PUBLIC HEARING ON

PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF CIVIL PROCEDURE

JUDICIAL CONFERENCE

ADVISORY COMMITTEE ON CIVIL RULES

U. S. District Courthouse

Phoenix, Arizona

January 4, 2017
List of Confirmed Witnesses for the

Public Hearing on Proposed Amendments to the

Federal Rules of Civil Procedure

Judicial Conference 

Advisory Committee on Civil Rules

U. S. District Courthouse

Phoenix, Arizona

January 4, 2017 – 9:00 A.M.

Witness Name Organization Testimony/Comments Received

1. Jennie Lee Anderson Andrus Anderson LLP Tab 1

Testimony outline dated 12/20/2016

2. Thomas Sobol Hagens Berman Sobol 

Shapiro LLP

Tab 7

Testimony dated 1/4/2017

3. Jocelyn D. Larkin Impact Fund Tab 2

Comments dated 3/25/2015 and 

9/4/2015

4. Michael R. Nelson Sutherland Asbill & Brennan No testimony or comment received

5. Annika K. Martin Lieff Cabraser Heimann & 

Bernstein

No testimony or comment received

6. Todd B. Hilsee The Hilsee Group LLC Tab 3

Testimony outline dated 12/20/2016; 

Comment dated 10/31/2016, along with 

attachments of Comments dated 

3/23/16 and 5/24/2016

7. Paul Bland Public Justice Tab 4

Comments dated 3/27/2015 and 

9/8/2015

8. James E. Weatherholtz Womble Carlyle Sandridge & 

Rice, LLP

Tab 5

Testimony Outline dated 12/30/2016; 

Comment dated 9/10/2015

9 Scott Burnett Smith Bradley Arant Boult 

Cummings LLP

Tab 6

Testimony outline dated 12/19/2016

10. Patrick J. Paul Snell & Wilmer LLP See Tab 5
TAB 1

TESTIMONY OUTLINE OF 

JENNIE LEE ANDERSON, ANDRUS ANDERSON LLP
Dear Ms. Womeldorf, 

Below is a summary of the anticipated focus of my testimony at the January 4, 2017 hearing. Thank you very much 

for your attention.

Proposed RULE 23 TESTIMONY –Jennie Lee Anderson

I. Amendments to Notice Provisions in 23(c)(2)(B)

z We support the committee’s proposal. Specifically, support the allowance of mixed notice (both 

certified mail and electronic). In our experience, mail notice is not the only vehicle available, and 

what type of notice is appropriate depends on the circumstances. 

II. Amendments to 23(e)(5) Addressing Objectors 

z We applaud the committee for trying to address the problem because it affects parties and counsel 

on either side of the “v”. We believe that it is important to provide balance because the right and 

ability to object when appropriate to ensure fairness is critical. However, the issues created by serial 

objectors who bog down good settlements highlights why reform here is needed. We believe that the 

court approval provisions will help, but it may not be enough to fully remedy the issue. But that 

doesn’t mean this proposal isn’t worth trying. As such, it is important for the Committee to make 

sure that the rules are working as intended, and anticipate that future adjustments and/or 

coordination with the Appellate Rules Committee may be necessary.

Sincerely, 

Jennie Lee Anderson

Andrus Anderson LLP

155 Montgomery Street, Suite 900

San Francisco, CA 94114

Tel: (415)­986­1400

www.andrusanderson.com

CONFIDENTIALITY NOTICE: This email message may contain privileged and confidential information protected from 

disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that 

you have received this e-mail message in error, please e-mail the sender at contact@andrusanderson.com.

CONFIDENTIALITY NOTICE: This email message may contain privileged and confidential information protected from 

disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that 

you have received this e-mail message in error, please e-mail the sender at contact@andrusanderson.com.

Proposed Rule 23 Testimony for Jennie Lee Anderon

Jennie Anderson 

to:

rebecca_womeldorf

12/20/2016 04:21 PM

Cc:

frances_skillman

Hide Details 

From: Jennie Anderson <jennie.anderson@andrusanderson.com>

To: rebecca_womeldorf@ao.uscourts.gov

Cc: frances_skillman@ao.uscourts.gov

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file:///C:/Users/Frances%20Skillman/AppData/Local/Temp/notesD30550/~web3930.htm 12/20/2016
TAB 2

COMMENTS OF

JOCELYN D. LARKIN, IMPACT FUND
= IMPACT FUND 

125 University Avenue, Suite 102, Berkeley, CA 94710-1616 

Tel 510.845.3473 I Fax 510.845.3654 I impactfund@impactfund.org I www.impactfund.org 

March 25,2015 

Electronic Delivery to rules support@ao.uscourts.gov 

Committee on Rules of Practice and Procedure 

Thurgood Marshall Building 

Administrative Office of the United States Courts 

One Columbus Circle NE 

Washington D.C. 20544 

To the Members of the Advisory Committee on Civil Rules and the Rule 23 Subcommittee: 

The purpose of this letter is to offer a number of suggestions in connection with the 

Committee's upcoming review of Rule 23. 

Rule 23 is of keen interest to the Impact Fund because our mission is to support firms and 

organizations that bring public interest class action cases throughout the United States. The 

Impact Fund, a legal non-profit, awards grants to help defray litigation costs and offers training 

programs and consultation for practitioners involved in complex litigation to advance social 

justice. The Impact Fund has also served as lead counsel in a number of major civil rights class 

actions, including cases challenging employment discrimination, lack of access for those with 

disabilities, and violations of fair housing laws. Through the California State Bar Trust Fund 

program, the Impact Fund is a designated support center on complex litigation issues for legal 

services programs throughout California. 

The Impact Fund has frequently commented on proposed changes to the Federal Rules of 

Civil Procedure and participated in the Advisory Committee's public hearings. I was an invited 

speaker at the Duke Conference in May 2010. The Impact Fund endeavors to represent the 

perspective of individuals and communities who do not have the resources to litigate in the 

federal courts on their own behalf and who rely on class action impact cases as their only viable 

means for redress. 

1. NOTICE 

Adequate notice is a central pillar of class action jurisprudence and is critical for ensuring 

that the due process rights of absent class members are protected. The Rules Committee 

recognized in 2003 that "[i]t is difficult to provide information about most class actions that is 

both accurate and easily understood" but reminded" us of "the need to work unremittingly at the 

difficult task of communicating with class members." 

The 2003 amendment requiring that notice be in "plain, easily understood language" was 

an important first step. The Federal Judicial Center model class notices and its "Judges' Class 

Action Notice and Claims Process Checklist and Plain Language Guide" are also excellent 

Strategic Litigation for Social Justice 
Advisory Committee on Civil Rules 

Judicial Conference of the United States 

March 25,2015 

resources. Some judges do closely review notice language and direct parties to change or 

improve the quality and readability of notices. 

a. Proposal that Notices Be In "An Easily Readable Format" 

Unfortunately, these efforts have not been enough. Inscrutable class action notices 

remain the norm. Even apart from the unnecessary legalese, notices often use very small font 

and leave only narrow margins with very little white space. Postcard notices, which at least have 

the virtue of brevity, often suffer these same formatting defects. Even before reading (or trying 

to read) a word, the reader is deterred by the small dense text and uninviting visual presentation. 

The costs of poor notice are, of course, significant. Class members do not understand nor 

exercise their rights, resulting in low claim rates. Objections based on a misunderstanding of the 

terms of the settlement waste judicial resources. Misperceptions and cynicism about class 

actions follow. 

Accordingly, we propose that Rule 23(c)(2)(B) be amended to read: 

The notice must be in an easily readable format and clearly and concisely state 

in plain, easily understood language ... 

b. Proposal to Expand Required Notice Information 

Recent research that the Impact Fund commissioned suggests that even a notice written in 

plain English can still miss the mark. Across economic and educational levels, the participants 

in our focus groups understood very little about how class actions work. They did not 

understand how cases start, the oversight role of the court, the certification process, or how 

individual settlement shares are calculated. They did not understand the role of lawyers, how 

their fees are calculated, or that attorneys' fees are subject to court review and approval. When 

asked about their primary information sources concerning class actions, virtually all listed class 

notices - "the postcard." 

While none of this is new to seasoned notice professionals, our research suggests that 

judges and lawyers are assuming a baseline understanding of class actions among putative class 

members that may not accord with reality. Without a grasp of these basics, class members are 

unlikely to understand the seven enumerated topics included in a Rule 23( c )(2)(B) notice. The 

FJC model notices provide useful language that explains these concepts, but none of this 

information is required by the rule. Indeed, these concepts are typically consigned to a lengthy 

(and often circular) list of "Defined Terms," without any coherent narrative or context. 

Accordingly, we propose that Rule 23(b )(2)(B) include a new romanette (i), with 

subsequent items re-numbered: 

(i) an explanation of the class action procedure, including the role of the 

court, the named plaintiffs and class counsel; 

2 
Advisory Committee on Civil Rules 

Judicial Conference of the United States 

March 25,2015 

While this additional information is no panacea, it will serve to remind counsel about drafting the 

notice with the actual reader in mind, and it will provide class members with a clearer 

understanding of their rights. 

c. Use Notice Checklist to Develop Practitioner Protocol 

As noted above, the "Judges' Class Action Notice and Claims Process Checklist and 

Plain Language Guide" is an excellent tool but something that few practitioners use or even 

know about. While not a rule change proposal, we would suggest that a practitioner protocol, 

like the Northern District of California's e-discovery protocol, be developed to guide the parties' 

notice negotiations long before the draft notices reach the district court for review. 

d. Use of Electronic Notice Alternatives 'Should be Explored But With 

Recognition of the Continuing Digital Divide 

The Impact Fund supports the Committee's plan to evaluate the use of electronic methods 

for dissemination of class notice. This evaluation should, however, recognize that large 

segments of the U.s. population still do not have access to, or regularly use, the Internet. While 

those numbers continue to decline, the digital divide persists. 

According to a 2014 report from the Census Bureau, one in four U.s. households (25.6%) 

does not have Internet access at home. www.census.gov/history/pdf/2013computeruse.pdf. Not 

surprisingly, figures for Internet use are significantly lower for low-income families (48.4% for 

households making less than $25,000 annually) and those individuals with less than a }1ig...h. 

school education (43.8%). Rates of Internet use for older Americans (58% of households over 

65), Blacks (61 %), Hispanics (66%) and persons with disabilities (63.8%) are also lower than the 

national average. Id. 

As class actions are often used to address injuries suffered by those who do not have the 

ability or resources to access the legal system on their own, any rule changes to enhance the use 

of electronic notice should ensure that these groups will still receive appropriate notice. 

e. Notice in Rule 23(b)(2) Cases - The Current Standard Remains Appropriate 

It has been suggested that the Committee might want to revisit whether notice should be 

mandatory for cases certified under Rule 23(b )(2). In 2003, the Committee vigorously debated 

the issue. Because monetary claims (i.e. Title VII back pay claims) were being certified under 

23(b )(2) as incidental to injunctive relief claims, a question was raised whether due process 

required notice and opt-out rights. Civil rights advocates (including the Impact Fund) were 

concerned, however, that imposing the costs of first class notice in (b )(2) cases might prevent 

meritorious civil rights claims from ever being brought. The Rules Committee ultimately added 

language to the rule permitting-but not requiring-a district court to direct "appropriate notice 

to the class." 

In our view, there is no reason to revisit that debate because the Supreme Court's 

decision in Wal-Mart Stores v. Dukes, '131 S. Ct. 2541 (2011), has largely mooted the question. 

3 
Advisory Committee on Civil Rules 

Judicial Conference of the United States 

March 25,2015 

In Dukes, the Court held that Title VII class actions seeking back pay remedies should be 

considered for certification under Rule 23(b)(3). Id. at 2559-2561. The ruling had the effect of 

significantly narrowing the types of cases that may be certified under Rule 23(b )(2). Since 

Dukes, Rule 23(b )(2) certification has been used, almost exclusively, for purely injunctive relief 

cases seeking systemic institutional reform. The remedies sought in these cases-on behalf of 

the incarcerated, persons with developmental disabilities, and children in foster care, among 

other vulnerable groups-typically are not personal to the class members, but rather seek to 

enjoin an illegal system, practice or regulation. 1 Resolution of these cases generally does not 

impair the ability of the individual class members to seek individual, non-systemic remedies, 

significantly diminishing the argument for requiring first class notice in all (b )(2) cases. The 

current rule provides courts with broad and sufficient latitude to provide notice appropriate to the 

case. 

2. CYPRES 

Federal law has long recognized the use of the cy pres remedy as an appropriate means to 

dispose of unclaimed funds in class action settlements. The American Law Institute's Principles 

of Aggregate Litigation similarly endorsed the use of a cy pres remedy. The alternative-a 

reversion to the defendant of unclaimed funds-undermines the deterrent purpose of the 

litigation, and, particularly in employment cases, creates a strong incentive for the defendant to 

actively deter the filing of claims by vulnerable employees. 

Despite this, the propriety of cy pres has been challenged over the past several years by 

professional objectors, and at least one academic. But contrary to the suggestion of some critics, 

cy pres distributions are not random gifts bestowed on the pet charities of the parties or the 

judge. Instead, cy pres funds are providing, in many cases, a vital source of funding to legal 

services programs across the country. In 2014, 38 California State Bar-funded legal services 

programs received a total of$7.9 million, to provide a range of legal 'services to the more than 8 

million Californians who qualify for legal aid. This source of funding is considered so important 

to filling the state's "justice gap" that the California State Bar has established a cy pres 

1 See e.g., Reid v. Donelan, 2014 WL 545144 (D. Mass. Feb. 10,2014) (certifying a class of noncitizens who are or will be held in immigration detention in Massachusetts for over sixth months 

without an individualized bond hearing); Hernandez v. County o/Monterey, No. 13-02354 (N.D. 

Cal. January 29,2015) (certifiying a class of plaintiffs challenging the conditions at the 

Monterey County jail, as well as a subclass of inmates with disabilities); DL v. District 0/ 

Columbia, 2013 WL 6913117, at *17 (D.D.C. Nov. 8,2013) (challenging systemic failures in 

district's special education system; four sub-classes certified); Kenneth R. ex rei. Tri-Cnty. CAP, 

Inc./GS v. Hassan, 293 F.R.D. 254, 271 (D.N.H. 2013) (certification of class challenging the 

institutionalization of people with serious mental illnesses); Toney-Dick v. Doar, 2013 WL 

5295221, at *13 (S.D.N.Y. Sept. 16,2013) (class of indigent, disabled New Yorkers denied 

benefits in the aftermath of Hurricane Sandy); Connor B., ex reI. Vigurs v. Patrick, 278 F.R.D. 

30,36 (D. Mass. 2011) (class of children challenging systemic deficiencies in the state foster 

care system). ' 

4 
Advisory Committee on Civil Rules 

Judicial Conference of the United States 

March 25,2015 

committee to provide resources to practitioners who want to include cy pres provisions in their 

class action settlements. www.caforjustice.org/about/cypres. Thus, in this era of ever-declining 

court budgets, cy pres awards are helping to ensure access to justice for those who cannot afford 

to hire a lawyer to protect their rights. 

In recent years, federal courts have developed useful parameters for how and when the cy 

pres remedy can be used in a class action settlement. We believe that a rule that memorializes 

these standards would serve to guide parties and courts, and deter unnecessary objections. 

Proposal for Cy Pres Language to be Added to Rule 23 

New Rule 23(e)(3): 

(3) A class action settlement may provide for a cy pres distribution for all or part of the 

class fund in appropriate circumstances, including when the funds remaining after 

distribution are too small to justify the cost of a further distribution, or when a segment of 

the class members cannot be located. In determining the propriety of a cy pres 

distribution, the court 

(a) must consider: 

1. whether, in lieu of a cy pres d.istribution, distributing the funds directly to 

class members in amounts consistent with their damages would be feasible 

and administratively practicable; 

2. whether the mission of the proposed cy pres recipient(s) is consistent with the 

purpose of the litigation and the underlying legal claims; 

3. whether the location or geographic service area of the proposed cy pres 

recipient(s) is consistent with that of the class, or the portion of the class that 

cannot be located; and 

4. whether the funds, once distributed to the cy pres recipient(s), will be free of 

any control by the defendant. 

(b) may consider any other matter pertinent to ensuring that the cy pres 

distribution is appropriate. 

5 
Advisory Committee on Civil Rules 

Judicial Conference of the United States 

March 25,2015 

Thank you for the opportunity to provide our suggestions and views to the Committee. 

We would be pleased to discuss them further. 

Yours very truly, 

U/-

elyn D. Larkin 

ecutive Director 

6 
= IMPACT FUND 

125 University Avenue, Suite 102, Berkeley, CA 94710-1616 

Tel 51 0.845.3473 I Fax 510.845.3654 I impactfund@impactfund.org I www.impactfund.org 

September 4,2015 

Electronic Delivery to rules support@ao.uscourts.gov 

Committee on Rules of Practice and Procedure 

Thurgood Marshall Building 

Administrative Office of the United States Courts 

One Columbus Circle NE 

Washington D.C. 20544 

To the Members of the Advisory Committee on Civil Rules and the Rule 23 Subcommittee: 

The purpose of this letter is to provide some initial comments on several of the rule 

amendment sketches in advance of the September 11 Mini-Conference on Rule 23 Issues. The 

Impact Fund previously submitted comments and proposed rule changes to the Committee on 

March 25,2015, and looks forward to participating at the conference next week. 

FRONT-LOADING PROPOSAL AND CLASS NOTICE 

The list of items for disclosure is, with a few exceptions, consistent with the evidentiary 

presentation that good practitioners already submit to courts when requesting preliminary 

approval of a settlement and notice plan. Enumerating these categories might provide useful 

guidance for the bench and bar. We would quibble with a few items on the list (e.g. a description 

of every document produced, a stack of insurance policies). We also question the mandatory 

nature of all sixteen items, because some will not be available, will legitimately be confidential, 

or will be inapplicable to the particular case. That problem could be solved with language 

allowing for "good cause" or "where relevant" exceptions. 

While this bevy of information may be helpful for judges in making the fairness 

determination, we do not think that the additional information is at all useful to class members, 

except perhaps to the most sophisticated objectors. As noted in our March 25,2015 letter, the 

rule presumes vastly more understanding and knowledge of class actions on the part of unnamed 

class members than conforms with reality. What would a class member make of information that 

an insurance company is defending under a reservation of rights, that forty requests for 

admission were served, or that the anticipated "take-up" rate is 32%? If the Committee wants to 

help class members better understand the process and proposed settlement, then the rule needs 

much stronger requirements about simple and easily readable class notices. If the "front-loaded" 

information is to be made available to class members on a website, it similarly must be presented 

Strategic Litigation for Social Justice 
Advisory Committee on Civil Rules 

Judicial Conference of the United States 

September 4,2015 

in a user-friendly fashion suited to the audience. This presentation is not the same as what a 

federal judge needs or wants. 

CY PRES PROPOSAL 

The Impact Fund proposed a cy pres rule in our March 25,2015 comments and we are 

pleased that the Committee is considering one. A few comments: 

• Reversion - The Committee Note raises the possibility of preserving the option of 

funds reverting to the defendant in lieu of cy pres distribution. We strongly urge 

the Committee not to adopt any language like this in the rule or the comment, 

because it will increase the opportunities for collusion and abuse. In the 

employment context, a reversion creates an incentive for an employer to pressure 

vulnerable class members not to submit claims. In other types of cases, the 

prospect of a reversion gives defendants a motive for negotiating onerous claimfiling requirements. Professor Rubenstein and the FJC have both highlighted this 

factor (i.e. cumbersome claims procedure with reversion) as a "red flag" 

indicating a potentially abusive class settlement. W. Rubenstein, NEWBERG ON 

CLASS ACTIONS, §13.58 (5TH Ed. 2014); Manual for Complex Litigation, 

Fourth, §21.61. When the Committee is working hard to reduce the incidents of 

collusive settlements, it is counterproductive to re-open one of the most obvious 

mechanisms for abusive agreements. 

• Conflict of Interest Unaddressed - The small, but vocal, group of cy pres 

opponents most often cite the fear that the money will go to the "pet charity" of 

the party, judges or lawyers. The Committee's proposal does not address this 

concern. 

• Cy Pres in "Rare" Cases - The note suggests that cy pres will only be necessary 

in "rare" cases, when the money cannot be efficiently distributed to class 

members. We would suggest, and professional claims administrators can 

confirm, that there is a residual in every monetary class settlement. With each 

successive distribution to class members, fewer will bother to cash the checks in 

diminishing amounts. An estimated reserve is held back to pay the claims 

administrator to ensure that taxes are paid and the settlement account is properly 

closed once distributed. As a result, the Impact Fund receives cy pres checks in 

amounts as small as a few hundred dollars, reflecting a highly successful claims 

distribution. Thus, the note should correctly reflect that residuals (of varying 

amounts) will frequently require disposal. 

2 
Advisory Committee on Civil Rules 

Judicial Conference of the United States 

September 4, 2015 

• Fallback Recipient - Unlike the ALI principles, the rule sketch does not address 

how to select a recipient in the event that there is not one "whose interests 

reasonably approximate those being pursued by the class." Numerous courts have 

recognized that organizations that provide access to justice for low-income people 

are appropriate beneficiaries of cy pres funds. See William Boies & Latonia 

Haney Keith, Class Action Settlement Residue and Cy Pres Awards: Emerging 

Problems and Practical Solutions, 21 Va. J. Soc. PoPy & L. 267, 290 n.ll (2014). 

• "If Authorized by Law" - This language creates uncertainty and invites further 

litigation. 

• Paying Untimely Claims - While superficially appealing, we do not think this is a 

helpful addition. There are rarely enough untimely claims to significantly reduce 

the residual, and it seems unwise to have open-ended deadlines in circumstances 

when the defendant is paying for finality. 

