Edited by Albert A. Foer and Jonathan W. Cuneo
Katherine Kinsella and Shannon Wheatman1 Much has been written and discussed about the negative aspects of the American class action model.2 Indeed, the US class action device is far from perfect, and other countries are taking steps to avoid the abusive aspects of class actions in their construction of statutes to govern collective actions. There is, however, an important aspect of the US model that is clearly worth consideration. Over the past 70-plus years, federal and most state laws have evolved safeguards to protect the due process rights of class members. Due process rights are fundamentally at issue in US class actions when notice is required to inform class members about class certification and/or settlement and when a judgment has awarded class-wide relief. The emergence of a global economy now requires US courts to face the dilemma of securing the due process rights of class members around the world.3 In US class action law, which has been carefully crafted to protect the rights of class members, notification plays a prominent role. Although additional international concerns with class actions may remain, the notice provisions required by Rule 23 of the Federal Rules of Civil Procedure4 could provide a model for the development of notice standards in other countries. In 1938, Rule 23 was included in the new Federal Rules of Civil Procedure. The role of notice in class actions was expanded in 1966 when Rule 23 was modified to include the ‘best notice practicable’ standard. Class action notice provisions advanced even...
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