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 or near the time it was made.
It is now clear that methods of notice not imagined in 1974 exist and might significantly facilitate the giving of effective, rapid, and much cheaper notice of class certification in 23(b)(3) actions. Similarly, notice of certification of Rule 23(b)(1) and (b)(2) class actions might much easier than previously. In 2001-02, a proposed amendment to require some sort of notice in (b)(1) and (b)(2) cases was vigorously opposed on the ground that the cost would drive away lawyers who might otherwise be willing to take such cases. Perhaps that has also changed.
Attention has therefore returned to the notice topic. Committee members might share their experiences with use of notice by means other than by first-class mail for class actions (perhaps in state court or with regard to settlement approval in federal court), and more general views on the attractiveness of softening the Eisen command.
Improving the notice provisions to take account of technology that will make notice cheaper and more precise is a no-brainer. Courts have for some time accepted web publication as a complement to direct-mailed notice, or in settlement cases, which are bound by different requirements. And emailed notice may also be feasible in many cases, although the Committee would be well-advised to make sure the notice doesn’t simply end up in the recipient’s spam folder.
Making sure the notice doesn’t end up in the Trash folder may be more difficult, however. One of the largest problems with class action notices (whether mailed, emailed, or published somewhere) is that it’s obvious they were written by lawyers: they use small type, opaque language, and take forever to get to the information the absent class member would actually want. These difficulties in part exist because the rules already in place regulating class notice are rarely enforced.
The central problem here may actually be a philosophical one rather than a logistical one. Notice of a class action is generally agreed to be a necessity for due process. But, because it can be so costly and time-consuming, courts often treat it (much as they do the adequacy requirement) as an obstacle to be overcome rather than a requirement to be met. The lax enforcement of the rules regarding notice is evidence of a disturbing tendency to relax the requirements for a class action in order to allow more of them to exist.
As the Supreme Court has recently reminded us, there is no right to bring a class action, and the requirements imposed by Rule 23 are supposed to be difficult to meet. That doesn’t mean that they should be needlessly costly (by, say, imposing a direct-mail requirement when most of the world uses email). But it does mean that we should not sacrifice due process for convenience.