CLASS DEFINITION AND ASCERTAINABILITY 

We have two concerns with the sketch language proposed here. First, the proposed 

language seems to adopt the much-criticized Carrera standard and impose a new certification 

requirement that class members be identifiable. While the Committee note provides some useful 

explication, the sketch language can be read to impose a more draconian standard that will 

undermine the use of class actions in small value consumer cases. 

Second, ascertainability is not a requirement for certification of a Rule 23(b )(2) class 

action. Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015). As the Third Circuit recently explained, 

the focus of a (b )(2) class is on "the nature of the remedy sought ... a remedy obtained by one 

member will naturally affect the others." Id. at 561. Consequently, "the identities of individual 

class members are less critical in a (b )(2) action than in a (b )(3) action." Id. The Shelton court 

cited to the language of the Advisory Committee Note to Rule 23, which describes illustrative 

examples of Rule 23(b )(2) cases as "various actions in the civil-rights field where a party is 

charged with discriminating unlawfully against a class, usually one whose members are 

incapable of specific enumeration." Id., citing Fed. R. Civ. P. 23 advisory committee's note 

(1966) (emphasis added). The Shelton court only required a class definition that was a "readily 

discernible, clear, and precise statement of the parameters defining the class." Id. at 563. The 

qualifying language in the sketch, "when necessary," does not sufficiently convey that, for an 

entire class of cases, ascertainability is never a requirement 

3 
Advisory Committee on Civil Rules 

Judicial Conference of the United States 

September 4,2015 

ISSUE CLASSES 

Persuasive arguments can be made on both sides of the question of whether a rule change 

is necessary to address issue classes. If a rule is adopted, we would advocate for Alternative 2 to 

ensure that the mechanism remains available for use in Rule 23(b )(2) cases, as well as Rule 

23(b )(3) cases. Injunctive relief cases can involve multiple discrete legal questions that may 

benefit from the availability of the issue certification mechanism to facilitate resolution. 

RULE 68 OFFERS 

Recent and rapid development in the case law, coupled with the pending Supreme Court 

argument in Gomez v. Campbell-Ewald Co., 135 S. Ct. 2311 (2015), counsel against expending 

much time on a potential rule change here. That being said, the first proposed sketch is 

preferable as it is more comprehensive. 

Thank you for the opportunity to provide some views to the Committee in' advance o,f the 

Mini -Conference. 

Yours very truly, 

~~kl.n ---'" ~cutive Director 

4 
TAB 3

TESTIMONY OUTLINE AND COMMENTS OF

TODD B. HILSEE, THE HILSEE GROUP LLC
1

Todd B. Hilsee

Outline of Testimony Before the Advisory Committee on Civil Rules Regarding Proposed 

Changes to Federal Rule of Civil Procedure 23(c)(2)(B) and Accompanying Committee Notes

January 4, 2017, Phoenix, AZ

Conclusion: Rule 23(c)(2)(B) should not be changed to add the sentence specifying “electronic 

means and other appropriate means.” The Committee notes stating that such means “may 

be more reliable” than first-class mail are not accurate, and should not be adopted.

INTRODUCTION

The following outline highlights my testimony. Each of the points below are supported with 

data, exhibits, and sources, all detailed and referenced in my various written comments:

1

a. Troubling Class Action Notice Trends are Impacting Potential Rule 23 Changes, 

Todd B. Hilsee, March 23, 2016, ID: USC-RULES-CV-2016-0004-0032 (posted 

8/12/16).

b. Update: Data Does Not Support Premise for Relaxing the Rule 23(C)(2) Individual 

Notice Requirement, Todd B. Hilsee, May 24, 2016, ID: USC-RULES-CV-2016-

0004-0034 (posted 8/12/16).

c. Comments on Rule 23(c)(2)(B): The Proposed Sentence and Accompanying Notes 

Regarding Electronic Notice Should Not Be Adopted, Todd B. Hilsee, Oct. 31, 

2106, ID: USC-RULES-CV-2016-0004-0043 (posted 11/1/16).

d. Further written comments to be submitted prior to Feb. 15, 2017, regarding:

i. A Nationwide Survey commissioned by The Hilsee Group LLC, finding

first-class mailings more reliable and expected for class action notice than 

electronic means, even among online adults who use email.

ii. Recent Federal Trade Commission “6(b) Orders” to claims administrators 

compelling production of response data to class action notices.

iii. Study underway by independent and renowned national digital media 

expert on overstated electronic advertising reach and abuse in class 

action notice campaigns.

 1 https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=USCRULES-CV-2016-0004. 
2

TESTIMONY OUTLINE

1. Rule 23(c)(2)(B) need not change; it currently requires individual notice and does not 

limit courts as to the method. If the committee note accompanying proposed Rule 

23(c)(2)(B) is correct (“many courts have read the rule to require notice by first class mail 

in every case”), then the only reason for the new sentence in Rule 23(c)(2)(B) (“The 

notice may be by United States mail, electronic means, and other appropriate means”),

is to encourage means other than first-class mail—even when addresses are reasonably 

identifiable. The rule should not steer courts away from postal mail.

2. There is no support for the Committee note that electronic means “are more reliable 

and important to many” relative to first-class mail. To the contrary, available data

(detailed in written comments) shows first-class mail to be more effective than 

electronic means. Properly-produced first-class mail produces more claims than 

electronic means, and claims administrator literature states this. Now, a new 

Nationwide Study (95% confidence interval/1.8% margin of error) shows that most 

online adults—even millennials—find first-class mail more reliable than electronic 

means for class action notice, and overwhelming percentages expect to receive a class 

action notice by first-class mail when their address is identifiable.

3. An email sent to an individual is an individualized communication, and there is no 

controversy about this which needs clarification. The current rule allows notice by

email, as it does other forms of individual notices. Under the current rule, Courts 

approve many forms of notice when a postal mail option is not available. The proposed 

rule and notes would effectively encourage less effective email in lieu of first-class mail.

4. Beyond encouraging bulk-sent email (7-24% opened) in lieu of available physical mail

(some 78% read or scanned), the rule allows internet banner ads to be construed as 

more reliable than individual first-class mailings. Banner ads are not individualized; they 

are fleeting headlines that often appear for only one second. Many are not even 

viewable. Even a banner ad that is actually viewed (15-20 words) is not a “notice.” Only 

people who click—and almost no one does (0.04%)—get Rule 23-compliant notice.

5. False information about the supposed low cost of electronic notice has been 

promulgated by un-trained vendors seeking to win low bids. Internet advertising is rife

for fraud, and the audiences are often overstated. Many “exposures” are fake, or 

created by “bots.” Congress stepped in this summer to request answers from the FTC 

on rampant digital advertising audience fraud. In truth, digital ads require enormous 

sums to capture attention and garner response—monies that a reverse-auction notice 

planning system will not allow.

6. Proponents argue that the proposed rule-change simply reflects modern technology. 

But use of the internet does not mean we pay attention to or click on the ads. And 

unlike commercial marketing, where general awareness of a brand provides value, un-
3

clicked banners do not communicate legal rights. Our use of email does not mean we 

open unsolicited emails from unknown bulk senders. Many go to trash or SPAM without

our knowing it. When electronic means are used for notice, Courts are routinely not 

informed where the banners appear, nor given proof that they actually have appeared, 

nor told how few people click banners or open emails—even though easily-known to 

the administrator. This is a danger to the transparent fairness of class actions.

7. This rule change will foster less expensive notice, but it will not foster more effective 

notice. There is no “high cost notice” problem that needs rule-making attention. Weak

notice is being approved and claims are plummeting. Electronic notice in lieu of 

available mailings are already causing low response, and class action credibility is at risk.

8. Instead of this rule change, I encourage the Committee to address the systemic 

problems driving weak notice. Even in safety-related defect cases, the proposed rule 

language will result in mailings rarely being utilized, because it costs more, because it 

results in too many claims for a settling defendants’ liking, because dis-incentivized class 

counsel will go along, because untrained vendors sign off on weak plans just to be 

chosen, and because a culture of “blackballing” limits outside critique. Courts are left in 

the dark and wondering why so many settlements yield so few claims. Sadly, courts are 

often erroneously told: “We tried our best but the Class chose not to respond.”

9. The class action is a valuable social justice tool that is too important to lose. The opt-out 

class action is “backwards intuitive” for class members, requiring careful 

communication. The average person cannot imagine that not clicking an internet 

banner ad, nor opening an email from a unknown sender, can possibly affect them. Yet 

in opt-out class actions, inaction equates to consent—consent to being bound to an 

outcome in a faraway courtroom; consent to losing rights to pursue a claim or receive 

compensation for a wrong. When inaction is by choice, pursuant to a fair opportunity, it 

is appropriate to infer informed consent. But when inaction results from deliberately

weakened notice—falsely held out to courts as being the “best”—the opt-out class 

action will be a sham. Individual notice is a bulwark that should not be undermined.

10. Beyond all else, the Advisory Committee should hold off on any change without knowing 

the results of recent actions by the Federal Trade Commission. On Nov. 14, 2016, in the 

absence of publicly available claims data informing the ongoing conversation about low 

class action claims rates, the FTC issued Orders under Section 6(b) of the FTC Act to 

eight large claims administrators compelling the production of data on the effectiveness 

of various types of class action notice methods. The administrators’ responses are not 

due until January 9, 2017—if such responses are not delayed by class action settling 

parties’ contractual arguments of confidentiality that may have to be resolved in Court. 

The dates by which any FTC analysis of collected data would be completed, and when 

any report would be made public, are not known.
1 | Page

October 31, 2016

Committee on Rules of Practice and Procedure

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle N.E., Suite 7-240

Washington, D.C. 20544

Comments on Rule 23(c)(2)(B): 

The proposed sentence and accompanying notes

regarding electronic notice should not be adopted.

Dear Members of the Committee:

Since 1992, many courts have recognized me as class action notice expert. I have

worked pro bono with the Federal Judicial Center (FJC) to develop practice standards, including 

specifically at the request of the Advisory Committee on Civil Rules.

1 I am an independent 

notice expert, not a notice vendor or claims administrator involved in today’s bidding wars. I 

have continually performed expert analyses to help courts ensure that notice efforts are the 

“best practicable,” and meet the “desire to inform” standard of Due Process. With my media 

training and experience in major class action cases, I advise judges and the FJC on the changing 

media landscape today. My c.v. is attached as Attachment 1. 

I support the edits to Fed. R. Civ. P. 23 except one new sentence in Rule 23(c)(2)(B): “The 

notice may be by United States mail, electronic means or other appropriate means.” This only 

encourages less effective means in lieu of postal mail. I support the accompanying notes 

except those that encourage electronic notice over postal mail.

2 Email is less expensive than 

postal mail, but is not, as the notes state, “more reliable.” There is no data to support this more 

reliable notion. More reliable implies more likely to be delivered, opened, read, or responded 

to, relative to postal mail, none of which would be accurate. 

 

1 I have collaborated pro bono with the Federal Judicial Center on Model Plain Language Notices (2002), Judges’ 

Notice and Claims Process Checklist and Plain Language Guide (2010), and notice content in Managing Class 

Actions: A Pocket Guide for Judges (2010). My case work (notifying Holocaust Survivors, lead-poisoned children, 

abused aboriginal children, etc.), publications including law review articles, speaking including at law schools, and 

judicial recognition, can be found at www.hilseegroup.org. 

2 No change to the rule is required in order to allow notice by email when postal mail is not available. There is 

no controversy over whether an email to a person who uses email constitutes an individualized communication, 

and, when only email addresses are known, or where a defendant regularly communicates with a class by email, 

such means are already used. Note: my two letters to the Rule 23 sub-Committee, with citations to supporting 

data, are attached as Attachments 2 and 3. 
2 | Page

In fact, data shows the opposite to be true: responses to class action notices sent by 

postal mail are typically higher than by other means—especially when including a claim form 

with pre-paid return postage.

3 Thus it is counter to class members’ interests to encourage 

courts to avoid postal mail. Data shows that only 7-24% of bulk emails are opened by 

recipients.

4 Conversely, U.S. Postal Service data shows that 78% of households either read or 

scan even the advertising mail they receive today;

5 of course, notices are not advertisements, 

and FJC sample envelope designs ensure that notices are recognized as official and important.”

Beyond the proposed rule change and related notes encouraging email over mail, the 

phrase “electronic means” allows “internet banners”—fleeting 10-20 word headlines 

purporting to target individuals—to suffice in lieu of a Rule 23-compliant notice mailed to a 

person. Most banner ads are not even “viewable” as that term is defined, many are actively 

blocked by users, and studies show much of banner audiences are fake, or are viewed by

“robots” not humans.

6 Digital audience fraud is of such concern that two U.S. Senators recently 

wrote to the Federal Trade Commission about it (see Attachment 4).7 Regardless of fraud, 

most of us go about our internet work trying to avoid the banners which few people pay 

attention to or trust, let alone click. Statistics show that few banner impressions are clicked by 

humans (0.04% on average), such that when used in class actions few class members are

exposed to an actual notice. The attachments hereto detail these facts with data.

Practically speaking, if this electronic notice rule language is adopted, parties will 

propose the least expensive means of notice the rule specifies—even though less effective—

and not just in “small” cases when postal mail is uneconomical. Because of systemic 

 

3 See Attachment 3, at p.3 and Exh.2., citing data and chart provided to Federal Trade Commission by Analytics, 

LLC showing typical response to mailed notice and claim form outstrips all other means of notice.

4 See Attachment 3 at p.2-3 and Exh. 1., citing Direct Marketing Association and MailChimp email readership 

studies.

5 See 2014 Household Diary Study, United States Postal Service, 

http://www.prc.gov/docs/93/93171/2014%20USPS%20HDS%20Annual%20Report_Final_V3.pdf, last visited Oct. 

27, 2016.

6 See Attachment 3 at p.2, (citing Media Rating Council definition of a “viewable” banner impression: “1/2 of the 

pixels are visible on the screen for a minimum of 1 second”); See also Exh. 4 therein, citing Google data showing 

56% of “impressions” are not viewable; See also U.S. ad block usage expected to more than double by 2020, 

Business Insider, May 17, 2016, (citing expectation that 37% of online users will block banner ads by 2020), 

http://www.businessinsider.com/us-ad-block-usage-expected-to-more-than-double-by-2020-2016-5, last visited

Oct. 29, 2016. See also Attachment 3 at p.3 and Exh. 5, citing many reports of a $7+ billion digital ad fraud finding 

significant percentages of purported audiences are outright fake or are fabricated by “robots,” i.e., computerautomated programs referred to as “botnets” or “bots,” which mimic human behavior to siphon ad dollars.

7 Letter from Sens. Schumer and Warner to FTC, July 11, 2016, citing Adrian Neal, Quantifying Online Advertising 

Fraud: Ad-Click Bots vs. Humans, Jan. 2015, http://oxford-biochron.com/downloads/OxfordBioChron_QuantifyingOnline-Advertising-Fraud_Report.pdf: “According to one study, between 88 and 98 percent of all ad-clicks on major 

advertising platforms such as Google, Yahoo, Linkedln, and Facebook in a given seven-day period were not 

executed by human beings.” 
3 | Page

disincentives (see Attachment 2), the revised rule will legitimize the avoidance of readily 

available mailed notice as a condition of any claims-made settlement—even where public safety 

risks are involved. For example, in Pollard v. Remington, a case involving 7.5 million allegedly 

defective rifles, a settlement notice plan relied heavily on internet banner impressions in lieu of 

mailed notice to warranty card and other databases, resulting in only 2,327 claims (0.031%) for 

a trigger repair; meaning 99.97% of guns the lawsuit says can fire unintendedly causing injuries 

or deaths would remain in use, with many owners unaware.

8 Lawyers agree to such low-cost

banner-reliant plans, lest a defendant settle with other law firms that will agree. Then, when 

response is low, the lawyers argue that their fees should be based on the “potential” 

settlement value—irrespective of how little is actually claimed by the class due to the failed 

notice. Parties and courts have been misled by unqualified vendors who hype banner ads while 

budgeting much less than would truly be required to reach the audiences they purport to reach, 

while knowing that fewer claims will result. Unscrupulous vendors do this to undercut

experienced professionals, and they expect no serious challenges.9

 This rule change may seem to be a simple “modernization.” But 41% of adults age 65 

and older do not use the internet, nor do 13% of adults overall.

10 A notice campaign that leaves 

between one third to one half of senior citizens uninformed by design will be vulnerable to 

objection and collateral attack. For the rest of us, communicating with friends, family, and 

business associates by email does not mean we open unsolicited emails from bulk senders. 

Indeed, data shows we typically do not. Using the internet does not mean we see or click on 

the “needles” that are the banners within the colossal “haystack” that is the internet. In fact, 

studies show digital notice plans grossly underperform relative to what courts are promised.11

 

8

 “The Court cannot conceive that an owner of an allegedly defective firearm would not seek the remedy being 

provided pursuant to the Settlement Agreement. Thus, this low response rate demonstrates the notice process has 

not been effective.” Order Deferring Consideration of Settlement ...Cancelling Final Approval Hearing... Pollard v. 

Remington, Case No. 13-00086, W.D. Mo., ECF No. 112, Dec. 8, 2015. See also Attachment 5, Scott Cohn, CNBC, 

Expert Blasts Proposed Remington Rifle Settlement, July 31, 2016.

9 See Attachment 5, Daniel Fisher, Banner Ads Are a Joke in the Real World, But Not in Class-Action Land, Sept. 15, 

2016: “‘[W]hoever can come up with the cheapest bid and put an affidavit in that it meets standards of due 

process, that firm will be hired,’ said Katherine Kinsella, the recently retired founder of Kinsella Media, which 

specializes in legal notification. ‘It is a reverse auction.’ ... ‘You can’t critique anybody else’s work publicly,’ said 

Kinsella, who in retirement feels more free to speak. ‘You’re blackballed.’”

10 See Pew Research Center, Sept. 7, 2016. http://www.pewresearch.org/fact-tank/2016/09/07/some-americansdont-use-the-internet-who-are-they/, last visited Oct. 29, 2016.

11 See Shannon Wheatman, Ph.D. and Alicia Gehring, Accurately Reporting Notice Results to Courts, Dec. 2015, 

http://rustconsulting.com/Insights/Insights-All. “[U]nqualified notice providers are making serious errors in their 

affidavits and declarations.” (citing notification claimed to reach 70% of class, actually reached 16%). See also

Jeanne C. Finegan, Law360, Think All Internet Impressions Are The Same? Think Again, March 16, 2016, 

https://www.hefflerclaims.com/wp-content/uploads/2016/03/Think-All-Internet-Impressions-Are-The-SameThink-Again.pdf (citing analysis of online reach reported to court as 60% that actually reached 9% of the class).

ATTACHMENT 1 
TODD B. HILSEE C.V

Summary

Todd Bruce Hilsee was the first person judicially recognized as an 

expert on class action notice in published decisions in the United States and 

in Canada, See In re Domestic Air Transp. Litig., 141 F.R.D. 534, (N.D. Ga., 

1992) and Wilson v. Servier Canada, Inc., 49 C.P.C. (4th) 233, [2000] O.J. No. 

3392), among many other judicial citations. Mr. Hilsee’s ground-breaking 

work to establish today’s notice standards included Holocaust victims’ claims 

programs as well as international securities, asbestos, human rights, and 

hurricane victims’ matters. Hilsee has been cited favorably more than any 

other notice expert, and has testified in court more often and more 

successfully than any other person in the field. Hilsee brought to courts the 

use of media audience data to quantify the “net reach” of class members, and 

brought “noticeable” notice designs as well. 

Mr. Hilsee was the only notice expert invited to testify before the 

Advisory Committee on Civil Rules of the Judicial Conference of the United 

States regarding the 2003 plain language amendment to Federal Rule of Civil 

Procedure 23. He subsequently collaborated to write and design the 

illustrative “model” plain language notices for the Federal Judicial Center

(FJC), including detailed notices, summary notices and envelopes, now at 

www.fjc.gov. He collaborated to create the FJC’s “Notice and Claims Process 

Checklist and Guide” and contributed with attribution to the FJC’s “Managing 

Class Action Litigation: A Pocket Guide for Judges.”

Mr. Hilsee has authored and co-authored numerous articles on notice 

and due process, including law review and journal articles such as “Do You 

Really Want Me to Know My Rights? The Ethics Behind Due Process in Class 

Action Notice Is More Than Just Plain Language: A Desire to Actually Inform,” 18 

Georgetown Journal of Legal Ethics 1359 (Fall 2005); and “Hurricanes, Mobility 

and Due Process. The ‘Desire to Inform’ Requirement for Effective Class Notice is 

Highlighted by Katrina,” 80 Tulane Law Review 1771 (June 2006). Hilsee has 

lectured and/or been featured in educational DVD’s and materials used 

during many judicial and bar association panels and symposiums, and at law 

schools including Harvard, Columbia, Temple, Cleveland-Marshall, and 

Tulane. He has lectured at the FJC’s “District Judge Workshops,” and served

as an editor for the ABA’s International Litigation committee.

As a communications professional, he served with Foote, Cone & 

Belding, the largest U.S. domestic advertising firm, where he was awarded the 

American Marketing Association’s award for effectiveness. He received his B.S. 

in Marketing from the Pennsylvania State University. Todd can be reached at 

thilsee@hilseegroup.com.
2

Judicial Recognition

Judge Lee Rosenthal, Advisory Committee on Civil Rules of the Judicial 

Conference of the United States (Jan. 22, 2002), addressing Mr. Hilsee in a 

public hearing on proposed changes to Federal Rule of Civil Procedure 23:

I want to tell you how much we collectively appreciate your 

working with the Federal Judicial Center to improve the quality of 

the model notices that they’re developing. That’s a tremendous 

contribution and we appreciate that very much...You raised three 

points that are criteria for good noticing, and I was interested in 

your thoughts on how the rule itself that we’ve proposed could 

better support the creation of those or the insistence on those 

kinds of notices . . .

