Class Actions for Monetary Relief Under Rule 23(b)(1)(A) and (b)(1)(B): Does Due Process Require Notice and Opt-Out Rights?

36 Pages Posted: 13 Feb 2013 Last revised: 9 Jul 2014

Date Written: February 12, 2013

Abstract

The courts are in disarray regarding the due process rights of absent class members in mandatory Rule 23(b)(1)(A) and (b)(1)(B) class actions involving money damages. That confusion is the result of a series of Supreme Court decisions, culminating in Wal-Mart Stores, Inc. v. Dukes in 2011, where the Court suggested in dictum that the Due Process Clause requires that absent class members be given notice and the right to opt out of class suits involving money damages. After examining the history and purpose of Rule 23(b)(1)(A) and (b)(1)(B), and after considering the due process issues raised by such classes, this Article concludes that due process requires reasonable notice in (b)(1) suits involving money. Notice enables class members to monitor the litigation and, if necessary, intervene. By contrast, due process does not require opt-out rights. Indeed, were opt-out rights required, the entire purpose of a (b)(1) class - to protect the rights of the defendant or absent class members - would be thwarted.

Keywords: class action, mandatory class, due process, notice, class notice, opt out, opt-out rights, Rule 23(b)(1), Rule 23(b)(1)(A), Rule 23(b)(1)(B), Shutts, Wal-Mart, Dukes, Ticor, limited fund, Ortiz

Suggested Citation

Klonoff, Robert H., Class Actions for Monetary Relief Under Rule 23(b)(1)(A) and (b)(1)(B): Does Due Process Require Notice and Opt-Out Rights? (February 12, 2013). George Washington Law Review, Vol. 82, 2013, Lewis & Clark Law School Legal Studies Research Paper No. 2013-5, Available at SSRN: https://ssrn.com/abstract=2216082

Robert H. Klonoff (Contact Author)

Lewis & Clark Law School ( email )

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