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Consumer Class Actions: 9.5.5 Named Plaintiff’s Financial Responsibility for Costs

Plaintiff’s counsel should object to questions asked of the named plaintiff such as, “Do you have the money to pay the costs of sending notice to the class?” Ordinarily, there is no legitimate purpose to such questions. Costs are probably to be advanced by plaintiff’s counsel. In any event, unless the class is large—or unusually extensive discovery and expert costs are expected—costs are not likely to be high.

Consumer Class Actions: 11.1.7 Relationship of Motions to Dismiss and for Summary Judgment to Class Certification Motion

Courts usually rule on a defendant’s motion to dismiss prior to deciding class certification, but generally decide class certification prior to considering a summary judgment motion, unless the defendant consents to the reverse procedure or simultaneous consideration.56 The reasons for the different treatment, and the exceptions to the usual approaches, are addressed below.

Consumer Class Actions: 11.3 Effect of Settlement Certification on Certification in Subsequent Litigation

Sometimes the parties agree that the class should be certified as part of a settlement, but the settlement is then disapproved for reasons aside from class certification, thus also negating the agreement on certification. When the plaintiff proceeds to seek class certification for litigation purposes, the defendant will have a difficult time now claiming that the case does not meet Rule 23 standards (other than trial manageability, which is not a requirement for settlement classes as recognized in Amchem).87 In Carnegie v.

Consumer Class Actions: 11.5 Decertification and Reconsideration Motions

Decertification is governed by Federal Rule of Civil Procedure 23(c)(1)(C), which states that “[a]n order that grants or denies class certification may be altered or amended before final judgment.” This rule authorizes the “court [to] decertify a class at any time before final judgment.”98 Decertification must be justified by post-certification developments.99

Consumer Class Actions: 13.1.1 Overview

One of the most important duties of class counsel is ensuring that class members get helpful information whenever a class is certified and when there is a proposed settlement. Meaningful and timely notice to class members allows them to decide whether to accept or opt out of the certification or settlement and whether to object. Thus, meaningful notice to the class is essential to protect class members’ rights.

Consumer Class Actions: 13.1.2 Mandatory Notice to Rule 23(b)(3) Classes—Rule 23(c)(2)(B)

When a court certifies a class under Rule 23(b)(3), whether on a contested motion or in conjunction with a proposed settlement,9 the federal rules require the court to “direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.”10 The requirements of Rule 23(c)(2)(B)—listed later in this subsection—and federal court decisions provide valuable guidance for deciding what the “b

Consumer Class Actions: 13.1.3 Mandatory Notice of Settlement, Voluntary Dismissal, or Compromise—Rule 23(e)(1)

In addition to notice of certification of Rule 23(b)(3) classes after a disputed class certification motion,30 class counsel must also ensure that a Rule 23(b)(3) class receives notice in the event of any settlement or judgment. If the settlement occurs before the court rules on a contested certification motion, then class counsel usually asks the court to certify the class at the same time as it considers the settlement.

Consumer Class Actions: 13.1.6 Discretionary Notice to Protect Class Members and Fairly Conduct the Action—Rule 23(d)(1)(B)

Courts have discretion to order additional notice at any stage of the proceeding to all or part of the class in order to protect the interests of the class members or for the fair conduct of the action.46 In limited circumstances, a court may even order notice to an uncertified class.47 If the terms of a proposed settlement are amended after notice has been given to the class, it is necessary to reissue notice if the amendment would affect a class member’s decision on whether to submit a cla

Consumer Class Actions: 13.1.7 Potential Need for Notice to Uncertified Class

When a case settles prior to certification on an individual basis—and the entire case will be dismissed—there are circumstances where some form of notice to absent class members is necessary due to the American Pipe rule tolling limitations as to absent class members while the case is pending.51 The need for notice is most acute when there has been press or some other form of public discussion of the lawsuit prior to the individual settlement.

Consumer Class Actions: 13.2 Due Process and Notice Requirements

In order to protect the interests of absent class members, including their interest in not being bound by a judgment in personam,53 class actions must involve adequate procedures to satisfy not only the mandates of Rule 2354 but also the Constitution’s guarantee of due process.55 As the Supreme Court explained in Mullane v. Central Hanover Bank & Trust:

Consumer Class Actions: 13.3.1 Requirements of Rule 23

Rule 23 does not specifically set out the contents of Rule 23(b)(1) and (b)(2) notices.64 However, for Rule 23(b)(3) classes, Rule 23(c)(2)(B) provides a list of the minimum content required for notice to class members, such as the class claims, the right to appear, and the right to opt out.65 In addition to this minimum content, notice of certification of Rule 23(b)(3) classes66 must provide “information that a reasonable person would consid

Consumer Class Actions: 13.3.2 Best Practices

Notice that fails to provide class members with important information does not protect class members’ rights or satisfy due process requirements. On the other hand, long and complicated notices that class members are unlikely to read or understand similarly fail to protect the interests of the class. As previously noted, it’s always wise to avoid providing too much information.