In prosecuting or defending a class action in Nebraska state court or when making the determination as to whether or not to remove a class action from Nebraska state court to the federal court, one must take into consideration the vagaries of Nebraska state law regarding class actions. Class actions in Nebraska are controlled by Neb. Rev. Stat. § 25-319 which provides that:
[w]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 for the benefit of all.
While this statute does reference the numerosity and commonality requirements of Federal Rule of Civil Procedure 23(A)(1)and (2), it does not reference the typicality or adequacy requirements of FRCP 23(A)(3) and (4). Likewise, Nebraska law provides no corresponding statutory provisions to FRCP 23(B) or other subsections for that matter. Class action law in Nebraska state courts is generally undeveloped. However, Nebraska has adopted various basic tenets of federal class action law. For example, the Nebraska Supreme Court has referenced the predominance requirement contained in FRCP 23(B)(3) in Gant v. City of Lincoln, 193 Neb. 108, 109, 225 N.W.2d 549, 551 (1975)(stating that "the questions of law and fact presented were common to all and definitely predominated over individual interests"). Nebraska courts have implicitly adopted the typicality requirement by holding that a party having an interest adverse to other members of the class cannot sue as a representative of the class. See e.g. Sarrat v. Lincoln Benefit Life Co., 212 Neb. 436, 323 N.W.2d 81 (1982); Riha Farms, Inc. v. County of Sarpy, 212 Neb. 385, 322 N.W.2d 797 (1982). Class actions may be properly attacked at the pleading stage and/or prior to discovery. See Twin Loups Reclamation Dist. v. Blessing, 202 Neb. 513, 276 N.W.2d 185 (1979). Broad discretion is vested in the trial court to determine whether a class action is properly brought. See Benesch v. City of Schuyler, 5 Neb. App. 59, 555 N.W.2d 63 (1996).
The Nebraska Supreme Court has recognized that the policy underlying the Nebraska class action statute appears to be the same as that underlying FRCP 23. See Blankenship v. OPPD, 195 Neb. 170, 237 N.W.2d 86 (1976). To that end, the precepts of FRCP 23 may be used to supplement analysis of class action questions under Nebraska law.
In summary, one must weigh the pluses and minuses of Nebraska's bare bones class action statute and relatively undeveloped case law when faced with a choice of venue.