Majority of Class Action Publication Notices Fail to Satisfy Rule 23 Requirements

Abstract:     
On December 1, 2003, Federal Rule of Civil Procedure 23 (Rule 23) was amended to require that class action notices in federal court - clearly and concisely state in plain, easily understood language the information that class members need to make an informed decision. In 2000, the Advisory Committee on Civil Rules of the Judicial Conference of the United States had solicited assistance from the Federal Judicial Center (FJC), the research and education agency of the federal judicial system, to draft model notices that would satisfy the plain language requirement.

In this article, notice expert Dr. Shannon R. Wheatman and legal writing expert Dr. Terri R. LeClercq, who worked with the FJC for a number of years to develop the model notices, explain the continuing problems with poorly worded and poorly designed notices. Wheatman and LeClercq report findings from a study of 511 class action notices that were published after the plain language amendment took effect. The research uncovers many shortcomings and the authors offer advice on improving the design and content of class action notice.

Notice has progressed in the years since the passage of the plain language amendment, but it still has a long way to go to realize the Advisory Committee's goals that - "notice be couched in plain, easily understood language" and that practitioners - work unremittingly at the difficult task of communicating with class members. However, class members cannot benefit from Rule 23 if practitioners are not held accountable.

Number of Pages in PDF File: 21

Keywords: class action, notice, plain language, Rule 23

JEL Classification: K19

Accepted Paper Series