Martin H. Redish, Peter Julian & Samantha Zyontz, Cy Pres Relief and the Pathologies of Modern Class Action: A Normative and Empirical Analysis

62 Fla. L. Rev. 617 (2010) | | | |

CASE COMMENT ::The purpose of the modern class action, a procedural aggregation device authorized by Rule 23 of the Federal Rules of Civil Procedure, is to collectivize individual claims into a single proceeding, with the overwhelming majority of the plaintiffs assuming a purely passive role in the proceeding. The procedure is thereby designed to assure efficient resolution of claims too numerous to be joined and too burdensome to be litigated individually. As worthwhile as this concept may sound in theory, however, the harsh realities of the modern class action have demonstrated that its implementation has been far from simple in practice.

In many class actions, the claims of the individual class members are extremely small. Of course, one might argue that it is for exactly such claims that the class action procedure is so well suited, for the very reason that individual suit in such cases would be infeasible. The serious complicating factor, however, is that notifying individual class members of their right to file a claim into a class-wide settlement or award fund will often prove to be both difficult and inefficient. Moreover, even when individual class members have received notification of their rights to compensation from a general fund, their claims will often be so small that their size fails to justify the effort and expense of pursuing those claims on an individual basis. Finally, since generally individual class members will have become part of the class not by affirmatively choosing to enter it but rather by failing to opt out of the class, the court can never be certain that the absent class members are even fully aware of their inclusion in the class in the first place. This is so despite the fact that they likely received formal notification of the suit

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