Judge Barbara J. Rothstein, Director, Federal Judicial Center,

(2010) Managing Class Action Litigation: A Pocket Guide for Judges. 

(Preface):

This pocket guide is designed to help federal judges manage the 

increased number of class action cases filed in or removed to 

federal courts as a result of the Class Action Fairness Act of 2005. 

. . This third edition includes an expanded treatment of the notice 

and claims processes. . . Todd Hilsee, a class action notices expert 

with The Hilsee Group, supplied pro bono assistance in improving 

the sections on notices and on claims processes.

Judge Marvin Shoob, In re Domestic Air Transp. Antitrust Litig., 141 

F.R.D. 534, 548 (N.D. Ga. 1992):

The Court finds Mr. Hilsee’s testimony to be credible. Mr. Hilsee’s 

experience is in the advertising industry. It is his job to determine 

the best way to reach the most people. Mr. Hilsee answered all 

questions in a forthright and clear manner. Mr. Hilsee performed 

additional research prior to the evidentiary hearing in response to 

certain questions that were put to him by defendants at his 

deposition . . . The Court believes that Mr. Hilsee further enhanced 

his credibility when he deferred responding to the defendant’s 

deposition questions at a time when he did not have the 

responsive data available and instead utilized the research 

facilities normally used in his industry to provide the requested 

information.
3

Mr. Justice Peter Cumming, Wilson v. Servier Canada, Inc.,, 49 

C.P.C. (4th) 233, [2000] O.J. No. 3392:

[A] class-notification expert, Mr. Todd Hilsee, to provide advice and

to design an appropriate class action notice plan for this

proceeding. Mr. Hilsee’s credentials and expertise are impressive.

The defendants accepted him as an expert witness. Mr. Hilsee

provided evidence through an extensive report by way of affidavit,

upon which he had been cross-examined. His report meets the

criteria for admissibility as expert evidence. R. v. Lavallee, [1990]

1 S.C.R. 852.

Judge Elaine E. Bucklo, Carnegie v. Household International, (Aug. 28, 

2006) No. 98 C 2178 (N.D. Ill.):

Class members received notice of the proposed settlement 

pursuant to an extensive notice program designed and 

implemented by Todd B. Hilsee... Mr. Hilsee has worked with the 

Federal Judicial Center to improve the quality of class notice. His 

work has been praised by numerous federal and state judges.

Judge Eldon E. Fallon, Turner v. Murphy, USA, Inc., 2007 WL 283431, at 

*6 (E.D. La.):

Mr. Hilsee is a highly regarded expert in class action notice who 

has extensive experience designing and executing notice programs 

that have been approved by courts across the country. 

Furthermore, he has handled notice plans in class action cases 

affected by Hurricanes Katrina, Rita, and Wilma, see In re High 

Sulfur Content Gasoline Products Liability Litigation, MDL 1632, p. 

15-16 (E.D. La. Sept. 6, 2006) (Findings of Fact and Conclusions of

Law in Support of Final Approval of Class Settlement), and has

recently published an article on this very subject, see Todd B.

Hilsee, Gina M. Intrepido, & Shannon R. Wheatman, Hurricanes,

Mobility, and Due Process: The “Desire to Inform” Requirement for

Effective Class Notice is Highlighted by Katrina, 80 Tul. L.Rev.

1771 (2006) (detailing obstacles and solutions to providing

effective notice after Hurricane Katrina).

Judge Kirk D. Johnson, Zarebski v. Hartford Insurance Company of the 

Midwest, (February 13, 2007) No. CV-2006-409-3 (Cir. Ct. Ark.):

Having admitted and reviewed the Affidavit of Todd Hilsee, and 

received testimony from Mr. Hilsee at the Settlement Approval 

Hearing concerning the success of the notice campaign, including 

the fact that written notice reached 91.8% of the potential Class 
4

Members, the Court finds that it is unnecessary to afford a new 

opportunity to request exclusion to individual Class Members who 

had an earlier opportunity to request exclusion but failed to do so. 

The Court also concludes that the extremely small number of 

objections to the Stipulation and Proposed Settlement embodied 

therein supports the Court’s decision to not offer a second 

exclusion window.

Judge William A. Mayhew, Nature Guard Cement Roofing Shingles 

Cases., (June 29, 2006) J.C.C.P. No. 4215 (Cal. Super. Ct.):

The method for dissemination of notice proposed by class counsel 

and described by the Declaration of Todd Hilsee ... constitute the 

fairest and best notice practicable under the circumstances of this 

case, comply with the 

Judge Sarah S. Vance, In re Educ. Testing Serv. PLT 7-12 Test Scoring 

Litig., 447 F.Supp.2d 612, 617 (E.D. La. 2006):

At the fairness hearing, the Court received testimony from the 

Notice Administrator, Todd Hilsee, who described the forms and 

procedure used to notify class members of the proposed settlement 

and their rights with respect to it . . . The Court is satisfied that 

notice to the class fully complied with the requirements of Rule 23.

Judge Douglas L. Combs, Morris v. Liberty Mutual Fire Ins. Co., 

(Feb. 22, 2005) No. CJ-03-714 (D. Okla.):

I want the record also to demonstrate that with regard to notice, 

although my experience – this Court’s experience in class actions 

is much less than the experience of not only counsel for the 

plaintiffs, counsel for the defendant, but also the expert witness, 

Mr. Hilsee, I am very impressed that the notice was able to reach –

be delivered to 97 1⁄2 percent members of the class. That, to me, is 

admirable. And I’m also – at the time that this was initially 

entered, I was concerned about the ability of notice to be 

understood by a common, nonlawyer person, when we talk about 

legalese in a court setting. In this particular notice, not only the 

summary notice but even the long form of the notice were easily 

understandable, for somebody who could read the English 

language, to tell them whether or not they had the opportunity to 

file a claim.
5

Judge John Speroni, Avery v. State Farm, (Feb. 25, 1998) No. 97-L-114 (Ill. 

Cir. Ct. Williamson Co.):

[T]his Court having carefully considered all of the submissions, 

and reviewed their basis, finds Mr. Hilsee’s testimony to be 

credible. Mr. Hilsee carefully and conservatively testified to the 

reach of the Plaintiffs’ proposed Notice Plan, supporting the reach 

numbers with verifiable data on publication readership, 

demographics and the effect that overlap of published notice 

would have on the reach figure . . . This Court’s opinion as to Mr. 

Hilsee’s credibility, and the scientific basis of his opinions is 

bolstered by the findings of other judges that Mr. Hilsee’s 

testimony is credible.

Judge John D. Allen, Desportes v. American General Assurance Co., (April 

24, 2007) No. SU-04-CV-3637 (Ga. Super. Ct.):

[T]he Parties submitted the Affidavit of Todd Hilsee, the Courtappointed Notice Administrator and one of the preeminent class 

action notice experts in North America. After completing the 

necessary rigorous analysis, including careful consideration of 

Mr. Hilsee’s Affidavit, the Court finds that [the notice] . . .fully 

satisfied the requirements of the Georgia Rules of Civil Procedure 

(including Ga. Code Ann. § 9-11-23(c)(2) and (e)), the Georgia and 

United States Constitutions (including the Due Process Clause), 

the Rules of the Court, and any other applicable law.

Judge Michael Maloan, Cox v. Shell Oil, 1995 WL 775363, at *6, (Tenn. Ch. 

Ct.):

Cox Class Counsel and the notice providers worked with Todd B. 

Hilsee, an experienced class action notice consultant, to design a 

class notice program of unprecedented reach, scope, and 

effectiveness. Mr. Hilsee was accepted by the Court as a qualified 

class notice expert . . . He testified at the Fairness Hearing, and 

his affidavit was also considered by the Court, as to the operation 

and outcome of this program.

Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (Oct. 30, 

2001) No. MID-L-8839-00-MT (N.J. Super. Ct. Middlesex Co.):

The parties have crafted a notice program which satisfies due 

process requirements without reliance on an unreasonably 

burdensome direct notification process. The parties have retained 

Todd Hilsee... who has extensive experience designing similar 

notice programs...The form of the notice is reasonably calculated 
6

to apprise class members of their rights. The notice program is 

specifically designed to reach a substantial percentage of the 

putative settlement class members.

Currie v. McDonald's Rests. of Canada Ltd., 2005 CanLll 3360 (ON C.A.):

The respondents rely upon the evidence of Todd Hilsee, an 

individual with experience in developing notice programs for class 

actions. In Hilsee’s opinion, the notice to Canadian members of 

the plaintiff class in Boland was inadequate . . . I am satisfied that 

it would be substantially unjust to find that the Canadian 

members of the putative class in Boland had received adequate 

notice of the proceedings and of their right to opt out . . . I am not 

persuaded that we should interfere with the motion judge’s 

findings . . . The right to opt out must be made clear and plain to 

the non-resident class members and I see no basis upon which to 

disagree with the motion judge’s assessment of the notice. Nor 

would I interfere with the motion judge’s finding that the mode of 

the notice was inadequate.

Judge Jerome E. Lebarre, Harp v. Qwest Commc’ns (June 21, 2002) No. 

0110-10986 (Ore. Cir. Ct. Multnomah Co.):

So, this agreement is not calculated to communicate to plaintiffs 

any offer. And in this regard I accept the expert testimony 

conclusions of Mr. Todd Hilsee. Plaintiffs submitted an expert 

affidavit of Mr. Hilsee dated May 23 of this year, and Mr. Hilsee 

opines that the User Guide was deceptive and that there were 

many alternatives available to clearly communicate these 

matters....

Judge Dewey C. Whitenton, Ervin v. Movie Gallery, Inc., (Nov. 22, 2002) 

No. 13007 (Tenn. Ch.):

Based on the evidence submitted and based on the opinions of 

Todd Hilsee, a well-recognized expert on the distribution of class 

notices . . . MGA and class counsel have taken substantial and 

extraordinary efforts to ensure that as many class members as 

practicable received notice about the settlement. As demonstrated 

by the affidavit of Todd Hilsee, the effectiveness of the notice 

campaign and the very high level of penetration to the settlement 

class were truly remarkable . . . The notice campaign was highly 

successful and effective, and it more than satisfied the due 

process and state law requirements for class notice.
7

Judge Joe E. Griffin, Beasley v. Hartford Insurance Company of the 

Midwest, (June 13, 2006) No. CV-2005-58-1 (Cir. Ct. Ark.):

Additionally, the Court was provided with expert testimony from 

Todd Hilsee at the Settlement Approval Hearing concerning the 

adequacy of the notice program. Based on the Court’s review of 

the evidence admitted and argument of counsel, the Court finds 

and concludes that the Individual Notice and the Publication 

Notice, as disseminated to members of the Settlement Class in 

accordance with provisions of the Preliminarily Approval Order, 

was the best notice practicable under the circumstances . . . and 

the requirements of due process under the Arkansas and United 

States Constitutions.

Judge Fred Biery, McManus v. Fleetwood Enter., Inc., (Sept. 30, 

2003) No. SA-99-CA-464-F (W.D. Tex.):

Based upon the uncontroverted showing Class Counsel have 

submitted to the Court, the Court finds that the settling parties 

undertook a thorough notice campaign designed by Todd Hilsee . . 

. a nationally-recognized expert in this specialized field . . . The 

Court finds and concludes that the Notice Program as designed 

and implemented provided the best practicable notice to the 

members of the Class, and satisfied the requirements of due 

process.

Judge Richard G. Stearns, In re Lupron Marketing and Sales Practice 

Litig., 228 F.R.D. 75, 96 (D. Mass. 2005):

With respect to the effectiveness of notice, in the absence of any 

evidence to the contrary, I accept the testimony of Todd Hilsee that 

the plan he designed achieved its objective of exposing 80 percent 

of the members of the consumer class. . .

Mr. Justice Maurice Cullity, Parsons/Currie v. McDonald’s Rests. of Can.,

(Jan. 13, 2004) 2004 Carswell Ont. 76, 45 C.P.C. (5th) 304, [2004] O.J. No.83:

I found Mr. Hilsee’s criticisms of the notice plan in Boland to be far 

more convincing than Mr. Pines’ attempts during crossexamination and in his affidavit to justify his failure to conduct a 

reach and frequency analysis of McDonald’s Canadian customers. 

I find it impossible to avoid a conclusion that, to the extent that the 

notice plan he provided related to Canadian customers, it had not 

received more than a perfunctory attention from him. The fact that 

the information provided to the court was inaccurate and 

misleading and that no attempt was made to advise the court after 
8

the circulation error had been discovered might possibly be 

disregarded if the dissemination of the notice fell within an 

acceptable range of reasonableness. On the basis of Mr. Hilsee’s 

evidence, as well as the standards applied in class proceedings in 

this court, I am not able to accept that it did.

Judge Catherine C. Blake, In re Royal Ahold Securities & “ERISA” Litig.,

(June 16, 2006) MDL-1539 (D. Md.):

In that regard, I would also comment on the notice. The form and 

scope of the notice in this case, and I’m repeating a little bit what 

already appeared to me to be evident at the preliminary stage, but 

the form and scope of the notice has been again remarkable . . . 

The use of sort of plain language, the targeting of publications and 

media, the website with the translation into multiple languages, 

the mailings that have been done, I think you all are to be 

congratulated, and Mr. Hilsee and Claims Administrator as well.

Judge Paul H. Alvarado, Microsoft I-V Cases, (July 6, 2004) J.C.C.P. No. 

4106 (Cal. Super. Ct.):

[T]he Court finds the notice program of the proposed Settlement

was extensive and appropriate. It complied with all requirements

of California law and due process. Designed by an expert in the

field of class notice, Todd B. Hilsee, the notice plan alone was

expected to reach at least 80% of the estimated 14.7 million class

members. (Hilsee Decl. Ex. 3, ¶28). The Settlement notice plan

was ultimately more successful than anticipated and it now

appears that over 80% of the class was notified of the Settlement.

Judge Denise L. Cote, In re SCOR Holding (Switzerland) AG Litig.,

(October 24, 2007) No. 04-CV-7897 (S.D. NY):

I should say I have not had a case before, that I remember, at 

least, in which an issue of the extent to which notice would 

effectively be made outside this country, and that seems to be the 

principal point of the affidavit of Mr. Hilsee, which is the first 

exhibit to the October 12 submission, and I’ve reviewed it. It 

seems as if it proposes something reasonable in terms of a plan of 

action to obtain notice that would be consistent with the 

constitutional requirements of due process so a judgment could be 

effectively entered in this litigation, including a bar order.
9

Judge Marina Corodemus, Talalai v. Cooper Tire & Rubber Co., (Sept. 13, 

2002) No. L-008830.00 (N.J. Super. Ct. Middlesex Co.):

Here, the comprehensive bilingual, English and Spanish, courtapproved Notice Plan provided by the terms of the settlement 

meets due process requirements. The Notice Plan used a variety 

of methods to reach potential class members. For example, short 

form notices for print media were place . . .throughout the United 

States and in major national consumer publications which include 

the most widely read publications among Cooper Tire owner 

demographic groups . . . Mr. Hilsee designed the notification plan 

for the proposed settlement in accordance with this court’s Nov. 1, 

2001 Order. Mr. Hilsee is . . . well versed in implementing and 

analyzing the effectiveness of settlement notice plans.

Judge Lewis A. Kaplan, In re Parmalat Securities Litig., (March 1, 2007) 

MDL No. 1653-LAK (S.D. N.Y.):

The court approves, as to form and content, the Notice and the 

Publication Notice, attached hereto as Exhibits 1 and 2, 

respectively, and finds that the mailing and distribution of the 

Notice and the publication of the Publication Notice in the manner 

and the form set forth in Paragraph 6 of this Order and in the 

Affidavit of Todd B. Hilsee meet the requirements of Rule 23 of the 

Federal Rules of Civil Procedure, the Securities Exchange Act of 

1934, as emended by Section 21D(a)(7) of the Private Securities 

Litigation Reform Act of 1995, 15 U.S.C. § 78u-4(a)(7), and due 

process, and is the best notice practicable under the circumstances 

and shall constitute due and sufficient notice to all persons and 

entities entitled thereto.

Judge Richard J. Shroeder, St. John v. Am. Home Prods. Corp., (Aug. 2, 

1999) No. 97-2-06368-4 (Wash. Super. Ct. Spokane Co.):

[T]he Court considered the oral argument of counsel together with 

the documents filed herein, including the Affidavit of Todd B. 

Hilsee on Notice Plan...The Court finds that plaintiffs’ proposed 

Notice Plan is appropriate and is the best notice practicable under 

the circumstances by which to apprise absent class members of 

the pendency of the above-captioned Class Action and their rights 

respecting that action.
10

Judge Carter Holly, Richison v. Am. Cemwood Corp., (Nov. 18, 2003) No. 

005532 (Cal. Super. Ct. San Joaquin Co.):

The parties undertook an extensive notice campaign designed by a 

nationally recognized class action notice expert. See generally, 

Affidavit of Todd B. Hilsee on Completion of Additional Settlement 

Notice Plan.

Judge Kirk D. Johnson, Sweeten v. American Empire Insurance Co.,

(August 20, 2007) Cir. Ct. Ark., No. CV-2007-154-3: 

Let [Mr. Hilsee] be so admitted for the purposes of this hearing, 

having been previously admitted by the Court and the Court 

having found his qualifications exemplary in this field.

Judge Robert Wyatt, Gunderson v. F.A. Richard & Associates, Inc., (July 

19 2007) Cir. Ct. 14th Jud. D. Ct. La., No. 2004-2417-D:

The Court will so accept [Mr. Hilsee as an expert] on issues of the 

content and dissemination of legal notices, including Class Action 

Notices and notice campaigns.

Judge John R. Padova, Rosenberg v. Academy Collection Service, Inc. 

(Dec. 19, 2005) No. 04-CV-5585 (E.D. Pa.):

[U]pon consideration of the Memorandum of Law in Support of 

Plaintiff’s Proposed Class Questionnaire and Certification of Todd 

Hilsee, it is hereby ORDERED that Plaintiff’s form of class letter 

and questionnaire in the form appended hereto is APPROVED. 

F.R.Civ.P. 23(c).

Judge Bernard Zimmerman, Ting v. AT&T, 182 F.Supp.2d 902, 912-913 

(N.D. Cal. 2002) (Hilsee had testified on the importance of wording and notice 

design features):

The phrase ‘Important Information’ is increasingly associated with 

junk mail or solicitations . . . From the perspective of affecting a 

person’s legal rights, the most effective communication is generally 

one that is direct and specific.

Judge David De Alba, Ford Explorer Cases, (Aug. 19, 2005) J.C.C.P. 

Nos. 4226 & 4270 (Cal. Super. Ct., Sacramento Co.):

It is ordered that the Notice of Class Action is approved. It is 

further ordered that the method of notification proposed by Todd 

B. Hilsee is approved.
11

Judge Louis J. Farina, Soders v. General Motors Corp. (Oct. 31, 

2003) No. CI-00-04255 (Pa. C.P. Lancaster Co.):

In this instance, Plaintiff has solicited the opinion of a notice expert 

who has provided the Court with extensive information explaining 

and supporting the Plaintiff’s notice plan...After balancing the 

factors laid out in Rule 1712(a), I find that Plaintiff’s publication 

method is the method most reasonably calculated to inform the 

class members of the pending action.

Judge Eldon E. Fallon, Turner v. Murphy, USA, Inc., 2007 WL 283431, at 

*5 (E.D. La.):

Most of the putative class members were displaced following 

hurricane Katrina . . . With this challenge in mind, the parties 

prepared a notice plan designed to reach the class members 

wherever they might reside. The parties retained Todd Hilsee . . .

to ensure that adequate notice was given to class members in light 

of the unique challenges presented in this case.

Judge Ronald B. Leighton, Grays Harbor Adventist Christian School v. 

Carrier Corporation, (May 29, 2007) No. 05-05437 (W.D. Wash):

The Court has considered this motion, the Affidavit of Todd B. 

Hilsee on Class Certification Notice Plan and the exhibits attached 

thereto, and the files and records herein. Based on the foregoing, 

the Court finds Plaintiffs’ Motion for Approval of Proposed Form of 

Notice and Notice Plan is appropriate and should be granted.

Judge Richard J. Holwell, In re Vivendi Universal, S.A. Securities 

Litig., 2007 WL 1490466, at *34 (S.D.N.Y.):

In response to defendants’ manageability concerns, plaintiffs have 

filed a comprehensive affidavit outlining the effectiveness of its 

proposed method of providing notice in foreign countries. (See 

Affidavit of Todd B. Hilsee on Ability to Provide Multi-National 

Notice to Class Members, Dec. 19, 2005 (“Hilsee Aff.”) ¶ 7.) 

According to this . . . the Court is satisfied that plaintiffs intend to 

provide individual notice to those class members whose names 

and addresses are ascertainable, and that plaintiffs’ proposed 

form of publication notice, while complex, will prove both 

manageable and the best means practicable of providing notice.
12

Judge Catherine C. Blake, In re Royal Ahold Securities & “ERISA” Litig.,

2006 WL 132080, at *4 (D. Md.):

The Court further APPROVES the proposed Notice Plan, as set forth 

in the Affidavit of Todd B. Hilsee On International Settlement 

Notice Plan, dated December 19, 2005 (Docket No. 684). The Court

finds that the form of Notice, the form of Summary Notice, and the 

Notice Plan satisfy the requirements of Fed.R.Civ.P. 23, due 

process, constitute the best notice practicable under the 

circumstances, and shall constitute due and sufficient notice to all 

members of the Class.

