or any other means acceptable to that Designated Internet Site, provided that such electronic delivery occurs by means reasonably calculated to result in delivery by the third day following the filing; and the certificate of service required pursuant to Civil L.R. 5-4, states that service in compliance with this Rule has been accomplished to a Designated Internet Site that is identified by its physical and electronic addresses.

(d) Designated Internet Site. "Designated Internet Site" for purposes of this rule shall mean an Internet site that: is accessible at no cost to all members of the public who are otherwise able to access the Internet through commonly used web browsers;
charges no fee to any party, intervenor, amicus or other person subject to the provisions of this rule;
places no restrictions on any person's ability to copy or to download, free of charge, any materials posted on the site pursuant to the requirements of this rule;
maintains and responsibly operates a notification feature whereby any member of the public can request to receive e-mail notification, at no charge, of any posting of materials to the Designated Internet Site; undertakes to post on its site within two days of receipt of the electronic copy described in paragraph c (1) of this Rule all filings forwarded to it in compliance with the provisions of paragraph (a) of this rule;
undertakes to provide e-mail notification within one day of receipt of the electronic copy described in paragraph c (1) of this Rule to all other Designated Internet Sites informing them of the posting of any materials related to securities class action litigation;
maintains and publicizes a physical address to which the United States Postal Service or other commonly used delivery services can make physical delivery of documents and/or diskettes, an Internet address in the form of an operational Uniform Resource Location ("URL"), and an e- mail address to which persons subject to paragraph (a) of this Rule can transmit electronic copies of documents subject to the posting requirement of this Rule;
undertakes to disclose prominently the URLs, physical addresses, and facsimile numbers of all other Designated Internet Sites known to it; and
submits to the Secretary of the Securities and Exchange Commission (the "Secretary") a statement, signed by a member of the bar that: identifies the Designated Internet Site through its URL; provides the name, address, telephone number, facsimile number, and e-mail address of one or more Persons responsible for operation of the site;
and attests that the site satisfies the requirements of the Rule and that it will promptly notify the Secretary should it cease to be a Designated Internet Site.

(e) Suspension of Posting Requirements. Compliance with this Rule shall not be required for any document filed at any time during which no Designated Internet Site is operational.


The Private Securities Litigation Reform Act of 1995, Pub. L. No. 104- 67, 109 Stat. 737 (1995) (the "Reform Act"), contains several provisions designed to disseminate broadly to investors information relating to the initiation and settlement of class action securities fraud litigation in the federal courts. See, e.g., 15 U.S.C. §§ 77z-1(a)(3)(A), 77z-1(a)(7), 78U-4(a)(3)(A), 78U-4(a)(7). The legislative history of that Act makes clear that Congress intended that litigants also make use of "electronic or computer services" to notify class members. H.R. Conf. Rep. 369, 104th Cong., 1st Sess. 34 (1995).

Notification to class members traditionally involves a combination of mailings and newspaper advertisements that are expensive, employ small type, convey little substantive information, and that may be difficult for members of the class to locate. The rapid growth of Internet technology provides a valuable means whereby extensive amounts of information can be communicated at low cost to all actual or potential members of a class, as well as to other members of the public. Consistent with Congressional intent to promote the use of "electronic or computer services", this rule seeks to employ Internet technology to disseminate broadly information related to class action securities fraud litigation.

Proposed Rule 23-3 is designed to capitalize on the potentially substantial benefits of the Internet for class members, counsel, and the court while imposing de minimis costs. Compliance is simple and relatively costless: it is accomplished by sending an e-mail copy or diskette of a filing that already exists on a wordprocessor to a Designated Internet Site which charges no fee for the services it renders. The rule specifically does not require that counsel create electronic versions of filings, attachments, exhibits, or other materials that do not already exist in readily accessible machine- readable form. Posting to a Designated Internet Site is not a substitute for other applicable filing requirements.

The benefits of Internet access to these documents are several. Clients will be able easily to monitor developments in litigation pursued on their behalf. Courts and counsel will be able to observe litigation developments over a broader span of disputes and thereby become better informed with regard to emerging issues in this complex area of the law. With addition of full text search engines to the data contained in Designated Internet Sites, courts, litigants, and class members alike will be able to search efficiently the most significant filings in class action securities fraud litigation for issues and facts relevant to their analyses. Search tools now limited to the analysis of judicial decisions will thus become applicable to the record in a case itself.

The Court is informed that the Securities and Exchange Commission is considering maintaining links to Designated Internet Sites that have provided notice to the Commission pursuant to the provisions of Section (d)(9).

The Court recognizes the novel nature of this posting requirement. The Court therefore proposes to adopt the rule on a temporary basis and will regularly review its operation and any difficulties that may arise.
from the Securities Class Action Clearinghouse

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