Not Just Alive, But Thriving: Recent Developmentsin Class Action Law, page 2

Not Just Alive, But Thriving (continued)

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New Fed. R. Civ. Proc. 23(f)

Effective December 1, 1998, Subdivision (f) will be added to Rule 23:

"(f) Appeals. A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders."

Numerous other proposed amendments to Rule 23 were proposed but voted down by the Advisory Committee on Civil Rules in October 1997.

Proposed federalization of class actions

The Class Action Jurisdiction Act of 1998 (H.R. 3789) was introduced on May 5, 1998, by Rep. Hyde. The bill would grant the district courts original jurisdiction of all civil actions, regardless of the value of the amount in controversy, that are brought as class actions so long as there is diversity jurisdiction between any member of a proposed plaintiff class and any defendant. The bill was approved for full committee action in June 1998 by the House Subcommittee on Courts and Intellectual Property and currently sits in the House Judiciary Committee.

III. Notice

New modes of notice: internet notice, multi-media notice, and increasing use of notice by publication. (see Diet Drug MDL 1203 Order).

Settlement of Class Actions

Amchem Products, Inc. v. Windsor, ___ U.S. ___, 117 S.Ct. 2231 (1997)

In this landmark decision, the Court affirmed decertification of a settlement class consisting of all persons who were exposed to asbestos products manufactured by one or more of 20 companies. The proposed global settlement included both current and future (i.e. unrealized to date) claims and affected "perhaps millions" of class members. It was based on a complaint, answer, settlement agreement and joint motion for class certification that were all filed within a single day. 117 S.Ct. at 2239.

Unlike the Third Circuit below, the Court held that settlement is relevant class certification: it both eliminated the inquiry regarding the manageability of the action and heightened (or at least did not eliminate) other factors such as protection of absentee class members. id. at 2248. Specifically, the Court found that the class action did not meet the Rule 23(b)(3) predominance requirement and that the parties could not adequately represent the interests of the entire class due to inherent conflicts of interest, especially as to those with future claims.

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