Judge John D. Allen, Carter v. North Central Life Ins. Co., (April 24, 2007)

No. SU-2006-CV-3764-6 (Ga. Super. Ct.):

[T]he Parties submitted the Affidavit of Todd Hilsee, the Courtappointed Notice Administrator and one of the pre-eminent class 

action notice experts in North America. After completing the 

necessary rigorous analysis, including careful consideration of 

Mr. Hilsee’s Affidavit, the Court finds that . . . The Notices 

prepared in this matter were couched in plain, easily understood 

language and were written and designed to the highest 

communication standards. The Notice Plan effectively reached a 

substantial percentage of Class Members and delivered 

noticeable Notices designed to capture Class Members’ attention;

Judge Louis J. Farina, Soders v. General Motors Corp., (Oct. 31, 

2003) No. CI-00-04255 (Pa. C.P. Lancaster Co.):

Plaintiff provided extensive information regarding the reach of their 

proposed plan. Their notice expert, Todd Hilsee, opined that their 

plan will reach 84.8% of the class members. Defendant provided 

the Court with no information regarding the potential reach of their 

proposed plan . . . There is no doubt that some class members will 

remain unaware of the litigation, however, on balance, the 

Plaintiff’s plan is likely to reach as many class members as the 

Defendant’s plan at less than half the cost. As such, I approve the 

Plaintiff’s publication based plan.

Judge Paul H. Alvarado, Microsoft I-V Cases, (July 6, 2004) J.C.C.P. No. 

4106 (Cal. Super. Ct.):

The notification plans concerning the pendency of this class action 

were devised by a recognized class notice expert, Todd B. Hilsee. 

Mr. Hilsee devised two separate class certification notice plans 
13

that were estimated to have reached approximately 80% of 

California PC owners on each occasion.

Judge Robert E. Payne, Fisher v. Virginia Electric & Power Co., 

(Feb. 12, 2004) No. 3:02-CV-431 (E.D. Va.):

The expert, Todd B. Hilsee, is found to be reliable and credible.

Judge Sarah S. Vance, In re Educ. Testing Serv. PLT 7-12 Test Scoring 

Litig., 447 F.Supp.2d 612, 627 (E.D. La. 2006):

At the fairness hearing, class counsel, the Special Master, notice 

expert Todd Hilsee, and the Court Appointed Disbursing Agent 

detailed the reasons for requiring claims forms . . . As Todd Hilsee 

pointed out in his testimony, because plaintiffs had the choice of 

either individualized damages or an expedited payment, to send 

the expedited payments with the notice has the potential of 

encouraging plaintiffs to forego individualized recovery for far less 

than value, merely by cashing the check. The obvious 

undesirability of this suggestion gives the unmistakable 

appearance that the objection was captious. The objection to the 

claims process for expedited payments is overruled.

Judge Richard G. Stearns, In re Lupron® Marketing and Sales Practice 

Litig., 228 F.R.D. 75, 96 (D. Mass. 2005):

I have examined the materials that were used to publicize the 

settlement, and I agree with Hilsee’s opinion that they complied in 

all respects with the “plain, easily understood language” 

requirement of Rule 23(c). In sum, I find that the notice given 

meets the requirements of due process.

Judge John R. Padova, Nichols v. SmithKline Beecham Corp., (Apr. 22, 

2005) No. 00-CV-6222 (E.D. Pa.):

As required by this Court in its Preliminary Approval Order and as 

described in extensive detail in the Affidavit of Todd B. Hilsee on 

Design Implementation and Analysis of Settlement Notice 

Program...Such notice to members of the Class is hereby 

determined to be fully in compliance with requirements of Fed. R. 

Civ. P. 23(e) and due process and is found to be the best notice 

practicable under the circumstances and to constitute due and 

sufficient notice to all entities entitled thereto.
14

Judge Sarah S. Vance, In re Babcock & Wilcox Co., (Aug. 25, 2000) No. 00-

0558 (E.D. La.):

Furthermore, the Committee has not rebutted the affidavit of Todd 

Hilsee. . . that the (debtor’s notice) plan’s reach and frequency 

methodology is consistent with other asbestos-related notice 

programs, mass tort bankruptcies, and other significant notice 

programs...After reviewing debtor’s Notice Plan, and the objections 

raised to it, the Court finds that the plan is reasonably calculated 

to apprise unknown claimants of their rights and meets the due 

process requirements set forth in Mullane . . . Accordingly, the 

Notice Plan is approved.

Judge Joe E. Griffin, Beasley v. Hartford Insurance Company of the 

Midwest, (June 13, 2006) No. CV-2005-58-1 (Cir. Ct. Ark.):

[R]eceived testimony from Mr. Hilsee at the Settlement Approval 

Hearing concerning the success of the notice campaign, including 

the fact that written notice reached 97.7% of the potential Class 

members, the Court finds that it is unnecessary to afford a new 

opportunity to request exclusion to individual Class Members who 

had an earlier opportunity to request exclusion, but did not do so. 

The Court also concludes that the lack of valid objections also 

supports the Court’s decision to not offer a second exclusion 

window . . . Although the Notice Campaign was highly successful 

and resulted in actual mailed notice being received by over 

400,000 Class Members, only one Class Member attempted to file 

a purported objection to either the Stipulation or Class Counsels’ 

Application for Fees. The Court finds it significant that out of over 

400,000 Class Members who received mailed Notice, there was no 

opposition to the proposed Settlement or Class Counsels’ 

Application for Fees, other than the single void objection. The lack 

of opposition by a well-noticed Class strongly supports the 

fairness, reasonableness and adequacy of the Stipulation and 

Class Counsels’ Application for Fees.

Judge James R. Williamson, Kline v. The Progressive Corp., (Nov. 14, 

2002) No. 01-L-6 (Cir. Ct. Ill. Johnson Co.):

The Court has reviewed the Affidavit of Todd B. Hilsee, one of the 

Court-appointed notice administrators, and finds that it is based 

on sound analysis. Mr. Hilsee has substantial experience 

designing and evaluating the effectiveness of notice programs.
15

Judge Ross P. LaDart, Meckstroth v. Toyota Motor Sales USA, Inc., 

(February 7, 2007) No. 583-318 (24th Jud. D. Ct. La.):

[U]nless there’s any objection, the Court is aware of Mr. Hilsee’s

reputation. I’m aware of the most recent Tulane Law Review and

other publications by you and members of your staff. He’s so

accepted as an expert as tendered.

Judge Joseph R. Goodwin, In re Serzone Products Liability Litig., 231 

F.R.D. 221, 236 (S.D. W. Va. 2005):

As Mr. Hilsee explained in his supplemental affidavit, the 

adequacy of notice is measured by whether notice reached Class 

Members and gave them an opportunity to participate, not by 

actual participation. (Hilsee Supp. Aff. ¶ 6(c)(v), June 8, 2005)...Not 

one of the objectors support challenges to the adequacy of notice 

with any kind of evidence; rather, these objections consist of mere 

arguments and speculation. I have, nevertheless, addressed the 

main arguments herein, and I have considered all arguments 

when evaluating the notice in this matter. Accordingly, after 

considering the full record of evidence and filings before the court, 

I FIND that notice in this matter comports with the requirements of 

Due Process under the Fifth Amendment and Federal Rules of Civil 

Procedure 23(c)(2) and 23(e).

Judge Kirk D. Johnson, Zarebski v. Hartford Insurance Company of the 

Midwest, (February 13, 2007) No. CV-2006-409-3 (Cir. Ct. Ark):

Additionally, the court was provided with expert testimony from 

Todd Hilsee at the Settlement Approval Hearing concerning the 

adequacy of the notice program . . . Based on the Court’s review of 

the evidence admitted and argument of counsel, the Court finds 

and concludes that the Class Notice, as disseminated to members 

of the Settlement Class in accordance with provisions of the 

Preliminary Approval Order, was the best notice practicable under 

the circumstances to all members of the Settlement Class. 

Judge Alfred G. Chiantelli, Williams v. Weyerhaeuser Co., (Dec. 22, 2000) 

No. 995787 (Cal. Super. Ct. San Francisco Co.):

The Class Notice complied with this Court’s Order, was the best 

practicable notice, and comports with due process . . . Based upon 

the uncontroverted proof Class Counsel have submitted to the 

Court, the Court finds that the settling parties undertook an 

extensive notice campaign designed by Todd Hilsee . . . a 

nationally recognized expert in this specialized field.
16

Judge Kirk D. Johnson, Sweeten v. American Empire Insurance Co.,

(August 20, 2007) Cir. Ct. Ark., No. CV-2007-154-3: 

[T]he Court . . . of course has recognized the testimony of Todd

Hilsee . . . which was given here today in open court, and Mr.

Hilsee being admitted as an expert in this particular field . . .

Judge Ivan L.R. Lemelle, In re High Sulfur Content Gasoline Prods. 

Liability Litig., (November 8, 2006) MDL No. 1632 (E.D. La.):

[T]his Court approved a carefully-worded Notice Plan. . . See

Affidavit of Todd B. Hilsee on Motion by Billy Ray Kidwell,

attached as Exhibit A; see also, Affidavit of Todd B. Hilsee,

attached as Exhibit C to the Joint Motion for Final Approval of

Class Settlement (Record Doc. No. 71); Testimony of Todd Hilsee at

Preliminary Approval Hearing, Tr. pp 6-17, attached as Exhibit B;

Testimony of Todd Hilsee at Final Fairness Hearing, Tr. pp. 10-22,

attached as Exhibit C.

Regional Senior Justice Winkler, Baxter v. Canada (Attorney General),

(March 10, 2006) No. 00-CV-192059- CPA (Ont. Super. Ct.):

The plaintiffs have retained Todd Hilsee, an expert recognized by 

courts in Canada and the United States in respect of the design of

class action notice programs, to design an effective national notice 

program . . . the English versions of the Notices provided to the 

court on this motion are themselves plainly worded and appear to 

be both informative and designed to be readily understood. It is 

contemplated that the form of notice will be published in English, 

French and Aboriginal languages, as appropriate for each media 

vehicle.

Judge James T. Genovese, West v. G&H Seed Co., (May 27, 2003) 

No. 99-C-4984-A (La. Jud. Dist. Ct. St. Landry Parish):

The court finds that, considering the testimony of Mr. Hilsee, the 

nature of this particular case, and the certifications that this court 

rendered in its original judgment which have been affirmed by the 

– for the most part, affirmed by the appellate courts, the court

finds Mr. Hilsee to be quite knowledgeable in his field and

certainly familiar with these types of cases...the notice has to be

one that is practicable under the circumstances. The notice

provided and prepared by Mr. Hilsee accomplishes that purpose . .

.
17

Judge Milton Gunn Shuffield, Scott v. Blockbuster Inc., (Jan. 22, 2002) No. 

D 162-535 (Tex. Jud. Dist. Ct. Jefferson Co.):

In order to maximize the efficiency of the notice . . .Todd Hilsee . . .

prepared and oversaw the notification plan. The record reflects 

that Mr. Hilsee is very experienced in the area of notification in 

class action settlements...This Court concludes that the notice 

campaign was the best practicable, reasonably calculated, under 

all the circumstances, to apprise interested parties of the 

settlement and afford them an opportunity to present their 

objections . . . The notice campaign was highly successful and 

effective, and it more than satisfied the due process and state law 

requirements for class notice.

Judge Richard G. Stearns, In re Lupron Marketing and Sales Practice 

Litig., 228 F.R.D. 75, 84 (D. Mass. 2005):

Todd B. Hilsee . . . has served as a notice expert in more than 175 

class action cases, including In re Holocaust Victims Assets Litig., 

No. CV-96-4849 (E.D.N.Y.); In re Domestic Air Transp. Antitrust 

Litig., MDL 861 (N.D.Ga.); In re Dow Corning Corp., 95-20512-11 

(Bankr.E.D.Mich.); In re Synthroid Mktg., MDL 1182 (N.D.III.); and 

In re Bridgestone/Firestone Tires Prods. Liab. Litig., MDL No. 1373 

(S.D.Ind.). Hilsee was the only notice expert invited to testify 

before the Advisory Committee on Civil Rules on the amendment to 

Rule 23 requiring "clear, concise, plain language notices." Hilsee 

was also asked by the Federal Judicial Center to design model 

notices to illustrate Rule 23 plain language "best practices."...

Judge Susan Illston (N.D. Cal.), on Todd Hilsee’s presentation at the ABA’s 

7th Annual National institute on Class Actions, Oct. 24, 2003, San Francisco, 

Cal.:

The notice program that was proposed here today, I mean, it’s 

breathtaking. That someone should have thought that clearly 

about how an effective notice would get out. I’ve never seen 

anything like that proposed in practice . . . I thought the program 

was excellent. The techniques available for giving a notification is 

something that everyone should know about.

Madam Justice Joan L. Lax, Donnelly v. United Technologies, (October 27, 

2008) No. 06-CV-320045CP (Ont. Super. Ct.):

. . .Todd Hilsee, an expert recognized by courts in Canada and the 

United State in respect of the design of class action notice 

programs, described the Canadian Notice Plan. . .I am satisfied 
18

that Mr. Hilsee’s plan is comprehensive, that it will have a high 

‘reach’. . .

Madam Justice Joan L. Lax, Wong v. TJX, (February 4, 2008) No. 07-CT000272CP (Ont. Super. Ct.):

Mr. Hilsee has been recognized as a notice expert in Canadian 

class proceedings as well as in the United States. The proposed 

notice plan not only comports with Canadian standards, but it has 

virtually the same coverage as in the United States.

Oregon Court of Appeals, Froeber v. Liberty Mutual, (September 10, 2008) 

No. A132263 (Judge Rex Armstrong):

As to the notice issue, defendants introduced the testimony of 

Hilsee, an expert on notice who helped the parties in this case 

draft, create, and disseminate the notice. Hilsee testified, among 

other things, that the format of the notice followed standards set in 

national model notices, that the content of the notice adequately 

informed readers of the claims that the settlement released, and 

that including specific information about the putative Delaware 

action would have fostered confusion rather than clarity. After 

counsel for defendants and for objectors presented arguments, the 

trial court rejected objectors' notice argument by finding that “the 

notice is adequate. I feel the testimony by Mr. Hilsee is persuasive. 

. .” [T]hose conclusions had support in Hilsee's expert testimony, 

which--although such expert testimony is not strictly required to 

support a determination that notice is adequate--lent persuasive 

support that objectors did not counter or controvert with evidence 

of their own. 

Judge Colleen Mary O’Toole, West v. Carfax, (December 24, 2009) 2009-

Ohio-6857, (Ohio Court of Appeals); 2009 WL 5064143 (Ohio App. 11 Dist.): 

[Appellants] question the effectiveness of email notice to post-2003 

customers, observing that many people simply delete unsolicited 

emails as spam. Further, through the affidavit testimony of their 

expert, Todd B. Hilsee, they question whether mail notice was not 

possible to the balance of Carfax customers. Mr. Hilsee is a 

nationally-recognized expert in designing notices for class actions. 

. . Mr. Hilsee testified that similar procedures are routine in 

automotive litigation. Mr. Hilsee also questioned the efficacy of the 

publication notice given in Investor’s Business Daily and USA 

Today, testifying that these papers were unlikely to be read by the 

population demographic which dominates the used car market.
19

We agree with appellants that, pursuant to Eisen, the notice 

provided in this case was defective.

Mr. Justice J.R. Henderson, Smith v. Inco, (November 13, 2009) No. 

12023/01 (Ontario Super. Ct.):

I also find that Hilsee is qualified to provide an opinion on these 

Issues. Hilsee has been accepted as an expert witness in many 

courts in the United States of America as to the design and 

implementation of notice programs created to notify class members 

of their rights with respect to class actions. He has also provided 

prospective and retrospective analyses of such notice programs, 

both in Canada and the USA. . .Given his education, work 

experience, and prior court involvement, I accept that Hilsee has 

an expertise in the fields of comprehension, dissemination, and 

readability of public documents.

Judge David S. Gorbaty, Orrill v. AIG, Orrill v. AIG, Inc., 38 So. 3d 457, 462-

466 (La.App. 4 Cir. 2010):

It is our opinion that the persons who were suddenly subsumed 

into Orrill settlement class did not receive adequate notice and

were not adequately represented. . . The appellants also presented 

the testimony of Todd Hilsee, who the court accepted as an expert 

in communications and notice. . . Appellants’ expert, Todd Hilsee, 

opined that the notice in this case was woefully inadequate in 

terms of what a qualified professional would use to actually

inform the class of its rights and options.

Judge F. Pat VerSteeg, Weber v. Mobil Oil, (March 21, 2011) Case No. 

CJ-2001-53 (District Court of Custer County, State of Oklahoma):

Based upon testimony of the class notice expert, Todd Hilsee, 

approximately 40% of the putative class resides outside of the 

State of Oklahoma. No provision of the notice distribution plan 

suggests a methodology to reach those absent class members 

residing outside the State of Oklahoma, or for that matter, outside 

Dewey and Custer Counties. To be adequate, the notice plan and 

design must include a methodology whereby the Court can 

objectively determine the effectiveness of the class members 

reached. This is measured by a percentage of at least 70% or 

more. Without a calculation methodology the court has no objective 

basis from which a notice plan can be evaluated. 
20

Judge M. Joseph Tiemann, Billieson v. Housing Authority of New 

Orleans, (May 27, 2011) Case No. 94-19231 (Civil District Court for

The Parish Of Orleans, State Of Louisiana):

[T]he Court also gave consideration to the following...The fact that 

Mr. Hilsee is a highly-regarded Notice Expert, and has provided

thoughtful, scientific, carefully researched and detailed reports, 

analyses, and ultimately, his Affidavit. His recommendations are 

grounded in relevant experience regarding communicating complex 

legal information to class members in class action litigation. He

was a lead author of the Federal Judicial Center’s (the "FJC") 

Model Plain Language Notices, as well as the FJC publication

entitled 2010 Judges’ Class Action Notice and Claims Process 

Checklist and Plain Language Guide, and he contributed content 

on the subject of notice to the FJC's 2010 3rd edition of Managing 

Class Actions: A Pocket Guide for Judges (all of which may be 

found at www.fjc.gov.)

Judge Joan B. Gottschall, Kaufman v. American Express, (August 

2, 2012) Case No. 07-01707 (United States District Court for the 

Northern District of Illinois):

After considering several proposed notice experts for the purpose of 

undertaking a second round of notice in this case, the court gave 

the Settling Parties an opportunity to respond to the proposed 

appointment of Todd B. Hilsee. The court has reviewed the Settling 

Parties’ objections to Mr. Hilsee’s appointment as well as the 

resumes of all proposed experts. The court does not view the 

objections to Mr. Hilsee’s appointment as substantial. Mr. Hilsee 

appears to be the most qualified and experienced expert of those 

proposed, and the court concludes that he is an appropriate expert 

for this type of case

Judge Joan B. Gottschall, Kaufman v. American Express, (August 

9, 2013) Case No. 07-01707 (United States District Court for the 

Northern District of Illinois):

With regard to the limited opposition filed by the intervenors, the 

court agrees with the position taken by Mr. Hilsee, the courtappointed notice expert, that references to the intervenors' 

objections in the Supplemental Notice would not be neutral and 

would potentially prejudice class members, who can decide for 

themselves whether to object to or opt out of the settlement.

Academic and Practitioner Comments
21

Arthur R. Miller, Professor of Law, Harvard Law School:

I read your piece on Mullane with great interest and am delighted 

to learn the details. Indeed, I will probably incorporate some of it 

in my teaching next fall. I think your analysis is rock solid.

Dianne M. Nast, Partner, RodaNast, P.C.:

Your testimony in Atlanta on Tuesday was exceptional. Rarely 

does one find a witness so well prepared, so thoughtful, careful 

and accurate in response to questioning, and so sincerely 

committed to careful preparation and accurate testimony. We are 

all appreciative of the extra effort you brought to the task. If the 

court rules in our favor, it will surely be in some measure as a 

result of your testimony. If the court does not rule in our favor, it 

certainly will not be as a result of anything you omitted or failed to 

do.

Eugene I. Goldman, Partner, McDermott, Will & Emery LLP:

Hilsee was the defendant MCI's notice expert in two consolidated 

consumer class actions filed in Augusta, Georgia. Hilsee 

recognized that the socio-economics of class members indicated 

that the "traditional" media vehicles for notice, i.e., Wall Street 

Journal, would not reach many class members. Hilsee provided 

an affidavit and in-court testimony in favor of a plan that involved 

easy to understand notice in multiple publications. . . He also 

testified against an alternative plan presented by plaintiffs, which 

he felt was inferior. Hilsee was questioned by counsel for the 

parties as well as the Court. The Judge was impressed by Mr. 

Hilsee's expertise and accepted Mr. Hilsee's advice by ordering the 

implementation of Mr. Hilsee's notice plan.

Darren E. Baylor, Associate Director, American Bar Association

Center for Continuing Legal Education:

Todd has definitely developed an entertaining and informative 

presentation on effective notice techniques that creatively connect 

the class member to class action claims. He presents his 

information in a way that educates and engages the audience 

while providing a refreshing perspective on claims notification.

F. Paul Bland, Jr., Staff Attorney, Public Justice:
22

Hilsee has a deep and extensive knowledge of communications 

strategies and marketing for consumers. In several hotly 

contested cases, he has served as an expert witness on behalf of 

my clients, and his thoughtful, thorough and careful analyses 

stood up brilliantly through white-hot cross-examinations and 

probing. I've also seen a good deal of his work in the class action 

notice area, and he's a nationally recognized leader in that field.

Elizabeth J. Cabraser, Partner, Lieff, Cabraser, Heimann & Bernstein, 

LLP, at Tulane Law School, February 2008:

Todd Hilsee understands and appreciates the profound 

implications of notice on due process more than many, many 

lawyers. . . He is a notice expert; he is a communications expert; 

but his dedication to the idea of due process through 

communication transcends his work assignments and his living. . . 

