In August, while we were all on vacation, beating the heat, or recovering from a busy first half of 2016, the Advisory Committee published the new proposed Rule 23 for public comment.
The proposed changes here fall into several categories:
Notice.  Rule 23’s notice provision gets amended to allow for technological change.
Preliminary approval.  Preliminary approval is dead.  Long live preliminary approval!  In other words, the Committee has taken a stand (in its Comment) that the moniker “preliminary approval” is misleading.  But it has explicitly enshrined a reference to the initial hearing where the court determines whether … Continue Reading
Warning: This is another “amending Rule 23 post.”  Regular discussion of actual class action litigation will recommence on Thursday.  While I assisted Lawyers for Civil Justice with its response to the Subcommittee’s proposals, the following is only my personal opinion.
Last week, the Rule 23 Subcommittee released its latest draft proposal for amending Rule 23.  (2015-1105 Rule 23 Subcommittee Report)
The Subcommittee has abandoned (or in a few cases, placed “on hold”) several of its proposed amendments.  Among them:
  • There is no longer an attempt to amend Rule 23(c)(4) to specify that it trumps Rule 23(b)(3).
  • There is
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The Rule 23 amendment process has continued apace.  For those of you who did not read Paul Karlsgodt’s excellent summary of the September 11 mini-conference (which included a number of class-action luminaries from both sides of the aisle), I’d recommend you head straight over to do so.
For the mini-conference, the Rule 23 Subcommittee published its latest thoughts on various topics (click on “Mini Conference Materials), and these are the latest versions of its proposals to debate.
In general, the proposals have improved significantly.  It’s clear that the Subcommittee is listening to reactions from all sides as part of its … Continue Reading
Last week, the Rule 23 Subcommittee of the Federal Rules Advisory Committee published its draft concept amendments to Rule 23.  You can find them here.   (They’re in the April 2015 Agenda Book.)  What follows is my personal reaction to the proposed concept amendments.  They will be subject to public comment, and, I imagine, vigorous further debate.
Here’s the good news.  The Subcommittee has made two completely unobjectionable proposals.  First, it would modify Rule 23(e) to require a statement of any side agreements before an objector withdraws an objection.  Greater transparency is always good.  Second, it would allow for emailed … Continue Reading

The Subcommittee believes that drafting a formal ascertainability requirement is too difficult; it should try nonetheless.

The final topic the Subcommittee has announced it will examine is the possibility of adopting a formal ascertainability requirement. The topic was suggested by several judges of the Third Circuit, who formally requested the Subcommittee consider a formal ascertainability requirement when dissenting from a refusal to hear a Third Circuit ascertainability case en banc. The specific language of that request:

 I suggest that the Judicial Conference’s Committee on Rules of Practice and Procedure look into this matter. Rule 23 explicitly imposes limitations on the

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The Advisory Committee should clarify the role of issue certification, by reinforcing that issue certification is only appropriate when a class is otherwise certifiable under Rule 23.  

One of the Advisory Committee’s “front burner” issues is whether to clarify Rule 23(c)(4), establishing either that it (1) only applies when the rest of Rule 23 has been met, or (2) is an alternative route to certification for plaintiffs willing to narrow the scope of their case. As the Subcommittee Report describes the current state of issue certification:

 Rule 23(c)(4) says that “[w]hen appropriate, an action may be brought or maintained as

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The Advisory Committee has signaled that the merits inquiry is a “back burner” issue for the next Rule 23 amendments.  Perhaps they should nudge it towards the front. 

 The role of the merits inquiry at certification is of vital interest to litigators, but less so to policymakers.  The Rules 23 Subcommittee, in the report from its October meeting, pointed out that, as far as it was concerned, the role of the merits inquiry did not rate a place on the “front burner.”

It’s clear why it came up, however.  Plaintiffs (and their advocates in academia) do not like the current … Continue Reading

Courts look down on offers of judgment in class actions as a procedural trick.  Used properly, however, they are an effective early screen for cases that can’t be certified. 

One of the most heated debates in the last five years of class action practice has been the proper use of Rule 68’s offer of judgment.  Defendants like the offer of judgment because it can either moot a case early in (thus shutting down lawsuits that could cost hundreds of thousands of dollars to defeat in conventional litigation), and because the cost-shifting procedures place some of the financial risk of the … Continue Reading

Provisions to make notice of class certification cheaper and more effective are welcome, but they should also focus on making it more accessible once it arrives.

The Rule 23 Advisory Subcommittee is also looking at revising the provisions for class action notice.  From the report on its October meeting:

 In Eisen, the Supreme Court ruled in 1974 that only first- class mail notice of class certification in 23(b)(3) cases satisfies the rule. It seemed to have due process concerns in mind as well as interpreting Rule 23. It is clear that many regarded this ruling as unfortunate at

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Cy pres is an occasionally useful tool.  But limiting or eliminating it would clarify the underlying principles of the class action.   

In the last five years, the use of cy pres relief in settlements has become particularly controversial.  Various appellate courts have expressed suspicion about the use of cy pres in questionable settlements.  Even Justice Roberts has signaled that, given the right vehicle, he would like the Supreme Court to review the fairness of cy pres distributions.  Much of the controversy stems from two issues: (1) the potential for abuse of cy pres relief to inflate the value of bad … Continue Reading