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.Opportunity to join in the action or opt out as a member of the class
Opportunity to join in the action or opt out as a member of the class
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.
The court must direct to class members the best notice that is practicable under the circumstances
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).
The Supreme Court’s standard for satisfying Due Process
The Supreme Court’s standard for satisfying Due Process in Mullane v. Central Hanover Bank & Trust Co., 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 and notifying class members.
Additional resources provided by the author
Timothy L. Miles has dedicated his career to representing shareholders in complex class-action litigation. Whether serving as lead, co-lead, or liaison counsel, Mr. Miles has helped recover hundreds of millions of dollars for defrauded investors, shaped precedent-setting decisions, and delivered real corporate governance reforms. Judges and peers have repeatedly recognized Mr. Miles’ relentless advocacy for shareholders, as well as his unbendable ethical standards. For example, Mr. Miles is a member of the prestigious Top 100 Civil Plaintiff Trial Lawyers: The National Trial Lawyers Association, which is by invitation only and is “extended to those attorneys who exemplify superior qualifications, trial results, and leadership in their respective state based upon objective and uniformly applied criteria.” The National Trial Lawyers Association explained the significance of this honor: “With the selection of Timothy L. Miles by The National Trial Lawyers: Top 100, [Mr.] Miles has shown that he exemplifies superior qualifications, leadership skills, and trial results as a trial lawyer. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research.” Mr. Miles other recognitions include: • The AV® Preeminent™ Rating by Martindale-Hubble® in Securities Law, Litigation and Class Actions (2014-2018). The AV Rating is the highest possible rating given by LexisNexis Martindale-Hubbell Peer Review for a lawyer and is established on a peer-review basis. The AV Preeminent designation signifies that Mr. Miles has been rated by judges and fellow attorneys as having the highest possible rating for legal abilities and ethical standards. The rating is awarded to less than five percent of all attorneys across the United States, and is the highest rating offered by the Martindale-Hubbell Law Directory. • The AV® Preeminent™ Attorney – Judicial Edition, the Highest Possible Rating in Both Legal Ability & Ethical Standard Reflecting the confidential opinions of members of the Bar and Judiciary by Martindale-Hubble (2017-2018). • The Top-Rated Lawyer in Litigation™ for Ethical Standards and Legal Ability by Martindale-Hubble® (Feb. 2015). • Superb Rated Attorney, (10.0 out of 10), the Highest Rating Possible by Avvo. • Avvo Top Rated Lawyer 2017 & 2018 (Avvo). . • America’s Most Honored Professionals – Top 1% (2016-2018) (American Registry). Mr. Miles focuses his practice on securities fraud class actions, shareholder derivative actions, and corporate mergers and acquisitions class actions. .