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Xebraska's class action statute is based on the Iield Code of 18!9 and is broadly written.
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Inacted in 1867,
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the
statute provides: \hen the question is one of a common or general interest of many persons, or when the parties
are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend

Iespite the broad language of the statute, one commentator found that the Xebraska class action statute is
much more restrictive than Iule 2 of the Iederal Iules of Civil Procedure and has seldom been applied by the
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Since Xebraska's statute is unique, and does not track with Iule 2 of the Iederal Iules of Civil Procedure,

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apply to class actions.
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Ioth standing and mootness are key functions in determining whether a justiciable controversy exists, or

Standing is the legal or equitable right, title, or interest in the subject matter of the controversy which entitles a
party to invoke the jurisdiction of the court."
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Xeb. Iev. Stat. ,2-01 provides that [e]very action shall be prose-
have no title, right, or interest in the cause.
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a suit which eradicate the requisite personal interest in the resolution of the dispute that existed at the beginning
of the litigation."
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Cenerally, a court must dismiss a moot case when changed circumstances have precluded it
from providing any meaningful relief because the litigants no longer have a legally cognizable interest in the dis-
pute's resolution."
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Xebraska (along with Wisconsin and California) is one of only three states that still utilize class action statutes based
on the Iield Code. Alba Conte 8 Berbert B. Xewberg, 4 -- - 1.2 (4th ed., West).
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Act of Ieb. 12, 1866, tit. III 4, 1866-1877 Xeb. Iaws 14 (current version at Xeb. Rev. Stat. 25-19).

Xeb. Rev. Stat. 25-19.


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, 61 Xeb. I. Rev. 0 (1982).

Vyers v. Xebraska Invest. Council, 272 Xeb. 669, 724 X.W.2d 776 (2006).
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State v. Iamb, 280 Xeb. 78, 745 (2010).
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Schmidt v. Benke, 192 Xeb. 408, 222 X.W.2d 114 (1974); Scholting v. Alley, 185 Xeb. 549, 178 X.W.2d 27 (1970).
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Wetovick v. County of Xance, 279 Xeb. 77, 78 (2010).
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Considering arbitration generally, arbitration in Xebraska is governed by the state's enactment of the Iniform
Arbitration Act.
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Xebraska law requires that when arbitration is the only remedy for resolving a contract dispute,
the following statement shall appear in capitalized, underlined type adjoining the signature block: 1BIS COX-
1IAC1 COX1AIXS AX AIII1IA1IOX PIOYISIOX \BICB VAY II IXIOICII IY 1BI PAI1IIS."
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failure to include such a statement renders an arbitration agreement unenforceable.
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In the circumstance that arbitration arises from a contract involving interstate commerce, it is governed by
the Iederal Arbitration Act (IAA).
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Inder the IAA, written provisions for arbitration are valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."
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represent a purported class in a class action.
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In Xebraska, a party previously had two traditional options for challenging a class action prior to trial:
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rules of pleading.
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state a claim. Itilizing summary judgment, on the other hand, allows the challenger to use evidence outside the
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mining the propriety of a class action.
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Xebraska has no special jurisdictional requirements that apply to class actions. Challenges to jurisdiction are gen-
erally made by motions to dismiss. Iack of subject matter jurisdiction and lack of standing are two jurisdictional
Iack of subject matter jurisdiction may be raised at any time either by a party or by the court.
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Subject mat-
ter jurisdiction is a court's power to hear and determine a case in the general class or category to which the pro-
ceedings in question belong and to deal with the general subject involved in the action before the court and the
particular question which it assumes to determine."
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Standing also relates to whether a court has jurisdiction over a matter. Standing is the legal or equitable right,
title, or interest in the subject matter of the controversy which entitles a party to invoke the jurisdiction of the
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Aramark Iniform 8 Career v. Bunan, Inc., 276 Xeb. 700, 70 (2008).
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Xeb. Rev. Stat. 25-2602.02.
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Aramark, 276 Xeb. at 704.
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; - - Kramer v. Iagle Iye Bome Inspections, 14 Xeb. App. 691, 716 X.W.2d 749 (2006).
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9 I.S.C. 2.
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Iynch v. State Iarm Vut. Auto. Ins. Co., 275 Xeb. 16, 144, 745 X.W.2d 291 (2008).
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right of a party to sue as representative of a class may be determined on motion for summary judgment.").
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Xeb. Rev. Stat. 6-1107; Xeb. Rev. Stat. 25-801.01(2)(c).
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Iynch v. State Iarm, 275 Xeb. at 144 (2008).
19
In Re Istate of Bockemeier, 280 Xeb. 420, 422 (2010).
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court."
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[A]s an aspect of jurisdiction and justiciability, standing requires that a litigant have such a personal
stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify the exercise of
the court's remedial powers on the litigant's behalf."
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As for appealing a district court's ruling on a motion challenging venue, where the record does not show an
abuse of discretion, a ruling on a motion to transfer venue will not be disturbed on appeal."
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Votions to transfer venue are governed by Xeb. Iev. Stat. ,2-!10 which provides that any civil action may be
transferred to the district court of any county in the state [f]or the convenience of the parties and witnesses or in
the interest of justice.."
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A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be dis-
turbed absent an abuse of discretion."
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jurisdiction if it is a seriously inconvenient forum for the trial of the action, provided that a more appropriate
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parties and the ends of justice would be better served if the action were brought and tried in another forum."
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turbed.
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or her home forum will normally outweigh the inconvenience the defendant may have shown.
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State v. Iamb, 280 Xeb. 78, 745 (2010) (citing Vyers v. Xebraska Invest. Council, 272 Xeb. 669, 724 X.W.2d 776 (2006)).
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(citing Iamar Co. v. City of Iremont, 278 Xeb. 485, 771 X.W.2d 894 (2009)).
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Xeb. Rev. Stat. 25-40.01 (Reissue 1995).
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Wilson v. Visko, 244 Xeb. 526, 508 X.W.2d 28 (199).
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Xeb. Rev. Stat. 25-410 (Reissue 1995); - - Community Iirst State Bank v. 0lsen, 255 Xeb. 617, 624 (1998).
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State v. Schroeder, 279 Xeb. 199, 207 (2010).
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Ameritas Invest. Corp. v. VcKinney, 269 Xeb. 564, 574 (2005); - -
(1971); Black's Iaw Iictionary 680-81 (8th ed. 2004).
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(citing Qualley v. Chrysler Credit Corp., 191 Xeb. 787, 217 X.W.2d 914 (1974)).
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As far as balancing factors, [t]he trial court should consider practical factors that make trial of the case easy,
expeditious, and inexpensive, such as the relative ease of access to sources of proof, the cost of obtaining atten-
dance of witnesses, and the ability to secure attendance of witnesses through compulsory process."
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It is also appropriate to consider the advantages of having trial in a forum that is at home with the state law
and in law foreign to itself."

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Class actions, as any other claim in Xebraska, may be attacked with motions to dismiss. - above discussion
nothing prohibits their use. A motion for partial summary judgment is the more common approach to attacking
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Xebraska has no provision similar to the Iederal Iules of Civil Procedure Iule 2(A) and (I) authorizing a class-
certifying hearing in the trial court."
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Since Xebraska utilizes no special procedure for certifying a class, the method generally applied by those seek-
below.
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he or she has the power as a member of the class to satisfy a judgment on behalf of all members of the class."
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Applying this statement to consideration of merits, if a case is considered on its merits, as through a motion for
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pierce the allegations made in the pleadings and show conclusively that the controlling facts are other than as
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Ameritas Invest. Corp. v. VcKinney, 269 Xeb. at 574 (2005) (citing In re Interest of C.W. et al., 29 Xeb. 817, 479
X.W.2d 105 (1992)).

(citing American Iredging Co. v. Viller, 510 I.S. 44 (1994)).


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Twin Ioups Reclamation Iist. v. Blessing, 202 Xeb. 51, 52, 276 X.W.2d 185, 191 (1979).

Keef v. State, 262 Xeb. 622 at 61 (2001).


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, , Bow v. Vars, 245 Xeb. 420, 424 (1994).
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, , Iavio v. Xebraska Iept. of Bealth 8 Buman, 280 Xeb. 26, 270 (2010).
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Viller v. City of 0maha, 25 Xeb. 798, 805-806, 57 X.W.2d 121, 127 (Xeb. 1998).
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pled, and thus resolve, without the expense and delay of trial, those cases where there exists no genuine issue as
to any material fact or as to the ultimate inferences to be drawn therefrom, and where the moving party is enti-
tled to judgment as a matter of law."
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burden applied to summary judgments generally.
Summary judgment may be properly granted where there exists no genuine issue as to any material fact in
the case, the ultimate inferences to be drawn from those facts are clear, and the moving party is entitled to judg-
ment as a matter of law."
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In considering a motion for summary judgment, the court views the evidence in the
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ences that may be drawn therefrom."
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[1]he party moving for summary judgment has the burden of showing that no genuine issue as to any mate-
rial fact exists; that party must therefore produce enough evidence to demonstrate his entitlement to a judgment
opposing the motion."
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does not become part of the record and cannot be considered. as evidence in the case."
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Iurther, evidentiary
not be considered on appeal."
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the same discovery rules and schedules that govern non-class cases.