He is a low key, personable person; very matter of fact about what 

he does. Do not be fooled; he is a giant in the field.

Robert J. Niemic, Senior Staff Attorney, Federal Judicial Center:

Todd Hilsee deserves one of the strongest endorsements I can give 

for his expertise on class action notice processes, his hands-on 

contributions to revising notices into plain language documents 

that now serve as "models" for the industry, and his colleagues' 

widespread recognition of him as a foremost world expert. All the 

work that Todd did for the Federal Judicial Center (my employer) 

was pro bono. His commitment to the cause of creating more 

understandable and complete notices for class action plaintiffs is 

unparalleled, in my experience. The resulting illustrative notices 

(posted at www.fjc.gov) reflect significant improvements, in terms 

of form, clarity, and plain language. Todd has had a huge 

national impact on the field of class actions that will endure and 

continue. He is enthusiastic and it's inspiring and enjoyable 

working with him.

Publications

Effective Class Action Notice Promotes Access to Justice: Insight from a New U.S. 

Federal Judicial Center Checklist, Chapter in treatise published by LexisNexis

Accessing Justice – Appraising Class Actions Ten Years After Dutton, Hollick 

and Rumley, 23 SUPREME COURT LAW REVIEW 275 (2011). Chapter Author: 

Todd B. Hilsee, Treatise General Editor: Jasminka Kalajdzic
23

Analysis of the FJC’s 2010 Judges’ Class Action Notice and Claims Process 

Checklist and Guide: A Roadmap to Adequate Notice and Beyond, 12 CLASS

ACTION LITIG. REP. 165-172 (2011). Author: Todd B. Hilsee

Creating Effective Class Action Claim Forms, WESTLAW CLASS ACTION JOURNAL, 

v. 17, iss. 5. (2010); WESTLAW EMPLOYMENT JOURNAL, v. 24, iss. 21. (2010).

Authors: Todd B. Hilsee and Barbara Coyle Hilsee

Analysis of Effectiveness of Class Action Claim Forms, OPTION CONSOMMATEURS, 

(2010). Authors: Todd B. Hilsee and Barbara Coyle Hilsee

Global Class Actions: Lasting Peace or Ticking Time Bombs? 11 CLASS ACTION

LITIG. REP. 394-396 (2010); AMERICAN BAR ASSOCIATION, CLASS ACTIONS AND 

DERIVATIVE SUITS COMMITTEE, Website (2010). Author: Todd B. Hilsee

U.S. Courts Overseeing Multi-National Class Actions: The Notice Issues are 

Everywhere, Course Materials, AMERICAN BAR ASSOCIATION, Annual CLE 

Conference (2010). Author: Todd B. Hilsee

Nationwide Class Actions: Shine a light on (another) bad notice, 9 CLASS ACTION

LITIG. REP. 113-126 (2008); 36 PRODUCT SAFETY AND LIABILITY. REP. 346-59 

(2008); AMERICAN BAR ASSOCIATION, 11th Annual Institute on Class Actions 

(2007). Author: Todd B. Hilsee

Seven Steps to a Successful Class Action Settlement, AMERICAN BAR

ASSOCIATION, SECTION OF LITIGATION, CLASS ACTIONS TODAY 16 (2008). Authors: 

John B. Isbister, Todd B. Hilsee, & Carla A. Peak

Canadian Class Action Notice - A Rising Tide of Effectiveness? OSGOODE HALL

LAW SCHOOL, YORK UNIVERSITY, 4th National Symposium on Class Actions 

(2007). Author: Todd B. Hilsee

The “Desire to Inform” Is in Your Hands: Creatively Design Your Notice Program 

to Reach the Class Members and Satisfy Due Process, AMERICAN BAR

ASSOCIATION, 10th Annual Institute on Class Actions (2006). Author: Todd B. 

Hilsee

Hurricanes, Mobility and Due Process: The “Desire-to-Inform” Requirement for 

Effective Class Action Notice Is Highlighted by Katrina, 80 TULANE LAW REV. 

1771 (2006); reprinted in course materials for: AMERICAN BAR ASSOCIATION, 10th

Annual National Institute on Class Actions (2006); NATIONAL BUSINESS 

INSTITUTE, Class Action Update: Today’s Trends & Strategies for Success 

(2006); CENTER FOR LEGAL EDUCATION INTERNATIONAL, Class Actions: 

Prosecuting and Defending Complex Litigation (2007). Authors: Todd B. 

Hilsee, Gina M. Intrepido, & Shannon R. Wheatman
24

Do You Really Want Me to Know My Rights? The Ethics Behind Due Process in 

Class Action Notice Is More Than Just Plain Language: A Desire to Actually 

Inform, 18 GEORGETOWN JOURNAL LEGAL ETHICS 1359 (2005). Authors: Todd B. 

Hilsee, Shannon R. Wheatman, & Gina M. Intrepido

Notice Provisions in S. 1751 Raise Significant Communications Problems, 5 

Class Action LITIG. REP. 30 (2004). Author: Todd B. Hilsee

Plain Language is Not Enough, FEDERAL TRADE COMMISSION, Protecting 

Consumer Interests in Class Actions (2004). Author: Todd B. Hilsee

The Federal Judicial Center’s Model Plain Language Class Action Notices: A 

New Tool for Practitioners and the Judiciary, 5 CLASS ACTION LITIG. REP. 182 

(2003). Authors: Todd B. Hilsee & Terri R. LeClercq

So you think your notice program is acceptable? Beware: it could be rejected, 

AMERICAN BAR ASSOCIATION CLASS ACTIONS (2003). Author: Todd B. Hilsee

Class Action Notice, CALIFORNIA CLASS ACTIONS PRACTICE AND PROCEDURE, 8-1

(Elizabeth Cabraser ed., 2003). Chapter Author: Todd B. Hilsee

Creating the Federal Judicial Center’s New Illustrative “Model” Plain Language 

Class Action Notices, 13 CLASS ACTIONS & DERIVATIVE SUITS 10 (2003). Authors: 

Todd B. Hilsee & Terri R. LeClercq

It Ain’t Over ‘Til It’s Over—Class Actions Against Microsoft, 12 CLASS ACTIONS &

DERIVATIVE SUITS 2 (2002). Authors: David Romine & Todd Hilsee

Class Action Notice—How, Why, When and Where the Due Process Rubber 

Meets the Road, LOUISIANA STATE BAR ASSOCIATION, 3rd Annual Class 

Action/Mass Tort Symposium (2002). Author: Todd B. Hilsee

A Communications Analysis of the Third Circuit Ruling in MDL 1014: Guidance 

on the Adequacy of Notice, 2 CLASS ACTION LITIG. REP. 712 (2001). Author: Todd 

B. Hilsee

Off of the Back Pages: The Evolution of Class Action Notice: An Analysis of 

Notice in Mullane v. Central Hanover Trust more than 50 years later, MEALEY’S

Judges & Lawyers in Complex Litigation Conference (1999). Author: Todd B. 

Hilsee

Class Action Notice to Diet-Drug Takers: A Scientific Approach, FEN-PHEN LITIG.

STRATEGIST (1999). Author: Todd B. Hilsee

Class Action: The Role of the Media Expert, EMPLOYMENT LITIG. REP. 19524

(1995); ASBESTOS LITIG. REP. 33279 (1995); AUTOMOTIVE LITIG. REP. 23193
25

(1995); MEDICAL DEVICES REPORTER 24 (1995); ASBESTOS PROPERTY LITIG. REP.

20845 (1995); TOXIC CHEMICALS LITIG. REP. 22280 (1995); DES LITIG. REP.

24310 (1995); SECURITIES AND COMMODITIES LITIG. REP. 15 (1996); AIDS LITIG.

REP. 15559 (1996); LEVERAGED BUYOUTS & ACQUISITIONS LITIG. REP. 24 (1996); 

WRONGFUL DISCHARGE REPORT 16 (1996); CORPORATE OFFICERS AND DIRECTORS 

LIABILITY LITIG. REP. 19561 (1996); SEXUAL HARASSMENT LITIG. REP. 22 (1996).

Author: Todd B. Hilsee

Other Published Cites to Hilsee Articles

77 U. Cin. L. Rev 63

69 U. Pitt. L. Rev. 727

60 Fla. L. Rev. 1

80 Tul. L. Rev. 1593

253 F.R.D. 69

22 Loy. Cons. L. Rev. 139

622 ANNALS, AAPSS 51 (2009)

Panels, Speaking and Education

Civil Pretrial Issues and Complex Litigation, FEDERAL JUDICIAL CENTER, National 

Workshops for District Judges (2010). Speaker: Todd B. Hilsee

Global Class Actions: Lasting Peace or Ticking Time Bombs? AMERICAN BAR 

ASSOCIATION, Section of Litigation Annual National Meeting (2010). Panel Chair 

and Speaker: Todd B. Hilsee

Holocaust Litigation Notice, HARVARD LAW SCHOOL, (2010). Speaker: Todd B. 

Hilsee

Class Action Notice, TULANE LAW REVIEW SYMPOSIUM, The Problem of Multidistrict 

Litigation (2008). Speaker: Todd B. Hilsee

The Nationwide Class: White Elephant, Endangered Species, or Alive and Well?,

AMERICAN BAR ASSOCIATION, 11th Annual National Institute on Class Actions 

(2007). Speaker: Todd B Hilsee.

The Settlement Process: Notice and Claims Administration, CENTER FOR LEGAL 

EDUCATION INTERNATIONAL, Class Actions: Prosecuting and Defending Complex 

Litigation (2007). Speaker: Todd B. Hilsee. 

Notice to Class Members: Is too Little Money Being Spent on Notice and will the 

Tide Turn?, OSGOODE HALL LAW SCHOOL, YORK UNIVERSITY, 4TH NATIONAL 

SYMPOSIUM ON CLASS ACTIONS (2007). SPEAKER: TODD B HILSEE.
26

Man on the Street - Interviews with Class Members, Notice & Settlement 

Participation: AMERICAN BAR ASSOCIATION, 10th Annual National Institute on 

Class Actions (2006); NATIONAL BUSINESS INSTITUTE, Class Action Update:

Today’s Trends & Strategies for Success (2006); GEORGETOWN UNIVERSITY LAW 

SCHOOL (2006); TULANE LAW SCHOOL (2007). Host/Presenter: Todd B. Hilsee.

Class Action Notice, NATIONAL BUSINESS INSTITUTE, Class Action Update: Today’s 

Trends & Strategies for Success (2006). Speaker: Todd B. Hilsee.

If You Build It, They Will Come—Crafting Creative, Coupon-Free Settlements,

AMERICAN BAR ASSOCIATION, 10th Annual National Institute on Class Actions 

(2006). Speaker: Todd B Hilsee.

Man on the Street - Interviews with Class Members, Plain Language: COLUMBIA 

LAW SCHOOL (2005); NEW YORK UNIVERSITY SCHOOL OF LAW (2005); TEMPLE LAW 

SCHOOL (2006); CLEVELAND-MARSHALL COLLEGE OF LAW (2006); TULANE LAW 

SCHOOL (2007). Host/Presenter: Todd B. Hilsee.

How to Construct Effective Notice Campaigns to Best Protect Class Action 

Settlements, Lecture at: CLEVELAND-MARSHALL COLLEGE OF LAW (3/28/06). 

Guest Lecturer: Todd B. Hilsee.

Judges Round Table, SUPERIOR COURT OF CALIFORNIA, County of Los Angeles, 

Central Civil West Court House (3/21/06). Speaker: Todd B. Hilsee.

Do You Really Want Me to Know My Rights? The ‘Ethics’ Behind Due Process in 

Class Action Notice Is More Than Just Plain Language: A Desire to Actually 

Inform, NATIONAL ASSOCIATION OF SHAREHOLDER AND CONSUMER ATTORNEYS 

(NASCAT), (2005). Speaker: Todd B. Hilsee.

Will the Settlement Survive Notice and Associated Due Process Concerns?

LOUISIANA BAR ASSOCIATION, 5th Annual Class Action/Mass Tort Symposium 

(2004). Speaker: Todd B. Hilsee.

Let’s Talk—The Ethical and Practical Issues of Communicating with Members of 

a Class, AMERICAN BAR ASSOCIATION, 8th Annual National Institute on Class 

Actions (2004). Speaker: Todd B Hilsee.

Clear Notices, Claims Administration and Market Makers, FEDERAL TRADE 

COMMISSION, Protecting Consumer interests in Class Action Workshop (2004). 

Speaker: Todd B. Hilsee.

I’ve Noticed You’ve Settled—Or Have You, AMERICAN BAR ASSOCIATION, 7th

Annual National Institute on Class Action (2003). Speaker: Todd B. Hilsee.
27

Class Action Notice—How, Why, When And Where the Due Process Rubber 

Meets The Road, LOUISIANA BAR ASSOCIATION, 3rd Annual Class Action/Mass 

Tort Symposium (2002). Speaker: Todd B. Hilsee.

Plain English Notices called for in August, 2003 proposed amendments to Rule 

23, ADVISORY COMMITTEE ON CIVIL RULES OF THE JUDICIAL CONFERENCE OF THE 

UNITED STATES, Hearing on Rule 23 (2002). Witness: Todd B. Hilsee.

Generation X on Trial, AMERICAN BAR ASSOCIATION, Section of Litigation Annual 

Meeting (2001). Speaker: Todd B. Hilsee.

Tires, Technology and Telecommunications, Class Action and Derivative Suits 

Committee, AMERICAN BAR ASSOCIATION, Section of Litigation Annual Meeting

(2001). Speaker: Todd B. Hilsee.

Class Actions, MEALEY'S Judges and Lawyers in Complex Litigation Conference 

(1999). Speaker: Todd B. Hilsee.

Case Experience

Todd B. Hilsee’s case experience includes the following partial listing of cases 

(inclusive of all cases in which testimony provided at deposition or trial in past 

4 years as marked with *):

Acacia Media Techs. Corp. v. 

Cybernet Ventures 

C.D. Cal., SACV03-1803 GLT 

(Anx)

Accounting Outsourcing v. Verizon 

Wireless M.D. La., No. 03-CV-161

Allen v. Monsanto Cir. Ct. W.Va., No 041465

Allison v. AT&T 1st Jud. D.C. N.M., No. D-0101-

CV-20020041

AMA v. United Healthcare * S.D.N.Y., 00-CV-2800 

Anderson v. Attorney General of 

Canada

Supr. Ct., Newfoundland, No. 

2007 01T4955CP

Andrews v. MCI S.D. Ga., CV 191-175

Anesthesia Care Assocs. v. Blue 

Cross of Cal. Cal. Super. Ct., No. 986677

Angel v. U.S. Tire Recovery Cir. Ct. W. Va., No. 06-C-855

Avery v. State Farm Auto. Ins. Cir. Ct. Ill., 97-L-114
28

Bacardi v. Bertram Yachts * S.D. Fla., No. 1:11-cv-21722

Baiz v. Mountain View Cemetery Cal. Super. Ct., No. 809869-2 

Baker v. Jewel Food Stores & 

Dominick’s Finer Foods

Cir. Ct. Ill. Cook Co., No. 00-L9664

Barbanti v. W.R. Grace Wash. Super. Ct., 00201756-6 

Bardessono v. Ford Motor Wash. Super. Ct., No. 32494

Barnes v. Am. Tobacco E.D. Pa., 96-5903

Barnett v. Wal-Mart Stores Wash. Super. Ct., No. 01-2-

24553-8 SEA

Beasley v. Hartford Insurance Co. 

of the Midwest Cir. Ct. Ark., No. CV-2005-58-1 

Beasley v. Reliable Life Insurance Cir. Ct. Ark., No. CV-2005-58-1 

Becherer v. Qwest 

Communications Int’l

Cir. Ct. Ill., Clair Co., No. 02-

L140 

Beringer v. Certegy Check Services M.D. Fla., No. 8:07-CV-1434-T23TGW

Billieson v. City of New Orleans C.D.C. Orleans Par., La., No. 94-

19231

Bond v. American Family 

Insurance D. Ariz., CV06-01249-PXH-DGC

Bowden v. Phillips Petroleum Dist. Ct., Ft. Bend Co., Tex., No. 

107968 

Bowling, et al. v. Pfizer S.D. Ohio, No. C-1-91-256

Bownes v. First USA Bank Cir. Ct. Ala., CV-99-2479-PR

Brookshire Bros. v. Chiquita S.D. Fla., No. 05-CIV-21962

Brown v. Am. Tobacco Cal. Super. Ct., J.C.C.P. 4042 

No. 711400

Brown v. Credit Suisse First 

Boston C.D. La., No. 02-13738

Bruno v. Quten C.D. Cal., No. SACV 11-00173

Bryant v. Wyndham Int’l.

Cal. Super. Ct., Nos. GIC 

765441, GIC 777547 

(Consolidated)

Burgess v. Farmers Insurance Dist. Ct. Comanche Co., Okla., 

CJ-2001-292

Carnegie v. Household Int’l N. D. Ill., No. 98-C-2178
29

Carson v. Daimler Chrysler W.D. Tenn., No. 99-2896 TU A

Carter v. North Central Life Ins. * Ga. Super. Ct., No. SU-2006-CV3764-6

Castano v. Am. Tobacco E.D. La., CV 94-1044

Castillo v. Mike Tyson N.Y. Super. Ct., 114044/97

Cazenave v. Sheriff Charles C. Foti E.D. La., No. 00-CV-1246

Chambers v. Daimler Chrysler N.C. Super. Ct., No. 01:CVS1555

Chapman v. Butler & Hosch, P.A. 2nd Jud. Cir. Fla., No. 2000-

2879

Chestnut v. Progressive Casualty 

Ins. Ohio C.P., No. 460971

Chisolm v. Transouth Fin. 4th U.S. Cir. Ct., 97-1970

Ciabattari v. Toyota Motor Sales N.D. Cal., No. C-05-04289-BZ

Claims Conference–Jewish Slave 

Labour Outreach Program German Government Initiative

Clark v. Pfizer * C.P. Pa. Phila. Co., No. 9709-

3162

Clark v. Tap Pharmaceutical 

Prods. 

5th Dist. App. Ct. Ill., No. 5-02-

0316

Clearview Imaging v. Progressive 

Consumer Ins. 

Cir. Ct. Fla. Hillsborough Co., 

No. 03-4174

Cotten v. Ferman Mgmt. Servs. 13th Jud. Cir. Fla., No. 02-08115 

Cox v. Shell Oil Tenn. Ch., 18,844

Crane v. Hackett Assocs. E.D. Pa., 98-5504

Crawley v. Chrysler Pa. C.P., CV-4900

Curtis v. Hollywood Entm’t Wash. Super. Ct., No. 01-2-

36007-8 SEA

Daniel v. AON Cir. Ct. Ill., No. 99 CH 11893

Davis v. Am. Home Products * Civ. D. Ct. La., No. 94-11684 

Defrates v. Hollywood Entm’t Cir. Ct. Ill., St. Clair. Co., No. 

02L707

Delay v. Hurd Millwork Wash. Super. Ct., 97-2-07371-0 

Desportes v. American General 

Assurance Co.

* Ga. Super. Ct., No. SU-04-CV3637
30

Dietschi v. Am. Home Products W.D. Wash., No. C01-0306L

Dimitrios v. CVS Pa. C.P., No. 99-6209 

Donnelly v. United Technologies Ont. Super. Ct., No. 06-CV320045CP

Efthimiou v. Cash Money * Ct. of Queens Bench, Alberta, 

No. 1001-04191

Ervin v. Movie Gallery Tenn. Ch. Fayette Co., No. CV13007

Fields v. Great Spring Waters of 

Am. Cal. Super. Ct., No. 302774

First State Orthopaedics et al. v. 

Concentra, Inc., et al. E.D. Pa. No. 2:05-CV-04951-AB

Fisher v. Virginia Electric & Power 

Co. E.D. Va., No 3:02-CV-431

Ford Explorer Cases * Cal. Super. Ct., JCCP Nos. 4226 

& 4270

Foultz v. Erie Ins. Exchange C.P. Pa., No. 000203053

Friedman v. Microsoft Ariz. Super. Ct., No. CV 2000-

000722

Froeber v. Liberty Mutual Fire Ins. * Cir. Ct. Ore., No. 00C15234

Fry v. Hoechst Celanese Cir. Ct. Fla., 95-6414 CA11

Fulghum v. Embarq D. Kansas, No. 07-CV-2602

Gardner v. Stimson Lumber Wash. Super. Ct., No. 00-2-

17633-3SEA

Garrett v. Hurley State Bank Cir. Ct. Miss., No. 99-0337

Gastke v. Louisiana Clerks of 

Court E.D. La., 2:06 CV0257

Gaynoe v. First Union N.C. Super. Ct., No. 97-CVS16536

George v. Ford Motor M.D. Tenn., No. 3:04-0783

Goldenberg v. Marriott PLC D. Md., PJM 95-3461

Gordon v. Microsoft 4th Jud. D. Ct. Minn., No. 00-

5994

Govt. Employees Hospital Assoc. v. 

Serono D. Mass., 06-CA-10613-PBS

Gray v. New Hampshire Indemnity Cir. Ct. Ark., No. CV-2002-952-

2-3
31

Grays Harbor v. Carrier 

Corporation W.D. Wash., No. 05-05437-RBL

Gunderson v. F.A. Richard & 

Associates

* 14th Jud. D. Ct. La., No. 2004-

2417-D

Gunderson v. Focus Healthcare 

Management

* 14th Jud. D. Ct. La., No. 2004-

2417-D

Gustafson v. 

