Class action notice is required to be given to all persons who would be affected by the court’s decision. Although it usually is not possible to give every such individual personal notice, all persons who might be affected are entitled to the best notice possible. The court will order that the class representative, through his or her attorneys, make reasonable attempts to notify any unknown class members by general media such as television, an advertisement in a magazine or newspaper, or a posted flyer. People who receive notice of the class action then have the opportunity to join in the action — called “opting in” — or to decide not participate as a member of the class — that is, to “opt out.” In some cases, individuals don’t have the opportunity to opt out. That is, if a class action has been filed over particular injuries caused by a particular defendant, all people who are similarly situated are automatically in the class and must live with the outcome.
For any class certified as class action under Rule 23(b) (1) or (b) (2), the court may direct appropriate notice to the class. Rule 23 of the Federal Rules of Civil Procedure requires notice only to (b) (3) class members, and such notice must be “the best notice practical under the circumstances.”[i] Nevertheless, courts have held that due process requires adequate notice to members of all class actions, including those brought under subsections (b) (1) and (2). For any class certified under Rule 23(b) (3), the court must 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. The notice must clearly and concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
In Mullane v. Central Hanover Bank & Trust Co[ii]., the Supreme Court articulated the standard for notice of a pending class action that would satisfy due process. The Court required individual notice by mail for those persons whose names and addresses were known or could be determined with reasonable effort. However, where notice to other individuals would be impractical – e.g., where the identities of class members are unknowable or where the cost of ascertaining the names and addresses of parties would be considerable – the Court approved of constructive notice by publication.
The class representative is to bear the cost of identifying members of the class[iii] and notifying class members.[iv]
[i] FRCP 23(c) (2)
[ii] 339 U.S. 306 (1950)
[iii] Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978)
[iv] Eisen v. Carlisle & Jacqueli, 417 U.S. 156 (1974)
