Advisory Committee

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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

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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.  

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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

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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…

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. …

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…