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:
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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
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:
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Rule 23(c)(4) says that “[w]hen appropriate, an action may be brought or maintained as
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.”
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:
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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
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
Year-end lists are funny things. They take a sort-of arbitrary starting and stopping point, and then they cram a bunch of prejudices into a (usually) arbitrary number of items. And then people take them kind of seriously. But they can be handy ways of catching trends one did not see before. And in a year that has seen the beginning of a new debate over the shape of Rule 23, looking at the trends in caselaw can be important. This year’s cases include some pro-plaintiff and some pro-defendant, and some hard to quantify. But most of them are notable … Continue Reading
I’ve written a little so far about the fact that Rule 23 is likely to undergo revision in the next few years. Last week Judge Robert Michael Dow, who is a member of the Advisory Committee on the Rules of Civil Procedure’s Rule 23 subcommittee, spoke at the annual meeting of Lawyers for Civil Justice. He offered an update on what the Rules 23 subcommittee is looking at reforming (what he referred to as their “study agenda”).
As Judge Dow pointed out, the subcommittee is at the beginning of its review, which he called “stage one of a … Continue Reading