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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In the past few years, the legal academy has become more concerned with the question of how exactly a defendant’s due process rights play out in the class action context.
Last year, DePaul Professor Mark Moller (whose pedigree does not suggest an immediate kinship with plaintiffs’ attorneys) asked whether the due process arguments defendants invoke…
Defendants often argue that limiting the evidence they can produce in a class action violates their rights to due process. It’s an argument we take very seriously, but since it’s usually not the centerpiece of the argument, many defense arguments mention the concept briefly and then move on to the intricacies of Rule 23 or…
One of the primary problems that vexes class-action scholars is often referred to as the "agency problem" (or, more recently, the "governance problem"). In other words, how do we ensure that the people in charge of a class action (nominally the named plaintiff, really the class counsel) actually serve the interests of…
In Wal-Mart Stores, Inc. v. Dukes, Justice Scalia registered his disapproval of using statistics to litigate liability in a class action, writing
The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for
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This was a busy year for class-action jurisprudence. Clearly, most of the Supreme Court cases had some effect on class action practice. But the district and appellate courts also rendered a host of rulings this year that significantly affect class-action practice. Despite what a number of academics and plaintiffs’ lawyers have claimed, the class action…
Noted plaintiffs’ lawyer Elizabeth Cabreser has an article in a recent issue of the Denver University Law Review, Apportioning Due Process: Preserving the Right to Affordable Justice. The article is notable for several reasons, but mostly because Cabreser uses it to tell a story that supports the rhetoric plaintiffs’ lawyers invoke when moving…
