Chapter § 5.10 Post-Certification Case Management

• Jurisdiction: United States
• Publication year: 2020

§ 5.10 Post-Certification Case Management

After certification of a class and before resolution of the class action by trial or otherwise, the court’s role in managing the suit is primarily centered on the broad administrative powers granted to it by Rule 23(d). Specifically, in “conducting an action under this rule, the court may issue orders” that (1) determine the course of proceedings or prescribe measures to prevent undue repetition or complication (2) give appropriate notice to some or all class members of the status of the action and their opportunity to participate in it (3) impose conditions on the representative parties or on intervenors and (4) require that the pleadings be amended to eliminate allegations about representation of absent persons, among issuing orders dealing with other procedural matters.¹⁹⁷

Rule 23(c)(2) governs the provision of notice to members of the class. For classes certified under Federal Rule 23(b)(1) and 23(b)(2), “the court may direct appropriate notice to the class.”¹⁹⁸ For classes 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.”¹⁹⁹ The notice to members of a 23(b)(3) class “must clearly and concisely state in plain, easily understood language,” (1) the nature of the action; (2) the definition of the class certified; (3) the class claims, issues, or defenses; (4) that a class member may enter an appearance through an attorney if the member so desires; (5) that the court will exclude from the class any member who requests exclusion; (6) the time and manner for requesting exclusion; and (7) the binding effect of a class judgment on members under Rule 23(c)(3).²⁰⁰ The notice may be by “United States mail, electronic means, or other appropriate means.”²⁰¹ Many notice plans are utilizing several types of media to notify class members, including social media campaigns, radio advertising, email notices, direct mailings, and posters.²⁰²

Furthermore, the court has the authority under Rule 23(d) to manage communications among parties, counsel, and class members.²⁰³ The court may impose sanctions or other curative measures “to ensure the integrity of the proceedings and the protections of the class.”²⁰⁴ The court also has the responsibility to establish appropriate procedures for members to opt out of the class, but “[c]ounsel should maintain careful...