Materials on Proposed Changes to Rule 23
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Materials on Proposed Changes to Rule 23 Prepared for the First Annual Civil Procedure Workshop July 2015 1 of 234 June 17, 2015 Colleagues, As you know, the Advisory Committee on Civil Rules is presently considering amendments to Rule 23 of the Federal Rules of Civil Procedure. Several members of the Advisory Committee will attend a session of the Civil Procedure Workshop on July 17, 2015, to discuss their work with attendees. I have assembled materials on several of these proposed amendments, should any of you wish to prepare for our roundtable discussion with the Advisory Committee members. These materials consist chiefly of Advisory Committee documents, significant U.S. Court of Appeals decisions on the issues that several of the proposed amendments address, and pertinent sections from the American Law Institute’s Principles of the Law of Aggregate Litigation. I have not included any secondary literature, with the exception of a Judicature article by Richard Marcus introducing the Advisory Committee’s agenda. (Prof. Marcus is the committee’s associate reporter.) If you wish to read more than what I have excerpted here, I have compiled a short list of some additional reading below. The included materials and the suggested articles are based on a judgment as to what would be helpful in getting someone up to speed on the Advisory Committee’s deliberations. They are hardly comprehensive, and I harbor no illusion that I have necessarily identified all the key texts. I’m hopeful that they will help get you started. See you in Seattle, Dave Marcus Professor of Law University of Arizona Rogers College of Law Suggested Additional Reading General • Robert H. Klonoff, The Decline of Class Actions, 90 Wash. U. L. Rev. 729 (2013) • Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale L.J. ___ (forthcoming 2015), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2601132 • Stephen B. Burbank & Sean Farhang, Class Actions and the Counterrevolution Against Federal Litigation, available on SSRN. (Contact David Marcus for a copy if you can’t find it) Settlement Classes • Howard M. Erichson, The Problem of Settlement Class Actions, 82 Geo. Wash. L. Rev. 951 (2014) Issues Certification • Patricia Bronte et al., “Carving at the Joint”: The Precise Function of Rule 23(c)(4), 62 DePaul L. Rev. 745 (2013) • Elizabeth Chamblee Burch, Constructing Issues Classes, __ Va. L. Rev. __ (forthcoming), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2600219 Cy Pres • Rhonda Wasserman, Cy Pres in Class Action Settlements, 88 S. Cal. L. Rev. 97 (2014) • Martin H. Redish, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617 (2010) Ascertainability • Myriam Gilles, Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions, 59 DePaul L. Rev. 305 (2010) • Geoffrey C. Shaw, Note, Class Ascertainability, 124 Yale L.J. 2354 (2015) • John H. Beisner et al., The Implicit Ascertainability Requirement for Class Actions (2014), at http://www.skadden.com/sites/default/files/publications/The%20Implicit%20Ascertainab ility%20Requirement%20for%20Class%20Actions.pdf Rule 68/Rule 23 • Charles Alan Wright et al., Federal Practice & Procedure § 3001.1 (updated 2015) • Jake Starcher, Note, Addressing What Isn’t There: How District Courts Manage the Threat of Rule 68’s Cost-Shifting Provision in the Context of Class Actions, 114 Colum. L. Rev. 129 (2014) Table of Contents 1. Introductory Materials 5 a. Marcus, Once More Unto the Breach 6 b. Standing Committee Report Excerpts 17 c. Rule 23 Subcommittee Report 26 2. Settlement Criteria 68 a. ALI, Principles Excerpt 69 3. Certification of a Settlement Class 77 a. ALI, Principles Excerpt 78 4. Issues Certification 83 a. In re Nassau County Strip Search Cases 84 b. McReynolds v. Merrill Lynch 97 5. Cy Pres 108 a. ALI, Principles Excerpt 109 b. In re Baby Products 118 c. In re BankAmerica 138 d. Lane v. Facebook 151 e. Statement of CJ Roberts, Marek v. Lane 176 6. Offers of Judgment 178 a. Damasco v. Clearwire 179 b. Stein v. Buccaneers Ltd. P’ship 186 c. Gomez v. Campbell-Ewald 198 d. Notice of Grant of Certiorari, Campbell-Ewald 210 7. Ascertainability 211 a. Carrera v. Bayer 212 b. Carrera v. Bayer, en banc opinions 225 c. Lilly v. Jamba Juice 229 8. Tyson Foods 235 a. Eighth Circuit opinion 235 b. Notice of Grant of Certiorari 250 Introductory Materials (1) Richard Marcus, Once More Unto the Breach?: Further Reforms Considered for Rule 23, 99 Judicature 57 (2015). (2) Excerpts from Advisory Committee on Civil Rules, Report to the Standing Committee, May 2, 2015. (3) Excerpts from Advisory Committee on Civil Rules, Rule 23 Subcommittee Report with Appendices, April 2015. 