Bridgestone/Firestone S.D. Ill., Civil No. 00-612-DRH

Gutterman v. Am. Airlines Cir. Ct. Ill., 95CH982

Hammer v. JP’s Southwestern 

Foods

W.D. Mo., No. 08-0339-CV-WFJG

Harp v. Qwest Communications Circ. Ct. Ore., No. 0110-10986

Harper v. Equifax E.D. Pa., No. 2:04-CV-03584-

TON

Harper v. MCI S.D. Ga., CV 192-134

Hensley v. Computer Sciences Cir. Ct. Ark., No. CV-2005-59-3

Hershey v. ExxonMobil D. Kansas, No. 6:07-cv-1300-

JTM-KMH

Hill v. Galaxy Cablevision N.D. Miss., No. 1:98CV51-D-D

Hill v. State Farm Mutual Auto Ins. Cal. Super. Ct., No. BC 194491

Hoeffner v. The Estate of Alan 

Kenneth Vieira Cal. Super. Ct., No. 97-AS 02993

Homeless Shelter Compensation 

Program City of New York

Hunsucker v. American Standard 

Ins. Co. of Wisconsin Cir. Ct. Ark., No. CV-2007-155-3

In re Alstom SA Securities Litig. S.D. N.Y., No. 03-CV-6595 VM

In re Amino Acid Lysine Antitrust 

Litig. N.D. Ill., MDL No. 1083

In re Babcock and Wilcox Co. E.D. La., 00-10992

In re Bausch & Lomb Contact Lens 

Litig. N.D. Ala., 94-C-1144-WW

In re Baycol Litig. D. Minn., MDL No. 1431 

In re Bolar Pharm. Generic Drugs 

Consumer Litig. E.D. Pa., MDL No. 849

In re Bridgestone Securities Litig. M.D. Tenn., No. 3:01-CV-0017
32

In re Bridgestone/Firestone Tires 

Prods. Liability Litig. S.D. Ind., MDL No. 1373

In re Columbia/HCA Healthcare M.D. Tenn., MDL No. 1227

In re Conagra Peanut Butter 

Products Liability Litig. N.D. Ga., 1:07-MDL-1845 (TWT)

In re Domestic Air Transp. 

Antitrust Litig. N.D. Ga., MDL No. 861

In re Dow Corning Corp. E.D. Mich., 95-20512-11-AJS

In re Educ. Testing Serv. PLT 7-12 

Test Scoring Litig.

* E.D. La., MDL-1643

In re Ephedra Prods. Liability Litig. D. N.Y., MDL-1598

In re Estate of Ferdinand Marcos D. Hawaii, MDL No. 840

In re Factor Concentrate Blood 

Prods. Litig. N.D. Ill., MDL No. 986

In re The Flintkote Company D. Del. Bankr., No. 04-11300

In re Ford Ignition Switch Prods. 

Liability Litig. D. N.J., 96-CV-3125

In Re Ford Motor Co. E-350 Van 

Products Liability Litigation

* D.N.J., MDL No. 1687

In re Ford Motor Co. Vehicle Paint 

Litig. E.D. La., 95-0485, MDL No. 1063

In re GM Truck Fuel Tank Prods. 

Liability Litig. E.D. Pa., MDL No. 1112

In re Graphite Electrodes Antitrust 

Litig. 

E.D. Pa., 97-CV-4182, MDL No.

1244

In re Guidant Corp. Plantable 

Defibrillators Products Liab. Litig.

D. Minn., MDL No. 05-1708

(DWF/AJB)

In re High Sulfur Content Gasoline 

Prods. Liability Litig.

* E.D. La., MDL No. 1632

In re Holocaust Victims Assets 

Litig. E.D. N.Y., CV-96-4849

In re Lupron Marketing & Sales 

Practices Litig. D. Mass., MDL No.1430

In re Mutual Funds Investment 

Litig. D. Md., MDL No. 1586

In re Oil Spill by the Oil Rig 

“Deepwater Horizon” E.D. La., MDL No. 2179

In re PA Diet Drugs Litig. C.P. Pa. Phila. Co., No. 9709-
33

3162

In re Parmalat Securities Litig. S.D. N.Y., MDL No. 1653 (LAK)

In re Pharmaceutical Industry 

Average Wholesale Price Litig. D. Mass., MDL 1456 

In re Pittsburgh Corning Bankr. W.D. Pa., No. 00-22876-

JKF

In re PRK/LASIK Consumer Litig. Cal. Super. Ct., CV-772894

In re Residential Doors Antitrust 

Litig. E.D. Pa., MDL No. 1039

In re Residential Schools Class 

Action Litig.

* Ont. Super. Ct., 00-CV-192059 

CPA

In re Royal Ahold Securities and 

“ERISA” Litig. D. Md., MDL 1539

In re SCOR Holding AG Litig. S.D. N.Y., 04 Civ. 7897

In re Serzone Prods. Liability Litig. S.D. W. Va., MDL No. 1477 

In re Silicone Gel Breast Implant 

Prods. Liability Litig. N.D. Ala., MDL No. 926

In re Solutia Inc. S.D. N.Y., No. 03-17949-PCB

In re Steel Drums Antitrust Litig. S.D. Ohio, C-1-91-208

In re Steel Pails Antitrust Litig. S.D. Ohio, C-1-91-213

In re Synthroid Mktg. Litig. N.D. Ill., MDL No. 1182

In re Television Writers Cases Cal. Super. Ct., LA County, NO. 

BC 268 836

In re Texaco S.D. N.Y. Nos. 87 B 20142, 87 B 

20143, 87 B 20144.

In re TJX Companies Retail 

Security Breach Litig. D. Mass., MDL No. 1838

In re Tobacco Cases II Cal. Super. Ct., J.C.C.P. No. 

4042

In re Unum Provident Corp. D. Tenn. No. 1:03-CV-1000

In re USG Corp. Bankr. D. Del., No. 01-02094-

RJN

In re Vivendi Universal, S.A. 

Securities Litig. S.D. N.Y., No. 02-CIV-5571 RJH

In re W.R. Grace & Co. * Bankr. D. Del., No. 01-01139-

JJF
34

In re: Propulsid Products Liability 

Litig. E.D. La., MDL No. 1355

In re: Whirlpool Corp. Frontloading

Washer Products Liability 

Litigation

*

N.D. Ohio, 1:08-wp-65000

Int’l Commission on Holocaust Era 

Ins. Claims – Worldwide Outreach 

Program

Former Secretary of State 

Lawrence Eagleburger 

Commission

Int’l Org. of Migration – German 

Forced Labour Compensation 

Programme

Geneva, Switzerland

Jacobs v. Winthrop Fin. Assocs. D. Mass., 99-CV-11363

Johnson v. Ethicon

Cir. Ct. W. Va. Kanawha Co., 

Nos. 01-C-1530, 1531, 1533, 01-

C-2491 to 2500

Johnson v. Norwest Fin. Alabama Cir. Ct. Ala., CV-93-PT-962-S 

Johnson v. Progressive Cir. Ct. Ark., No. CV-2003-513

Jones v. Hewlett-Packard Cal. Super. Ct., No. 302887

Jordan v. A.A. Friedman M.D. Ga., 95-52-COL

Kalhammer v. First USA Cir. Ct. Cal., C96-45632010-CAL

Kapustin v. YBM Magnex Int’l E.D. Pa., 98-CV-6599

Kellerman v. MCI Cir. Ct. Ill., 82 CH 11065

Kent v. Daimler Chrysler N.D. Cal., No. C01-3293-JCS

Kline v. Progressive Cir. Ct. Ill., Johnson Co., No. 01-

L-6

Krebs v. Safeco * Wash. Super. Ct., No. 10-2-

17373-1 SEA

Kunhel v. CNA Ins. Companies N.J. Super. Ct., ATL-C-0184-94

Larson v. AT&T Mobility * D.N.J., 07-05325

Lee v. Allstate Cir. Ct. Ill., Kane Co., No. 03 LK 

127

Lee v. Carter-Reed N.J. Super. Ct., No. UNN-L-3969

Leff v. YBM Magnex Int’l E.D. Pa., 95-CV-89

Lewis v. Bayer AG 1st Jud. Dist. Ct. Pa., No. 

002353
35

Linn v. Roto-Rooter C.P. Ohio, No. CV-467403

Lozano v. AT&T Wireless C.D. Cal., CV-02-00090

Luikart v. Wyeth Am. Home 

Products Cir. Ct. W. Va., No. 04-C-127

Madsen v. Prudential Federal 

Savings & Loan

3rd Jud. Dist. Ct. Utah, No. C79-

8404

Mangone v. First USA Bank Cir. Ct. Ill., 99AR672a

Mantzouris v. Scarritt Motor Group M.D. Fla., No. 8:03-CV-0015-T30-MSS

McCall v. John Hancock Cir. Ct. N.M., No. CV-2000-2818

McCurdy v. Norwest Fin. Alabama Cir. Ct. Ala., CV-95-2601

McManus v. Fleetwood Enter. D. Ct. Tex., No. SA-99-CA-464-

FB

McNall v. Mastercard 13th Tenn. Jud. Dist. Ct. 

Memphis

Meckstroth v. Toyota Motor Sales * 24th Jud. D. Ct. La., No. 583-

318

Meers v. Shell Oil Cal. Super. Ct., M30590

Mehl v. Canadian Pacific Railway D. N.D., No. A4-02-009

Microsoft I-V Cases Cal. Super. Ct., J.C.C.P. No. 

4106

Miller v. Basic Research D. Utah, No. 2:07-cv-00871

Morris v. Liberty Mutual Fire Ins. D. Okla., No. CJ-03-714

Morrow v. Conoco * D. La., No. 2002-3860

Mostajo v. Coast Nat’l Ins. Cal. Super. Ct., No. 00 CC 15165

Moyle v. Liberty Mutual S.D. Cal., No. 10cv2179 DMS

Multinational Outreach - East 

Germany Property Claims Claims Conference

Munsey v. Cox Communications Civ. D. Ct., La., No. 97 19571

Murray v. IndyMac Bank. F.S.B. N.D. Ill., No. 04 C 7669

Myers v. Rite Aid of PA C.P. Pa., No. 01-2771

Naef v. Masonite Cir. Ct. Ala., CV-94-4033

National Assoc. of Police Orgs. v. Cir. Ct. Mich. Antrim Co., 04-
36

Second Chance Body Armor 8018-NP 

National Socialist Era 

Compensation Fund Republic of Austria

Nature Guard Cement Roofing 

Shingles Cases

Cal. Super. Ct., J.C.C.P. No. 

4215

Navarro-Rice v. First USA Cir. Ct. Ore., 9709-06901

Nichols v. SmithKline Beecham E.D. Pa., No. 00-6222

Oborski v. United Healthcare S.D.N.Y., 00-CV-7246

Olinde v. Texaco M.D. La., No. 96-390

Orrill v. Louisiana Citizens * C.D.C. Orleans Par., La., No.

2005-11720

Oubre v. Louisiana Citizens * 24th Jud. Dist. Ct., La., No. 625-

567

Palace v. Daimler Chrysler Cir. Ct. Ill., Cook Co., No. 01-CH13168

Parsons/Currie v. McDonalds

Rest’s.

Ont. Sup. Ct., No. 02-CV235958CP/No. 02-CV-238276

Paul and Strode v. Country Mutual 

Ins. Cir. Ct. Ill., 99-L-995

Pease v. Jasper Wyman & Son, 

Merrill Blueberry Farms Inc., 

Allen’s Blueberry Freezer Inc. & 

Cherryfield Foods Inc. 

Me. Super. Ct., No. CV-00-015

Peek v. Microsoft Cir. Ct. Ark.., No. CV-2006-2612

Pennington v. Coca Cola Cir. Ct. Mo. Jackson Co., No. 04-

CV-208580

Perrine v. E.I. Du Pont De Nemours Cir. Ct. W. Va., No. 04-C-296-2 

Perry v. Mastercard Int’l Ariz. Super. Ct., No. CV2003-

007154

Peters v. First Union Direct Bank M.D. Fla., No. 8:01-CV-958-T-26

TBM

Peterson v. State Farm Mutual 

Auto. Ins. Cir. Ct. Ill., No. 99-L-394A

Peyroux v. The United States of 

America E.D. La., No. 06-2317

Providian Credit Card Cases Cal. Super. Ct., J.C.C.P. No. 

4085
37

Ragoonanan v. Imperial Tobacco Ont. Super. Ct., No. 00-CV183165 CP

Raysick v. Quaker State Slick 50 Dist. Tex., 96-12610

Reynolds v. Hartford Financial 

Group D. Ore., No. CV-01-1529 BR

Richison v. Am. Cemwood Cal. Super. Ct., No. 005532

Robinson v. Marine Midland N.D. Ill., 95 C 5635

Rogers v. Clark Equipment Cir. Ct. Ill., No. 97-L-20

Rolnik v. AT&T Wireless Servs. N.J. Super. Ct., No. L-180-04

Rosenberg v. Academy Collection 

Service E.D. Pa., No. 04-CV-5585

Salkin v. MasterCard Int’l Pa. C.P., No. 2648

Sanders v. Great Spring Waters of 

Am. Cal. Super. Ct., No. 303549

Santos v. Government of Guam D. Guam, No. 04-00049

Sauro v. Murphy Oil USA E.D. La., No. 05-4427

Schlink v. Edina Realty Title 4th Jud. D. Ct. Minn., No. 02-

018380

Schwab v. Philip Morris E.D. N.Y., CV-04-1945

Scott v. Am. Tobacco La. Civ. Dist. Ct., 96-8461

Scott v. Blockbuster 136th Tex. Jud. Dist. Jefferson 

Co., No. D 162-535 

Sims v. Allstate Ins. Cir. Ct. Ill., No. 99-L-393A

Singleton v. Hornell Brewing Co. Cal. Super. Ct., No. BC 288 754

Small v. Lorillard Tobacco N.Y. Super. Ct., 110949/96

Smith v. Inco Ltd. * Ont. Super. Ct., 12023/01

Soders v. General Motors C.P. Pa., No. CI-00-04255

Spence v. Microsoft Cir. Ct. Wis. Milwaukee Co., No. 

00-CV-003042

Spitzfaden v. Dow Corning La. Civ. Dist. Ct., 92-2589

Splater v. Thermal Ease Hydronic 

Systems

Wash. Super. Ct., 03-2-33553-3-

SEA

Springer v. Biomedical Tissue Cir. Ct. Ind. Marion Co., No. 
38

Services 1:06-CV-00332-SEB-VSS

St. John v. Am. Home Products Wash. Super. Ct., 97-2-06368

Stefanyshyn v. Consol. Indus. Ind. Super. Ct., No. 79 D 01-

9712-CT-59

Stern v. AT&T Mobility C.D. Cal., CV-05-08842

Stetser v. TAP Pharm. Prods. & 

Abbott Laboratories

N.C. Super. Ct., No. 01-CVS5268

Stewart v. Avon Prods. E.D. Pa., 98-CV-4135

Sunderman v. Regeneration 

Technologies

S.D. Ohio, No. 1:06-CV-075-

MHW

Sweeten v. American Empire 

Insurance

* Cir. Ct. Ark., No. 2007-154-3

Talalai v. Cooper Tire & Rubber N.J. Super. Ct., Middlesex 

County, No. MID-L-8839-00 MT

Tawney v. Columbia Natural Res. Cir. Ct. W. Va. Roane Co., No. 

03-C-10E

Tempest v. Rainforest Café D. Minn., 98-CV-608

Thibodeau v. Comcast E.D. Pa., No. 04-CV-1777

Thibodeaux v. Conoco Philips D. La., No. 2003-481

Thompson v. Metropolitan Life Ins. S.D. N.Y., No. 00-CIV-5071 HB

Ting v. AT&T N.D. Cal., No. C-01-2969-BZ

Tobacco Farmer Transition 

Program U.S. Dept. of Agric.

Tuck v. Whirlpool & Sears, 

Roebuck 

Cir. Ct. Ind. Marion Co., No. 

49C01-0111-CP-002701

Turner v. Murphy Oil USA * E.D. La., No. 2:05-CV-04206-

EEF-JCW 

Walker v. Rite Aid of PA C.P. Pa., No. 99-6210

Walker v. Tap Pharmaceutical 

Prods.

N.J. Super. Ct., No. CV CPM-L682-01

Walls v. Am. Tobacco N.D. Okla., 97-CV-218-H

Walton v. Ford Motor Cal. Super. Ct., No. SCVSS 

126737

Webb v. Liberty Mutual Insurance Cir. Ct. Ark., No. CV-2007-418-3

Weber v. Mobil Oil * Dist. Ct. Okla., No. CJ-2001-53
39

Wells v. Chevy Chase Bank Cir. Ct. Md. Balt. City, No. C-99-

000202

West v. Carfax Ohio C.P., No. 04-CV-1898 (ADL)

West v. G&H Seed 27th Jud. D. Ct. La., No. 99-C4984-A

Westman v. Rogers Family Funeral 

Home Cal. Super. Ct., No. C-98-03165

Whetman v. IKON E.D. Pa., Civil No. 00-87

White v. Washington Mutual 4th Jud. D. Ct. Minn., No. CT 

03-1282

Williams v. Weyerhaeuser Cal. Super. Ct., CV-995787

Wilson v. Servier Canada Ont. Super. Ct., 98-CV-158832

Withrow v. Enterprise Cir. Ct. of St. Louis, Mo., No. 

10SL-CC01712

Wong v. TJX Ont. Super. Ct., No. 07-CT000272CP

Woodard v. Andrus E.D. La., 2:03 CV2098

World Holdings v. Federal Republic 

of Germany S.D. Fla., 1:08-cv-20198

Yacout v. Federal Pacific Electric N.J. Super. Ct., No. MID-L-2904-

97

Zarebski v. Hartford Insurance Co. 

of the Midwest

* Cir. Ct. Ark., No. CV-2006-409-3

Work Experience

The Hilsee Group LLC Feb. 2008 - Present Principal

Hilsoft Notifications Oct. 1994 – Feb. 2008 President

Foote Cone & Belding 1987 – 1994 Account Director

Greenwald/Christian 1985 – 1987 Account Executive

McAdams & Ong 1983 – 1985 Media Planner

Education

The Pennsylvania State University 1982 B.S. Marketing Management
ATTACHMENT 2 
1 | Page

March 23, 2016

To: The Advisory Committee on Civil Rules of the

Judicial Conference of the United States, 

and Members of the Rule 23 Subcommittee

by email

Troubling Class Action Notice Trends

are Impacting Potential Rule 23 Changes

Dear Committee and Subcommittee Members: 

I understand that a current “sketch” of a potential change to Fed. R. Civ. P. 23(c)(2)(B), if 

adopted, would specify that “electronic means” or “other appropriate means” are as

acceptable for individual notice as “United States mail.” Speaking respectfully as a notice 

expert who has practiced continuously for more than 25 years including devoting significant pro 

bono time to the Federal Judicial Center’s work to improve notice, and who cares deeply about 

the improvements that have come about during this time, this change should not be adopted.

1

Except the rare instance when one hands a notice to class members, first class mail is the most 

effective individual notice method, and suppositions to the contrary are erroneous. Physical 

mail should be required in almost all instances when reasonably possible. Not sending mailings

when they can be sent will reduce already low class action notice response rates, and bring 

disrespect upon the courts that oversee class actions.

1 Todd B. Hilsee is a class action notice expert who analyzes notice for courts, special masters, and attorneys. He

was the first such expert recognized in the U.S. (1992) and in Canada (2000). Hilsee was trained in mass 

communications, advertising and media audience measurement, and has practiced continuously. He collaborated, 

pro bono, with the Federal Judicial Center to create the FJC’s Illustrative “model” Plain Language Notices, at the 

invitation of the Advisory Committee on Civil Rules in 2002. Those models are used by Courts throughout the U.S. 

today. Hilsee also collaborated with the FJC to create their Judges’ Class Action Notice and Claims Process 

Checklist and Plain Language Guide in 2010. The FJC Checklist has been relied upon in countless filings and 

recognized in many court decisions. Hilsee was cited by the FJC for updating with them the notice and claims 

sections of their Managing Class Action Litigation: A Pocket Guide for Judges, also in 2010. He has designed and 

undertaken more than 275 of the most significant class action notice efforts in history. Hilsee has worked with the 

most experienced notice administrators for over 25 years, though he is independent from claims administrators, 

and no longer implements notice campaigns. 
2 | Page

This letter also discloses problematic recent class action notice “industry” practices that may 

have fueled the proposal, and which pose grave risk to the future and legitimacy of the class 

action device. Other notice-related Rule 23 suggestions are addressed at the end of this report.

The Rule 23(c)(2)(B) “Sketch” Proposal

I have read the Jan. 29, 2016 report of the Rule 23 Subcommittee of the Civil Rules Advisory 

Committee. Apparently, a possible edited Rule 23(c)(2)(B) would read (in part) as follows

(changes underlined):

“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—by 

United States mail, electronic means or other appropriate means—to all members who 

can be identified through reasonable effort.” 

Administrators Know that First Class U.S. Mailings are Most Effective 

The “sketch” is premised on these Rule 23 Subcommittee notes:

“Since Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), interpreted the individual notice 

requirement for class members in Rule 23(b)(3) class actions, many courts interpreted 

the rule to require notice by first class mail in every case. But technology has changed 

since 1974 and other forms of communication may be more reliable, more effective, and 

less costly. The rule calls for giving class members “the best notice that is practicable.” 

It does not specify any particular means as preferred. Although it may often be true that 

online notice, most often by email, is the most effective, it is important to leap in mind 

that a significant portion of class members in certain cases may have limited or no 

access to the Internet”

While technology has obviously changed mass-communications: 

a. It is not correct that “other forms of communication may be more reliable, more

effective” for class action notice than first class mail.

b. It is not correct that “online notice, most often by email, is the most effective.”

