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

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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 were really grounded in constitutional case law

Recently, Baylor Professor Jill Wieber Lens approached the issue from a different perspective: whether a defendant’s insistence on due process in class action practice can be justified–as a policy matter–by either cost or accuracy. Her answer, in … Continue Reading

 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 rebutting the plaintiff’s particularly careless allegations.

DePaul Law professor Mark Moller has written an article for the Utah Law Review, "Class Action Defendants’ New Lochnerism," that looks to investigate the due process argument defendants usually advance. [Disclosure, Professor Moller and I were … Continue Reading

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 the class, instead of themselves?

The latest entrant into this debate is NYU law professor Samuel Issacharoff, with his paper (to be published in the Washington University Law Review) "Assembling Class Actions." 

As Professor Issacharoff understands it, the central problem in … Continue Reading

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 sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived

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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 is not dead.  That said, it’s probably true, to quote plaintiff’s lawyer Daniel Girard, that while the "death of the class action" is overstated, the "Golden Age of the private attorney-general" is over. There were so many interesting opinions in the past year, … Continue Reading

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 to certify a class. To wit:

  • Due process is expensive.
  • Primarily because corporate defendants use procedure as an attrition weapon. (Also, hourly billing encourages defendants to work a "thousand plodding hours" instead of "one brilliant one.")
  • The Class Action Fairness Act (CAFA) just
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