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when
the parties are very numerous, the Xebraska Supreme Court has held that criteria are required for proper
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Iurther, in determining whether a class action is properly brought, broad discretion is vested in
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7annini v. Ameritrade Bolding Corp., 266 Xeb. 492, 499, 667 X.W.2d 222 (200).
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Barrold v. Spaghetti Tree, Inc., 219 Xeb. 19, 140, 62 X.W.2d 44, 45 (1985).
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Peterson v. Cering Irr. Iist., 219 Xeb. 281, 282, 6 X.W.2d 145, 147 (1985).
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Vullendore v. School Iist. Xo. 1 of Iancaster County, 22 Xeb. 28, 8, 88 X.W.2d 9 (1986).
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Rodriguez v. Xielsen, 259 Xeb. 264, 269, 609 X.W.2d 68, 72 (2000).
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Iynch v. State Iarm, 275 Xeb. at 144 (2008); - - Boiengs v. County of Adams, 245 Xeb. 877, 516 X.W.2d 22
(1994).(In order to justify class status treatment, there must exist both a question of common or general interest and
numerous parties so as to make it impracticable to bring all the parties before the court.").
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the trial court" in determining if both commonality and numerosity exist
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All of the criteria below apply in some
way to either the issue of commonality or numerosity.

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Supreme Court, in a case involving a suit over all losing lottery tickets sold, determined that a class was not man-
impractical, if not impossible, to satisfactorily reach and identify, and distribute the award to, those entitled to
share in it."
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One requirement for bringing a class action is that the parties must be numerous enough to make it impracticable
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ever, if the same result can be reached by suing individually.
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Additionally, a class action is not proper if the class
action is maintained or a class action is brought.

joinder rules.
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ported class desire the same outcome of the action that their representative desires."
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In other words, the ques-
tions of law and fact must be common to all members and predominate over individual interests.

representative must fairly represent the interests of the entire class.


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Iavio v. Xebraska, 280 Xeb. at 270 (2010); - - Berkshire 8 Andersen v. Iouglas Bd. of Iqualization, 200 Xeb. 11,
262 X.W.2d 449 (1978).
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Berkshire 8 Andersen v. Iouglas, 200 Xeb. at 115 (1978) ([W]e believe the trial judge could have properly determined
served by bringing a suit as a class action."); - - Riha Iarms, Inc. v. County of Sarpy, 212 Xeb. 85, 22 X.W.2d 797
(1982) (holding that generally, a suit cannot be maintained by one taxpayer on behalf of himself and others similarly sit-
uated to recover taxes alleged to have been illegally assessed, but each taxpayer must bring action on his own behalf.).
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Kosowski v. City of Betterment Corp., 197 Xeb. 402, 405, 249 X.W.2d 481(1977).
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Boiengs v. County of Adams, 245 Xeb. at 901 (1994).
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Benesch v. City of Schuyler, 5 Xeb. App. 59, 68, 555 X.W.2d 6(Xeb. App. 1996).
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trict of 0maha, 185 Xeb. 464, 467, 176 X.W.2d 679 (Xeb. 1970) (citing Certia v. Iniversity of Xotre Iame Iu Iac, Ind.
141 X.I. 18 (Ind. App. 192)).
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Boiengs 245 Xeb. at 90 (1994) (citing Browne v. Vilwaukee Bd. of School Iirectors, 69 Wis. 2d 169, 20 X.W.2d 704
(1975).

Boiengs, 245 Xeb. at 902 (1994).


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Boiengs 245 Xeb. at 90-904; Blankenship v. 0maha Pub. Power Iist., 195 Xeb. 170, 176, 27 X.W.2d 86, 90 (Xeb. 1976).
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he or she has the power as a member of the class to satisfy a judgment on behalf of all members of the class."

Persons having an interest adverse to those of parties purported to be represented cannot maintain a representa-
tive or class suit on behalf of the latter."
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Xot only must the representative not have adverse interests, but the rep-
resentative's interests must be consonant" with those of other class members.
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nomic loss as the result of his inclusion in the action, the party initiating the class action will therefore have an
interest that is adverse to others in the class he purports to represent.
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Of special note regarding adequacy of representation, at least one Xebraska court has suggested that a non-
class.
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As stated above, if a class action is not manageable it will not be permitted.
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Also, note regarding fairness that
viable."
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and relevant elements therein are discussed above.
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Xebraska being included.

Viller v. City of 0maha, 25 Xeb. 798, 805-806, 57 X.W.2d 121, 127 (Xeb. 1998).
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464, 176 X.W.2d 679 (1970).
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Boiengs 245 Xeb. at 90 (1994) (citing Iuitweiler et al. v. Xorthchester Corp., 456 Pa. 50, 19 A.2d 899 (1974)) (In
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Blankenship v. 0maha, 295 Xeb. at 175-176, 27 X.W.2d at 90.
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minated his insurance policy was not the proper representative for a class consisting of policyholders where there are
tax levy case where some members of a class owned property in both school districts at issue, the suit against one of
the school districts could not be maintained as a class action.)
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VcCroy v. Sprint Communications Co., I.P., 2001 WI 40452 (Xeb. App. 2002) (noting without comment the
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Kosowski v. City of Betterment Corp., 197 Xeb. 402, 405, 249 X.W.2d 481, 48 (1977).
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Iavio v. Xebraska, 280 Xeb. at 270 (2010).
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judgment."
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In 1972, the court allowed an order denying a class action to be appealed in -
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prayed."
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It is clear from subsequent cases that if the court had not dismissed the lawsuit by its order in
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case had not been disposed of.
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In 2001, in considering in
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[Xebraska] still adhere to the general rule which dispenses with such notice in representative actions."
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their attorneys may only communicate with class members who have not opted out with the consent of class
counsel.
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Xebraska has no established law governing settlement class criteria and standards.
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Xeb. Rev. Stat. 25-1902 (Reissue 1979).
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Blankenship at 174, 27 X.W.2d at 89. - Creen v. Terrytown, 188 Xeb. 840, 199 X.W.2d 610 (1972) (dismissal of
one of several defendants must be appealed at the time of dismissal).
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In this action the Iistrict Court sustained that part of the demurrers challenging the class action. Bowever, the
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kenship v. 0maha P.P. Iist., 195 Xeb. 170, 27 X.W.2d 86 (1976). In Blankenship the court granted a motion for
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Keef v. State, 262 Xeb. 622, 61, 64 X.W.2d 751, 759 (Xeb. 2001).
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Cant v. City of Iincoln, 19 Xeb. 108, 112, 225 X.W.2d 549, 55 (1975).
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Xeb. R. Prof 'l Conduct -504.2.
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and orders approving class action settlements.
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action settlements.
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As stated above, Xebraska has no notice requirement for class actions. Xebraska does not have a rule similar to
the federal rule [2] and we still adhere to the general rule which dispenses with such notice in representative
actions."
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Xebraska has no established law governing partial or conditional settlements in the class action setting.
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Inder Xebraska law, [i]n a class action the one bringing the action cannot dismiss the action for reasons personal
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larly situated when substantial rights of other parties have accrued and injustice would result from the dismissal."
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Xebraska has no established law governing distribution of unclaimed settlement amounts.

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ter is a class action, attorneys' fees can be recoverable only if authorized by statute or law. Bowever, attorneys'
fees may be taken from recovered funds if the attorney's services resulted in the rescuing or preserving of a large
amount of property or money.
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Iaith and Credit Clause of the I.S. Constitution also prohibits a Xebraska court from reviewing the merits of a
judgment rendered by a foreign jurisdiction."
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of-
law issues.
Section 6 of the Iestatement lists several factors relevant to the choice-of-law analysis:
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Iavio v. Xebraska Iept. of Bealth 8 Buman, 280 Xeb. 26, 270 (2010).
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Cant v. City of Iincoln, 19 Xeb. 108, 112 (1975).
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Bickman v. Ioup River Public Power Iist., 17 Xeb. 428, 48 (1962).
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Camboni v. County of 0toe, 159 Xeb. 417, 46-47, 67 X.W.2d 489, 502 (1954).
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Ienny Wiekhorst Iquipment, Inc. v. Tri-State 0utdoor Vedia Croup, Inc., 269 Xeb. 54, 60, 69 X.W.2d 506 (2005).
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Walksalong v. Vackey, 250 Xeb. 202, 549 X.W.2d 84 (1996).
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vant policies of other interested states and the relative interests of those states in the determination of the
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application of the law to be applied.
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In applying the principles of ,6, Xebraska courts may also look to ,1!(2), which provides a list of contacts
that should be considered in determining the applicable law, including:
where the relationship, if any, between the parties is centered.
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ute of limitations 'as to all asserted members of the class,' not just as to intervenors."
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Xebraska courts have yet to
apply this precedent to state class actions.
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Crown, Cork 8 Seal C0. v. Parker, 462 I.S. 45, 50 (198).