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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…
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…
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…
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
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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…
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…
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 …
For a long time, I have had a very specific law review article I’ve wanted to write, but with my many other commitments, it has never come to fruition. And, given my schedule coming up, it’s unlikely it ever will. But I do have this blog, so why not just outline the idea here?
Scholars…
