This Year’s 18th Annual Institute on Class Actions Breaks New Ground

This year’s ABA 18th Annual Institute on Class Actions delivered a first to a capacity crowd of over 200 attorneys, judges and academics on October 23-24 at Chicago’s Wit Hotel: a town hall session with the Rule 23 Subcommittee of the Advisory Committee on Civil Rules.  Subcommittee Chair Hon. Robert M. Dow Jr. presided over a panel comprised of Advisory Committee Reporter Prof. Edward Cooper (Univ. of Michigan Law School), Assoc. Reporter Prof. Richard Marcus (UC Hastings College of the Law), Prof. Robert Klonoff (Lewis & Clark School of Law), Elizabeth Cabraser (Lieff Cabraser Heimann & Bernstein, San Francisco) & John Barkett (Shook Hardy & Bacon, Miami). Judge Dow and his co-panelists gave a brief background of the structure and process of the rules-setting process, and then turned the mic over to the floor where attendees raised concerns about Rule 23 in its current form and operation, and how it might be improved.

Among the “front burner” subjects that have been suggested for possible future rulemaking are:

  • settlement classes
  • objectors
  • issue classes

Katherine Kayatta (Pierce Atwood, Boston) presented a summary of the results of an ad hoc committee of plaintiff and defense counsel’s deliberations, organized by Institute Chair Daniel Karon. Perhaps not surprisingly the one consensus of the group was that the role of “professional objectors” to class settlements  should be addressed by the Rules Committee. While members of the ad hoc committee gave (to my ear) grudging acknowledgment that objectors “have a role to play” (an observation made all but obvious after last summer’s Pella Windows opinion in the Seventh Circuit by Judge Posner), both plaintiff class counsel and defense counsel plainly communicated their collective desire for rule changes to expose (and allow judges to take account of) conflicts of interest between objectors’ counsel and the class, including on appeal. Reporter Prof. Cooper reinforced the appropriateness of communicating to this Subcommittee desired rules changes that might require corresponding changes to the appellate rules, as he emphasized that the Advisory Committee frequently works hand-in-glove with the appellate rules committee to address such proposed changes.

Other “side burner”/proposed topics that were voiced included possible rules changes addressing electronic and social media forms of class notice; so-called “ascertainability” requirements; and the issue of class representative standing. Several attendees (and panelists) voiced preferences that the Subcommittee *not* propose rules changes (e.g., regarding issue classes), taking the position that it is for the courts to work out what the rules mean in various situations (and, presumably, for the Supreme Court to resolve any circuit splits).

The feedback to the Rule 23 Subcommittee did not stop at the end of the town hall session. Throughout the two-day Institute, Subcommittee members solicited–and panel and audience members directed–frank comments to the members of the Subcommittee who attended the remaining sessions.

One member of the Subcommittee mentioned that most Subcommittee members’ email addresses are publicly available and encouraged the audience to contact them with input. (To that end I have listed publically-available emails of Subcommittee members below.) There does not appear to be a great rush, however: the rules deliberation process is a long, and we are likely several years away from changes (if any) to Rule 23. Still, the sooner one gives his or her input the more likely it is that it will influence the Subcommittee and, potentially, the full Advisory Committee and the Supreme Court.

Speaking as an organizer of the Institute for several years (and a long time attendee before becoming so), it was a thrill to have the Subcommittee’s participation this year. Without doubt it–along with the other terrific programing–energized the conference.

My personal thanks to the Subcommittee members–and in particular to Prof.  Cooper, Judge Dow, and John Barkett–and to Planning Committee Chair Dan Karon, for making this happen.  A special thanks, too, to Prof. Marcus for his patience in attending the other sessions and his zeal for soliciting input from panelists and attendees. Rules 23, the bench, the bar and our clients will be better off for it.  Drew.

Emails of members of the Rule 23 Subcommittee of the Advisory Committee on The Federal Rules of Civil Procedure: