The Party Status of Absent Plaintiff Class Members: Vulnerability to Counterclaims

Abstract

Class action suits often involve large numbers of plaintiffs who rarely participate in the litigation, and whose status as parties under the Federal Rules of Civil Procedure remains unclear. Professor Steinman proposes a method by which courts can determine whether certain protections or obligations normally reserved for parties should apply to these absent class members. Using the "core characteristics" of parties that Professor Steinman has drawn from the case law, courts will be able to determine the party status of absent plaintiffs in accordance with the policies underlying both the particular federal rule at issue and the rule that governs class actions. Applying her proposed analysis to the question whether absent plaintiffs should be subject to counterclaims, Professor Steinman concludes that in virtually all cases such treatment would be inconsistent with the purposes of the federal rules and the class action device itself.

Keywords: class action, absent class member, counterclaim

JEL Classification: K40, K41