4 of 234 VOLUME 99 NUMBER 1 REPRINTED WITH PERMISSION SUMMER 2015 JUDICATUREThe Scholarly Journal for Judges 6 of 234 JUDICATURE 57 ONCE MORE UNTO THE BREACH? FURTHER REFORMS CONSIDERED FOR RULE 23 by Richard Marcus EVEN HENRY V PROBABLY failing to modify the rule to adapt to warrant attention, as explained below. COULD NOT EXHORT THE evolving litigation conditions might During 2015, work will move forward, RULE MAKERS TO ACTION,1 produce greater problems than under- but the earliest that draft amendments but reported needs of the procedural taking change. could be published for comment would system may do so. Surely the class- The Advisory Committee on Civil be the summer of 2016. This article action rule is one of the most import- Rules has formed a subcommittee to serves as something of an invitation for ant in the rulebook. Equally surely, it consider whether constructive changes reactions to the issues described below has vocal supporters and opponents. can be made to Rule 23, and this arti- and also to suggest additional issues Indeed, it has even attracted inter- cle is designed to introduce the current that may warrant attention. Because national detractors.2 Changing the discussions and invite readers to make the work is moving forward, the earlier rule therefore is a project that must suggestions about them.3 This project comments are received the more help- be approached carefully and deliber- is in its formative stages, and it seems ful they likely will be. ately. Only after much thought should singularly appropriate for this journal It should be clear from the outset, change proceed. Only after further to include a report about the current however, that there is no assurance evaluation, and public comment, orientation. The subcommittee has that any change will actually be should a change be adopted. But already identifed issues that seem to formally proposed. And as the history 7 of 234 58 VOL. 99 NO. 1 of past amendment proposals shows, more functional attitude.8 Although a formal proposal by no means leads As Professor Miller (soon there was some controversy within automatically to an actual amend- to become Reporter to the Advisory Committee about the ment. So it makes sense to begin proposed changes, it is not clear now with the rulemaking background and “ the Advisory Committee) whether the drafters foresaw — or then introduce the ideas now under explained in 1979, some could have foreseen — the variety of consideration. ways in which the rule would be used in subsequent decades.9 As Professor THE PRE-MODERN CLASS on the basis of “rather Arthur Miller, who was present during ACTION the deliberations leading up to the The 1966 amendment of Rule 23 conclusory assertions of 1966 amendments, explained: was the great watershed between the compliance with Rule modern rule and the “pre-modern” The Committee obviously could not class action. As Professor Stephen 23(a) and (b),” and “the predict the great growth in complicated Yeazell has demonstrated,4 the modern procedure fell victim to federal and state substantive law that class action is a lineal descendent of the would take place in such felds as race, medieval group litigation in England. overuse by its champions gender, disability, and age discrimina- In England, that sort of litigation and misuse by some who tion; consumer protection; fraud; prod- was often an in-court expression of ucts liability; environmental protection; an existing social reality. Thus, the sought to exploit it for and pension litigation, let alone the citizens of the Village of X might seek exponential increase in class actions and reasons external to the relief collectively against the lord. In multiparty/multi-claim practice that somewhat the same vein, the American merits of the case.” would fow from the expansion of those Supreme Court in 1853 recognized a legal subjects.10 class action on behalf of some 1500 travelling preachers of the southern But it does seem that the drafters branch of the Methodist Episcopal elect to join the case, but unless they soon realized that new Rule 23 could Church against 3800 travelling did the decree would not bind them. have major importance, and that preachers of the northern branch of Many were unhappy with the oper- changing it could raise major issues. So the church in a dispute over church ation of original Rule 23. Professor they resolved to refrain from consid- property resulting from disputes about Zechariah Chaffee, for example, ering further changes for a quarter slavery.5 criticized it in 1950 on the ground century thereafter.11 Although there was an Equity Rule that he had as much trouble telling a Almost immediately, the rule was that dealt with class actions, there “common” from a “several” right as embraced by some and used in a signif- were not many cases. Nonetheless, telling whether some ties are green or icant number of cases.