Claims administrators typically keep response rates private. They treat the data as proprietary 

information, despite the fact that they serve courts. This is wrong. Any significant rule change 

should be based on actual data that is fully vetted as to the true effectiveness of various forms 

of notice. The subcommittee should obtain and study response rate information before making 

a change of this magnitude.
3 | Page

I have worked together with many different claims administrators and have had access to data 

on many different cases. I talk to them often. If administrators were compelled to produce 

class action notice response rate data, and were called to testify, no experienced and credible 

administrator could, with any honesty, claim that 100 emails, let alone 100 exposures to some

other form of “electronic means” or “other appropriate means,” would generate anywhere 

close to the response that 100 physical mailings of a notice and claim form still achieves. The 

gold standard for effectiveness and highest response in class actions remains physical first 

class mail.

High Notice Cost is not a Problem that Needs Curing

As the notes state, the current 23(c)(2) rule sketch is premised in part on reducing costs. 

However, there is no real controversy over notice costing too much. Class members are not 

clamoring for attorneys to spend less effort and money to reach them. There is no influx of 

court decisions rejecting notice plans for being too expensive. As discussed below, there is

immense downward movement on notice cost driven mainly by various disincentives discussed 

below, and by vendors willing to bid notice down, in order to win assignments and grab market 

share. As a result, the effectiveness of notice is racing downwards, and with it, response rates. 

A class will bind people’s claims to the success of a particular set of plaintiffs’ attorneys even if 

they lose, and a settlement will release all class members’ claims even if they don’t get a 

payment, so there should be enough money to properly reach and inform the class—as the FJC 

Notice Checklist advises. It is circular logic to suggest, when proposing a settlement, that the 

settlement does not afford mailed notice, or any truly high-reaching notice to the mass 

audience sought to be bound, when the reason to send any such notice is to allow the class to 

weigh in on whether the settlement is sufficient.

A mass-communications layperson can look at the cost of notice with wishful thinking—wishful 

that notice could be just as effective if a million dollars were removed from the budget. But just 

as removing a million dollars from a $1.2 million engineering budget will likely result in a 

significantly less safe building, dramatically reducing notice budgets will greatly reduce 

effectiveness.

Embarrassingly Low Response is the Problem that Needs Curing

The number of cases in which courts are faced with results from notice where a tiny percentage 

of class members submit claims, and where a much greater total amount will be paid to the 

lawyers, have been increasing and giving courts fits. This is a ‘public relations’ problem for 

courts, and a real-world problem for class members. It erodes confidence in class actions and 

in courts generally.
4 | Page

Pitifully low response is the real class action problem to cure, and now is not the time to 

encourage non-use of the most responsive tool that notifications have: first class mail. If this 

rule change is adopted, attorneys will propose to avoid first class mail in most if not all 

situations for the reasons discussed in this report. There are certain to be more news reports of 

cases where few people benefitted from a settlement while available mailing addresses went 

unused. The class action device and the courts will suffer as a result. 

Administrators commonly withhold response rates to notices from reports they submit to 

courts. Submissions often fail to offer: the percentage of email notices sent that were opened; 

the percentage of email notices that bounced back as undeliverable; the percentage of internet 

banner impressions that were clicked on; and the number of claims submitted from mailings as 

compared to emails, publication notices, and internet banners. Inquisitive courts are faced 

with re-notifying classes as a result of orchestrated efforts to “control” the response to a 

modest settlement.

The Notion that Electronic Ads Constitute Individual Notice

Perhaps the even greater risk resulting from the rule sketch and notes—greater than expressly 

allowing email in lieu of a physical mailing address when available—is the notion that an 

electronic communication which is not individualized might well be pitched to courts as being 

an acceptable form of individual notice nonetheless. 

The notes deliberately distinguish between email and online notice generally (“...it may often be 

true that online notice, most often by email, is the most effective...”). This creates a dangerous 

premise where courts might believe that a social media posting, or an internet banner on a 

visited page, can be deemed individualized. This is a frightening thought in that such activities 

are, in reality, new targeted forms of “publication” or “advertising,” which it is well-known are 

rarely clicked (an average of 0.6% of the time), such that a scant fraction ever sees a real notice. 

The rule sketch itself allows one to interpret non-individualized notice as being acceptable 

individualized notice, by vaguely referring to email instead as “electronic means,” and also then 

including “other appropriate means” to a list that includes U.S. mail as acceptable forms of 

“individual notice.”2

The Notice Campaign Bidding Wars

2 Note: The Rule sketch does not use the phrase “First Class Mail.” The phrase “United States Mail” allows the 

interpretation that one could employ far cheaper “Bulk Rate Mail,” which, unlike First Class Mail, the Postal Service 

does not forward to those who have moved.
5 | Page

Rule 23(c)(2) has long required the “best practicable” notice effort. However, attorneys 

responsible for notice at particular stages of class actions,3 have increasingly “put out for bid” 

the administration of the class action, including leaving how much notice up to the suggestions 

of each bidder. As a result, bidders are incented to propose the least notice that their “expert”

is willing to sign his/her name to. This is easy for someone who has never sworn to the 

importance of high-reaching notice or criticized low-reaching notice. Knowing a level of notice 

that lost a bidder the job in a prior case leads bidders to reduce his/her proposal further at the 

next opportunity. Sometimes counsel may prefer a certain bidder only if costs are reduced 

further, and the bidder will offer that its expert will willingly ‘stand down,’ i.e., not make any 

supporting or adverse statement about the notice effort if the budget is less than the bidder’s 

“expert” was willing to publicly stand behind. In those cases, others without appropriate 

credentials might sign supporting statements in place of the recognized expert employed, but 

silenced, by that vendor. Courts are routinely not made aware of this.

These bidders now regularly include many vendors who do not employ notice experts, nor any 

planners with sufficient training in media or any real knowledge of proper audience

measurement techniques, especially regarding more complex digital media measurement. 

These unscrupulous vendors have created unrealistic expectations that for very low costs, one 

can reach high percentages of mass audiences using bargain-basement electronic notice.

Inflated Audiences for Internet Media

It is increasingly common to see proposals in which a vendor has proposed, in lieu of physical 

mailings, a campaign promising to reach outrageous percentages of mass audiences using 

banner ads on various internet sites. While vendors purport such efforts will reach 70% or 

more of national audiences for sometimes $100,000 or less, in reality, such efforts when tested 

commonly reach 20% or less. Beyond that, these programs often rely on exposure to 15-word 

banners that are known to be clicked on average 0.6% of time or less. As a result, after an 

inexpensive electronic banner-reliant notice effort, it is entirely knowable that a tiny fraction of 

those exposed to such banners will have been exposed to a Rule 23-compliant notice, because 

a banner cannot disclose the legal rights that Rule 23 requires practitioners to communicate. 

Over-reliance on weak banner ad campaigns is thus very problematic. Unless we are prepared 

to say “you were notified by this banner and shame on you for not clicking on 15 words”—

words which might well have been perceived to be a lawyer solicitation—relying on electronic 

notice as heavily as the rule sketch would permit will be harmful to class actions.

 3 E.g., plaintiffs’ lawyers spending against their own ‘warchest’ when a case is certified, or defendants who have 

reached a claims-made settlement and are funding the settlement notice by agreement.
6 | Page

Many of the administrator vendors who have pitched and won cheap internet banner ad notice 

bids have taken to submitting affidavits in connection with final settlement approval in recent 

years stating, in essence, that low response is typical and expected in such cases. These 

affidavits are typically submitted on behalf of settling parties who are arguing that settlements 

should be approved even though class members are receiving little in actual benefits, often less 

in total than the lawyers’ fees, and with most of the money going to cy pres as a result.

Even more common are “expert” affidavits that do not offer critical metrics such as how many 

addresses were available that were not utilized, the email open and banner click rates, and the 

claims response data. It’s understood that such disclosure might derail settlement approval.

The Lack of Critique of Notice Campaigns

I speak with well-respected experts who report to me the type of faulty notice submissions 

mentioned above. These phone calls are typically accompanied by their exasperation at the 

“ridiculous” promises that low bidders are making about the effectiveness of electronic-only 

media proposals. This to them amounts to unfair competition. Experts calling me include those 

who are well-known to the leading practitioners in class actions. 

However, few if any notice experts are willing to accept an assignment today where one party 

seeks to critique another party’s notice submission. This includes situations where Courts seek 

to retain their own experts. Experts affiliated with claims administrators turn down these 

assignments because they understand that criticism of notice plans may lead to “blackballing”

by defense or plaintiff class action firms. They fear losing a future bid to disseminate notice or 

perform profitable claims processing. The blackballing phenomena has arisen in the last five to 

seven years. Lawyers from both sides of the “v” call me and report that another expert 

referred them to me because that other expert will not accept a critique assignment. 

Leading administrators have informed me of “pressure” not to oppose notice submissions or

appear adverse to leading firms. I have been subjected to intimidation as well, but I have 

always been outspoken, and these troubling issues are too important. 

The result of the current environment is that very little extra-judicial scrutiny is being rendered 

on what could be questionable notice efforts. Without much evidence proffered that is 

contrary to minimal notice submissions, precedents where unaware courts approve such 

programs are increasing, making it easier and easier to adopt and approve future low-reaching 

notice campaigns. With the complexities in electronic media that can make one notice 

campaign “appear” effective while in fact utilize shoddy practices, and with the disincentives 

discussed below, the paucity of outside critique hurts courts.

The Disincentives to Adequate Notice
7 | Page

I see little adversarial process during the most typical notice situations:

Class Certified for Trial. When a class is certified for trial, the burden of notice typically 

falls to plaintiffs’ counsel (in the absence of rare cost-shifting situations). At that point, 

plaintiffs’ lawyers often want the least notice that will be acceptable because they are 

spending their own money without a guarantee of a settlement or judgment. More 

notice does not help class members, many seem to believe, because they are convinced 

of their own veracity as representatives of the interests of the class. Better notice might

prompt opt-outs. Defendants (who legitimately want to achieve finality) do challenge 

weak plaintiff proposals at this stage, but without experts willing to challenge leading 

plaintiffs’ lawyers’ submissions, their arguments are often just that, arguments. Some 

defendants do not push for stronger notice at this stage out of a desire to avoid bad 

publicity from notice that will bring the alleged behavior to customers’ attention. 

Certified and Notified Class Later Settles. When plaintiffs later settle a case where they 

earlier provided notice of the certification, it is very hard to negotiate from defendants a 

more effective notice effort than plaintiffs provided at certification. In this way, when 

money is available and notice is arguably meaningful to class members, plaintiffs often 

can’t then provide the opportunity that they might wish their class members could get.

Notice of Certification and Settlement. When a 23(b)(3) case settles and notice is 

required when none has been issued previously, the notice typically provides opt-out 

rights together with rights to object, and to claim money. On the one hand, plaintiffs

often desire enough claims to make a settlement look good—enough to gain final 

approval, but worry that too many claims will “swamp” a settlement and make the 

average payouts too low, such that it appears the settlement is insufficient. Plaintiffs’ 

incentive depends on the nature of the settlement. In a claims-made settlement, where 

plaintiffs negotiated their fee regardless of the number of claims, they often have little 

voice relative to defendants, who fund the notice and resulting claims, and thus push 

back against strong, high-reaching notice. When there is a claims-made settlement and 

plaintiffs’ fees depend on the total value of claims, they may have negotiated or push 

for very strong notice, but these situations are rarer. 

In my experience, one party strongly advocating that notice reach the greatest practicable 

number of class members is increasingly uncommon. Also, by limiting notice, objections are 

limited, which suits the interests of both settling parties.

The Media Landscape Today

Today, electronic media is a vital mass communications tool. The number of media options and 

outlets are increasing every day. Almost every notice plan can and should utilize these tools. 
8 | Page

The falsity in the promises being made today is that not only will digital efforts be effective

components of a successful notice campaign (true), but that notice efforts can rely almost 

solely on electronic efforts and cost dramatically less than notice plans which reached large 

national audiences in the past (not true). In fact, with more and more splintered media 

consumption, with inflation and rising ad costs, with print publication audiences dropping, with

low-attention paid to many online advertising activities, and with the limited content that 

internet ads convey (absent a viewer clicking to read a real notice), the cost to effectively reach 

high percentages of mass audiences is not dropping. The cost of gaining attention is increasing. 

It is very expensive to effectively reach nationwide audiences.

The Federal Judicial Center’s Notice and Claims Process Checklist

The Federal Judicial Center’s Checklist provides a best-practices resource for courts, and in 2010 

it was ahead of the curve when cautioning against inflated electronic media effectiveness, and 

revealing that when courts approve notice plans and report the “reach,” the median was 87%.

A cautionary tale of the class action notice industry’s “race to the bottom” can be seen in notice 

plans from the influx of the “digital notice panacea” vendors who routinely hype inexpensive

plans as meeting the lowest range identified in the FJC’s study of reach percentages (70-95%) 

despite the 87% median. They routinely sell 70% notice plans as “meeting” the FJC guidance. 

The reach guidance was included in the FJC Checklist because the FJC sought to stop the great 

majority of notice submissions that give courts no information as to how effective a particular 

notice proposal would be at reaching a class. Sadly, the greatest problem class action courts 

face today are false promises of high reach low-cost electronic media proposals, that 

unbeknownst to them, are poorly planned and reach small slices of classes.

The Logic behind First Class Mail’s Responsiveness Advantage over Email

Why are administrators reporting to me that response rates for email notice are significantly 

lower than response rates for first class mailings? Why am I told that response rates from the 

internet banner-reliant efforts are worse than summary notices in print publications (the 

audiences of which are plummeting)? Administrators inform me, consistent with my own 

experience, that they see 15% or significantly greater response rates for physical mailings vs. a 

ceiling of 5-6% or often much less for email. Does this make logical sense? Yes. Physical 

mailings do not have SPAM filters, and by law they are delivered by postal workers into “inboxes.” A mailing that is not responded to immediately is often present and visible in the 

house for future attention. With the volume of email increasing, the volume of advertising mail 

is decreasing, as is the risk of class action notice mail being discarded. The FJC envelope and 

notice design guidelines have helped in this regard as well. Email, on the other hand is subject 

SPAM filters. Dozens of emails arrive daily, if not a hundred for some people, and many emails 

do not really “arrive” because they are captured in SPAM filters.
9 | Page

There are many sources of public information available to update physical mailing addresses 

when class members move, including postal service and credit bureau data. When class 

members change email addresses there are few if any widely used such tools. Unlike most first 

class mail, an email that goes to an outdated address often does not bounce back as 

undeliverable and is not automatically forwarded to the new address.

Stories such as these abound: A leading administrator conveyed that defense counsel—a 

leading firm—had advocated email for a case. After the administrator had done everything 

reasonably possible to ensure email delivery and avoid SPAM filters, an associate (presumably 

not involved in the case) at that firm received an email as part of the notice campaign and 

reported it to the firm IT department. The IT department issued a firm-wide email instructing 

everyone not to open the email because it might be a virus. In another recent matter, counsel 

seeking settlement approval argued that the administrator, if had he testified, would have 

sworn that the 0.3% response rate to email notice was acceptable and typical.4 There was no 

significant critique, and the settlement was approved.

When a class member does not respond immediately to a notice by email, what are the chances 

that at some later date he/she will scroll all the way to the bottom of a cluttered email inbox to 

search for and find an old email notice previously received? Consider your own behavior. Why 

would class members act differently?

Finally, some demographic and socio-economic groups do not use or have access to email and 

electronic media to the extent lawyers and other professionals do. The rule sketch and notes 

may be based on personal habits that attorneys apply to all levels of society. Lawyers or their 

associates perhaps must read all their emails in order to avoid malpractice claims, but average 

class members do not.

Conclusion

In sum, even without a rule endorsing it, email notice has been approved in the past, and I have 

supported appropriate uses. Yes, physical mailings can be botched, and rendered ineffective. 

But when feasible, first class mail is the best, and electronic means are not a replacement. The 

proposed rule would not make notice better, just cheaper. This at a time when response rates 

are already too low. In truth, a perfect storm of unsavory practices has led to false promises for 

cheap electronic notice effectiveness. The rule should not, and need not be changed.

Other Rule 23 Suggestions 

 4 It bears noting that in that case, it would appear that physical mailing addresses were available but were unused.
10 | Page

While concerns about a relaxation of the individual notice requirement is the primary focus of 

this report, other notice issues warrant consideration by the Subcommittee: 

a. As important as it was to for Rule 23(c)(2) to require “plain language” in 2003, it is even

more important to require that a class be adequately reached with a notice. I urge

attention to the decades-long use and reliance upon “reach and frequency” which are

the definitive, objective tools which ensure that mass communication methods are

sufficient, regardless of the means available to provide notice. Without a rule requiring

effective reach of massive audiences, courts are routinely left unaware that significant

percentages of a class may not even get an opportunity to see a notice, despite reach

being readily calculable. While the 2010 FJC Notice and Claims Process Checklist

revealed that courts can always obtain audience measurement calculations if requested,

and observed that in reported decisions—when reach was cited—the median reach was

87%, the greatest untold cause of low response remains low reaching, ineffective notice

campaigns. Some parties still argue that reaching a high percentage of a class is not

required, and courts accept this all too often. With the reach of digital notice campaigns

often erroneously calculated by failure to use the necessary complex metrics, the

importance of requiring a high reach and a careful determination of reach, is all the

more important today;

b. Rule 23(e)(1)(B) could remove the phrase “in a reasonable manner.” This phrase is

commonly used to argue that somehow a lower standard applies to settlement notice

vs. the “best practicable” certification notice standard under 23(c)(2). Compensation is

the thing class members actually want from a class action, so settlement notices are at

least as important to receive as certification notices; and

c. Rule 23(h)(1) could specify that motions for attorneys’ fees be on file prior to the

deadline for objections included in class notices, instead of a common historical practice

of filing such motions after the deadline for objections in the notice has expired. If they

were, courts would avoid re-notification that appellate decisions have compelled in

recent years. I suggest consideration of the lessons of Redman v. Radioshack, Corp., 768

F.3d 622, 637 (7th Cir. 2014), and In re Mercury Interactive Corp. Securities Litigation

618 F.3d 998 (9th Cir. 2010) before approving and issuing notice.

This report is brief for purposes of expediency. I am available to discuss this at the 

Subcommittee’s convenience if it wishes. I have left out specific case citations and examples. I

expect to provide a more detailed report if specific notice-related rule change proposals are 

eventually released by the Advisory Committee for public comment.

Thank you for your consideration of these remarks.
11 | Page

Sincerely,

Todd B. Hilsee

Principal

Distribution (via email):

Ms. Rebecca A. Womeldorf

Secretary of the Committee on Rules of Practice and

Procedure of the Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, D.C. 20544

Rules_Support@ao.uscourts.gov

Hon. David G. Campbell, Chair, Advisory Committee on Civil Rules

David_campbell@azd.uscourts.gov

Rule 23 Subcommittee of the Advisory Committee on Civil Rules

Thurgood Marshall Building

Administrative Office of the United States Courts

One Columbus Circle NE

Washington, DC 20544

Hon. Robert Michael Dow, Jr., Chair of the Rule 23 Subcommittee

Robert_Dow@ilnd.uscourts.gov

Professor Richard L. Marcus, Associate Reporter

marcusr@uchastings.edu

John M. Barkett, Esq., Member

jbarkett@shb.com

Elizabeth J. Cabraser, Esq., Member

ecabraser@lchb.com

Dean Robert H. Klonoff, Member

klonoff@clark.edu
ATTACHMENT 3 
1 | Page

May 24, 2016

To: The Advisory Committee on Civil Rules

of the Judicial Conference of the 

United States, and Members of the 

Rule 23 Subcommittee

by email

Update: Data does not support premise for relaxing 

the Rule 23(c)(2) individual notice requirement 

Dear Committee and Subcommittee Members: 

My letter of March 23, 2016 advised against revising the individual notice requirement in Rule 

23(c)(2).

1 I noted that if claims administrators were compelled to produce data, they would 

reveal that mailed notice outperforms email and dramatically outperforms other “electronic 

notice.” This letter provides data to further inform the committees. 

Data shows that if there is a presumption in favor of first class mail, it is a correct one. 

Regardless, the current rule allows all forms of individual notice, so the revision serves to steer

courts away from mailings. Why?

The Rule 23 Subcommittee notes for the April 14-15, 2016 Advisory Committee meeting state: 

“Since Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), interpreted the 

individual notice requirement for class members in Rule 23(b)(3) class 

actions, many courts read the rule to require notice by first class mail in 

every case. But technological change since 1974 has meant that other 

forms of communication are more reliable and important to many.”

The key phrase (shown with emphasis added in bold) is not accurate. Rather, data and other 

facts show the opposite to be true, and prompt serious questions:

1. On what basis are other methods “more reliable” than first class mail? 

2. Why change a rule that already allows all methods of individual notice? 

3. Why change this rule unless to steer courts away from first class mail?

4. Why steer courts away from first class mail if data shows it to be better?

 

1 The current rule: “the best notice that is practicable under the circumstances, including individual notice to all 

members who can be identified through reasonable effort” is proposed to be changed to: “the best notice that is 

practicable under the circumstances, by United States mail, electronic means or other appropriate means. The 

notice must include individual notice to all members who can be identified through reasonable effort.”
2 | Page

Courts already approve email as Rule 23-compliant individual notice when appropriate. There

is no great controversy where email notice is being rejected by courts when physical mailing 

addresses are not available and email addresses are. The rule change would only encourage 

less effective notice than first class mail—even when physical mailing addresses are available. 

The phrase “electronic notice” in the proposed rule lets internet banner ads masquerade as 

individual notices. Vendors seeking to undercut their competitors are telling lawyers and courts 

that they can target cheap banner ads at individuals and limit the exposure frequency to one 

banner “impression” per class member over the course of an entire notice program. Realize 

that the industry definition of a “viewable” internet banner impression is one where “1/2 of 

the pixels are visible on screen for a minimum of one second.”2 With submissions citing this 

pending rule change, we are already seeing notice proposals that would bind the 99.96% of 

class members who do not click banner notice ads.

3

This “half banner/one second” standard for notice, which would be legitimized by this rule 

change, will de-legitimize our opt-out system. 

Class action response rates are already dropping precipitously, which claims administrator 

affidavits are now revealing. This rule change will embolden parties—and indeed has already 

done so—to avoid physical mailings even when notice would alert people about a product that 

may risk their personal safety. The resulting low claims rates are empowering those advocating 

against class actions altogether—those who cite their futility, e.g., the 2103 Mayer Brown study

and its supporters.

4

New Information and data: 

1. Data now publicly available from MailChimp, the world’s leading email marketing

platform, indicates that only 22.73% of legal industry emails are opened.5

2 Media Rating Council. See http://measurementnow.net/press-release-media-rating-council-updates-viewablead-impression-measurement-guidelines/#.V0BuZJErIvg last visited May 20, 2016. Note: Banners can fit only about 

15-20 sizable words, thus not themselves compliant with Rule 23 content requirements. Only those who click a

banner can see a Rule 23-compliant notice.

3 Data shows that on average 0.04% of banner “impressions” are clicked. http://www.smartinsights.com/internetadvertising/internet-advertising-analytics/display-advertising-clickthrough-rates/attachment/averageclickthrough-rates-for-different-ad-formats-2016/, last visited 4/27/16.

4 Mayer Brown, Do Class Actions Benefit Class Members? An Empirical Analysis of Class Actions, Dec. 2013, 

https://www.mayerbrown.com/files/uploads/Documents/PDFs/2013/December/DoClassActionsBenefitClassMem

bers.pdf, last visited May 19, 2016.

5 Average Email Campaign Stats of MailChimp Customers by Industry, April 4, 2016. 

http://mailchimp.com/resources/research/email-marketing-benchmarks/, last visited April 26, 2016. 
3 | Page

2. The Direct Marketing Association reports the rate that emails are actually opened 

ranges from a low of 7-8% to a high of 23-24%. See Exhibit 1. 

3. Based on public information,6 the Federal Trade Commission (“FTC”) is currently 

undertaking a review of factors that determine notice effectiveness and resulting claims 

rates. I understand they are actively seeking data.

4. The relative weakness of email notice as compared to physical mail is now supported by 

data just recently presented to the FTC by the nation’s oldest claims administrator. That

data, attached as Exhibit 2, shows that physical mailings outstrip email, and far outstrip 

other forms of notice such as internet banners and other forms of publication in terms 

of effectiveness based on response expectations.

5. According to a booklet published by another claims administrator attached as Exhibit 3, 

“Email notices tend to generate a lower claims rate than direct-mail notice” and also 

according to that document, email is less likely to increase the number of claims relative 

to any of the various versions of direct postal mail notices.7

6. According to Google, only 44% of banners typically included in “impression” statistics 

are actually viewable.8 Yes, for 56% of banner impressions, half of the banner is not on 

the screen for a human to see for more than one second. Even for banners “above the 

fold,” which notice vendors often hold out as a tactic to improve reach, Google reveals 

that only 68% are viewable. This Google report is attached as Exhibit 4. 

7. A massive internet advertising fraud is now coming to light. Advertisers have been led 

to believe that an “impression” means that a person—a human viewer—is exposed to 

an electronic communication. But new revelations show that millions of internet 

banner “impressions” purchased for incredibly low prices are seen not by human beings, 

but by robots or are outright fake. The sampling of national news stories highlighted in 

Exhibit 5 are just some of the plentiful, credible, and disturbing reports. For example: 

“The most startling finding: Only 20 percent of the campaign’s “ad 

impressions”—ads that appear on a computer or smartphone screen—

 

6 https://www.regulations.gov/#!documentDetail;D=FTC-2015-0055-0001, last visited April 27, 2016. 

7 “The following are the most common types of e-mail and direct-mail notices and claim forms. They’re listed in 

order of least to most likely to increase the number of claims filed in a settlement: E-mail notice, Single postcard 

summary notice, Full notice and claim form, Full notice and claim form with return envelope, Full notice and claim 

form with postage-paid return envelope, Double postcard notice with tear-away claim form, Double postcard 

notice and postage-prepaid tear-away claim form.” Class Action Settlement Administration for Dummies, KCC 

Special Edition, at page 14.

8 https://think.storage.googleapis.com/images/infographics/5-factors-of-viewability_infographics.pdf, last visited 

April 26, 2016
4 | Page

were even seen by actual people...As an advertiser we were paying for 

eyeballs and thought that we were buying views. But in the digital world, 

you’re just paying for the ad to be served, and there’s no guarantee who 

will see it, or whether a human will see it at all...Increasingly, digital ad 

viewers aren’t human...According to the ANA study, which was conducted 

by the security firm White Ops and is titled The Bot Baseline: Fraud In 

Digital Advertising, fake traffic will cost advertisers $6.3 billion this year.”9

8. Claims administrators who have pitched electronic notice in lieu of available mailings 

have also sworn to courts that extremely low claims rates are now normal. In the 

controversial Duracell battery case, one administrator swore that the median claims 

rate for their notice plans with little or no direct mailed notice was 0.023%.10 In the 

words of a Forbes magazine article pointing to the revelation: 

“For context, the probability of getting a straight flush in a 7-card poker 

hand is slightly higher at 0.0279%. Critics of consumer class actions have 

been saying for years that these cases have abysmal claims rates, but 

plaintiff lawyers — with the assistance of pliant judges — work hard to 

keep anybody from knowing the real results of their work. That’s why this 

filing is so fascinating: For the first time, a consultant with access to the 

real numbers has let us in on the truth.”11

9. Failed notice campaigns that are overly reliant on electronic notice may literally be

leaving class members at risk of their lives. Pollard v. Remington, W.D. Mo., Case No. 

13-00086 highlights the exasperating position courts find themselves in after erroneous 

and exaggerated promises of electronic-reliant notice fall to earth. Notice to a class of 

owners of 7.5 to 7.8 million guns was purported to reach 73% of the class,

12 yet only

2,327 people submitted a claim for repair of allegedly defective triggers claimed to have 

the potential to randomly fire without being touched. The Court wrote: 

“The Court cannot conceive that an owner of an allegedly defective 

firearm would not seek the remedy being provided pursuant to the 

 

9

 BLOOMBERG BUSINESSWEEK, How Much of Your Audience is Fake? Marketers thought the Web would allow 

perfectly targeted ads. Hasn’t worked out that way, September 25, 2015. 

http://www.bloomberg.com/features/2015-click-fraud/, last visited April 28, 2016.

10 Declaration of Deborah Mccomb Re Settlement Claims, Poertner v. Gillette, M.D. Fla., Case No. 12-00803, ECF 

No. 156, April 22, 2014.

11 FORBES MAGAZINE, Odds of a Payoff in Consumer Class Action? Less than a Straight Flush, May 8, 2014.

12 Declaration of Steven Weisbrot, Esq., on Adequacy Notice Plan (stet), Pollard v. Remington Arms Co., Case No. 

13-00086, M.D. Mo., ECF No. 112, Feb. 9, 2015.
5 | Page

Settlement Agreement. Thus, this low response rate demonstrates the 

notice process has not been effective.”13

More data should be captured and studied before making a rule change of this magnitude, 

especially before acting on presumptions contrary to data known to claims administrators.

The systemic problems I wrote about in March are very real. Since then, a leading notice 

professional made an astounding revelation to me: A lawyer in settlement discussions called to 

request a bid on administration. It was explained that a physical mailing list would be provided; 

one that was comprehensive. The parties sought a vendor who would research and develop an 

email list, and then, not use the physical mailing list but instead send only emails, and sign an 

affidavit stating such method was better. This notice professional, knowing this would be 

counter to best practices, and counter to ethics, declined to participate. But others will. Such 

requesters know that claims rates will be lower. But that, it seems, is why they want it. Too 

many people asking for a share reduces pro rata payments making a settlement look 

insufficient. The disincentives that prompt these motivations must be cured; we should not 

instead weaken the backbone of class action legitimacy. 

Numerous notice professionals tell me they have assessed false promises that unscrupulous 

and untrained vendors have been pitching. But credible notice professionals may speak out 

only at their own peril. They have been told outright that major firms will not work with them if 

they publicly oppose notice plans. They face pressure to dial-back effective notice proposals to 

compete with falsely-effective inexpensive bids from affiants who are untrained in mass 

communications. Thus, despite the rule requiring “best practicable” notice, courts are too 

often presented with the least notice a vendor is willing to sign off on if awarded the contract 

to disseminate notice and administer the case. We should not compound the problems in the 

notice system by making this unnecessary and counter-productive rule change. 

I understand a desire to keep pace with technology. A legitimate concern about expense is 

appropriate. Less expense can benefit class members, but not if high percentages of class 

members are left unaware and bound by their silence and inaction. I understand a visceral 

feeling that email use is pervasive. But people other than the homeless will always have 

physical addresses. U.S. mail must be delivered by law. No reasonable person goes to their 

mailbox, grabs the contents and drops it all in the trash without a glance at the envelopes in 

their hands. Not when tax refunds, jury notices, traffic offenses and gifts from grandma might 

be in there. 

 

13 ORDER (1) DEFERRING CONSIDERATION OF JOINT MOTION FOR SETTLEMENT APPROVAL AND MOTION FOR 

ATTORNEY FEES, (2) CANCELLING FINAL APPROVAL HEARING, AND (3) DIRECTING PARTIES TO PROVIDE 

SUPPLEMENTAL BRIEFING, Pollard v. Remington Arms Co., Case No. 13-00086, M.D. Mo., ECF No. 112, Dec. 8, 

2015. 
6 | Page

The same cannot be said about email. Knowable statistics can be given to courts. Will parties 

happily reveal that 80% of their class never opened an email notice when standing in front of a 

court at a fairness hearing? That most of the so-called “reach” may have been fake or viewed 

by robots? That 0.04% of the human viewers clicked the banner? 

In truth, the type of low-priced electronic-reliant notice plan that has driven this proposed rule 

too far down the tracks is today’s “snake-oil.” These cheap plans are indeed too good to be 

true. Industry research shows the cost of gaining attention has dramatically increased.

14

Please consider this information with the sincere intentions I bring to this process as a neutral 

notice expert. I have no interest in making notice more expensive than it needs to be. I’ve 

simply spent my career helping to improve notice and I just want the class action to remain an 

effective device for parties and class members, and I want our courts to be respected for 

overseeing a fair process.

Thank you for your consideration of these remarks.

Sincerely,

Todd B. Hilsee

Principal

14 The Rising Cost of Consumer Attention: Why You Should Care, and What You Can Do about It, Thales S. Teixeira, 

HARVARD BUSINESS REVIEW, working paper 14-055, Jan. 17, 2014. “The cost of gaining attention has increased 

dramatically (seven- to nine-fold) in the last two decades.” 
7 | Page

Distribution (via email): 

Ms. Rebecca A. Womeldorf

Secretary of the Committee on Rules of Practice and

Procedure of the Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, D.C. 20544

Rules_Support@ao.uscourts.gov

Hon. David G. Campbell, Chair, Advisory Committee on Civil Rules

David_campbell@azd.uscourts.gov

Rule 23 Subcommittee of the Advisory Committee on Civil Rules

Thurgood Marshall Building

Administrative Office of the United States Courts

One Columbus Circle NE

Washington, DC 20544

Hon. Robert Michael Dow, Jr., Chair of the Rule 23 Subcommittee

Robert_Dow@ilnd.uscourts.gov

Professor Richard L. Marcus, Associate Reporter

marcusr@uchastings.edu

John M. Barkett, Esq., Member

jbarkett@shb.com

Elizabeth J. Cabraser, Esq., Member

ecabraser@lchb.com

Dean Robert H. Klonoff, Member

klonoff@lclark.edu

 
EXHIBIT 1


Figure 3: Response by Selected Media 

Telephone 

Mobile* 1

0.2% 

Paid search* 1

0.1% 

Internet display* I 

I 0.02% 

Social media* 

Email* 

Direct Mail 

I 0.1% 

0.1% 

I o.1%

0.0% 

9-10%

: Prospect 

• House/Total

3.7% 

2.0% 4.0% 6.0 0 8.0% 10.0% 

2015 Response Rate Benchmark Study, OMA & Demond Metric, March 2015 

Note: Response rote for telephone was graphed using the midpoint of the range. 

"'CTR ;,c Conversion rate 

·C 2015 Demand tvletric Research Corporation. All Rights Reserved. J� Jli. .� 
Chc1pter Highlight.s 

• Open rates ranged from a low of 7-8% * for emails sent to 

prospect lists to drive traffic. Ironically, emails sent to house lists 

to drive traffic enjoyed the highest open rate at 23-24%. 

• Click rates were lowest for lead generation emails sent to 

prospect lists (3-4%) and highest for B-to-B emails sent to 

house lists ( 17-1 8%). 

• Conversion rates were lowest for 8-to-C, B-to-B and lead gen 

emails sent to prospect lists ( 1-1. 9%) and highest for email 

campaigns to drive traffic sent to house lists (4-4.9%). 

• For 36% of respondents, the primary purpose of emails sent 

to house lists was to make a direct sale. For emails sent to 

prospect lists, 62% soy the main purpose was lead generation. 

• Email usage for marketing campaigns equals or exceeds 

80% for most industries. Email usage is lower for Consumer 

Packaged Goods (63%), Education (70%), Financial 

Services/Insurance (75%), Healthcare/Pharmaceuticals (79%) 

and Travel/Hospitality (53%). 

• © 2015 Demand Metric Research Corporation. All Rights Reserved. I 27 
EXHIBIT 2
Participation Rates and Types of Notice

Everything Else Being Equal...

0.0%

2.0%

4.0%

6.0%

8.0%

10.0%

12.0%

14.0%

16.0%

Mailed	Notice	

and	Claim	

Form

Mailed	Notice Postcard	

Notice

Email	Notice Billing	Insert Digital	Media Broadcast	

Media

Print	Media

Key	Takeaways

Participation	 Rates	are	

Generalizations

Known	 Class	 Members:	Direct	

Notice	With	a	Claim	Form	is	more	

expensive	than	the	alternatives,	

but	generally	has	higher	class	

member	 participation.
EXHIBIT 3


I~ 

14 

E-mail notices tend to generate a lower claims rate than 

direct-mail notices. But not all direct-mail notices are 

created equal - many types of notice and claim form 

designs exist, and they all tend to have different claims 

rates. The claims rates of the varying types of notice 

and claim form designs tend to be most impacted by 

their distribution methods, their ability to be easily 

understood by recipients, and the ease with which 

class members can rile the necessary forms and take 

any required action. 

The following are the most common types of e-mail and 

direct-mail notices and claim forms. They're listed in 

order of least to most likely to Increase the number of 

claims flied in a settlement. 

,,,, E-mail notice 

,,,, Single postcard summary notice 

,,,, Full notice and claim form 

,,,, Full notice and claim form with return envelope 

,,,. Full notice and claim form with postage-paid 

return envelope 

,,,, Double postcard notice with tear-away claim form 

,,,, Double postcard notice and postage-prepaid tearaway claim form 

When thinking about the potential claims rate, 

be sure to think about factors other than Just 

the amount of the monetary award. Your 

claims administrator should review the settlement details and identify the major factors 

that impact the claims rate In your settlement. 

15 

For example, in an employment context, consider 

whether a particular class member Is a current, past, 

or seasonal employee. In the consumer context, consider whether the product was a luxury item with a 

high price tag or whether the lawsuit involved a highprofile product, such as a common, everyday food Item. 

Was there a safety hazard? Was this a well-publicized 

settlement? 

Calculatin9 Claims Rates 

While claims rates are an important factor in settlement planning, be sure to focus not only on the individuals making the claims but also on the percentage of 

the class fund that those claims represent. It'll be 

pretty straightforward to allocate the class member 

awards If the settlement Is set up on a per capita basis 

with a set value per claimant or a simple pro rata share 

with a value that varies in proportion to an easily calculated factor. 

The calculation process becomes a lot more 

complex when the allocations vary based on 

considerations such as the length of time a 

customer received a service or the amount of 

time an employee worked in a particular position. Talk to your claims administrator about 

the complexity of your settlement, and be sure 

you understand what the class member allocations are based on. 
EXHIBIT 4

EXHIBIT 5 
Examples of News Stories - Fraud of Overstated Internet Banner Reach Statistics

Within the last year, a deluge of national and advertising industry press is revealing a massive $6.3 

billion to $8.2 billion internet advertising fraud. Revelations include that millions of internet 

banner “impressions” that advertisers have been buying for incredibly low prices are seen, not by 

human beings, but by robots or are outright fake. The majority are not “viewable” as that term is 

defined:

1

The Alleged $7.5 billion Fraud in Online Advertising. MOZ, June 22, 2015. “This is the biggest 

advertising story of the decade, and it’s being buried...the three main allegations...half or more of 

the paid online display advertisements that ad networks, media buyers, and ad agencies have 

knowingly been selling to clients over the years have never appeared in front of live human beings. 

In another words, an "impression" occurs whenever one machine (an ad network) answers a 

request from another machine (a browser)... Just in case it's not obvious: Human beings and 

human eyeballs have nothing to do with it. If your advertising data states that a display ad 

campaign had 500,000 impressions, then that means that the ad network served a browser 500,000 

times—and nothing more.”2

Is Ad Fraud Even Worse Than You Thought? Bloomberg Businessweek Seems to Think So. 

Ad Age, September 25, 2015. “Just how much of a problem is ad fraud? If you’re a regular reader 

of Ad Age, you know it’s a big problem—though just how big depends on lots of variables, 

including specific digital agencies, ad-tech vendors and publishers a given marketer chooses to 

work with.”3

How Much of Your Audience is Fake? Marketers thought the Web would allow perfectly 

targeted ads. Hasn’t worked out that way. Bloomberg Businessweek, September 25, 2015. 

“The most startling finding: Only 20 percent of the campaign’s “ad impressions”—ads that 

appear on a computer or smartphone screen—were even seen by actual people...As an advertiser 

we were paying for eyeballs and thought that we were buying views. But in the digital world, 

you’re just paying for the ad to be served, and there’s no guarantee who will see it, or whether a 

human will see it at all...Increasingly, digital ad viewers aren’t human. A study done last year in 

conjunction with the Association of National Advertisers embedded billions of digital ads with 

code designed to determine who or what was seeing them. Eleven percent of display ads and 

almost a quarter of video ads were “viewed” by software, not people. According to the ANA 

study, which was conducted by the security firm White Ops and is titled The Bot Baseline: Fraud 

In Digital Advertising, fake traffic will cost advertisers $6.3 billion this year.”4

 1 A display ad is considered viewable when 50% of an ad’s pixels are in view on the screen for a minimum of one 

second, as defined by the Media Ratings Council.

2 https://moz.com/blog/online-advertising-fraud, last visited April 28, 2016.

3 http://adage.com/article/the-media-guy/ad-fraud-worse-thought/300545/, last visited April 28, 2016. 

4 http://www.bloomberg.com/features/2015-click-fraud/, last visited April 28, 2016. 
What’s Being Done to Rein in $7 Billion in Ad Fraud. AdWeek, Feb. 21, 2016. “Long a dirty 

little secret of the digital media business, the topic of ad fraud has been thrust front and center in 

discussions among agency executives, advertisers and publishers over the last three years. Bot 

traffic, or nonhuman digital traffic, is at its highest ever, and recent projections from the 

Association of National Advertisers have more than $7 billion in advertising investment 

wasted.”5

Inside Yahoo’s troubled advertising business. CNBC, Jan. 7, 2016. “The company's ad 

business, which brought in $1.15 billion in the second quarter of 2015, is rife with ad fraud, 

multiple sources told CNBC...the company's programmatic video ad platform generates mostly 

fraudulent ad traffic, and otherwise does not work as promised. The platform is largely powered 

by BrightRoll, which was acquired by Yahoo in November 2014.... discovered 30 to 70 percent of 

its ads were not running in areas where Yahoo was claiming they were. ...Another source said 

that it found BrightRoll's traffic was mostly coming from data centers' IP addresses, suggesting 

most of the ad views were nonhuman and fraudulent.”6

Ad Fraud, Pirated Content, Malvertising and Ad Blocking Are Costing $8.2 Billion a Year, 

IAB says. Ad Age, Dec. 1, 2015. “More than half of the money lost each year derives from 

‘non-human traffic’ -- fake advertising impressions that advertisers pay for but don't represent 

contact with real consumers, the [Interactive Advertising Bureau] said in the report, which was 

conducted for the group by Ernst & Young.”7

No More Ads. Wall Street Journal, February, 17, 2015. “As if the online ad industry didn’t have 

enough thorny issues to deal with–from fraud to ads nobody can see–here come the ad blockers. 

Reams of people, mainly young and tech-savvy folks, the kinds of people lots of advertisers want 

to reach, are downloading and utilizing ad blocking software–or tools that keep online ads from 

ever appearing on a person’s screen. Ad blocking is on the rise, and the topic has been thrust to 

the top of the list by online ad industry leaders, reports Ad Age. In the short term, this creates 

another worry for brands, who now have to fret about whether they are paying for ads that are 

getting blocked. But in the long term, the bigger worry for Web publishing is when does the 

cumulative effect of what seems like a mounting list of problems cause more advertisers to say, 

“You know what? The Internet just isn’t ready for prime time, or my ad budgets.”8

5 http://www.adweek.com/news/advertising-branding/whats-being-done-rein-7-billion-ad-fraud-169743, last visited 

April 28, 2016. 

6 http://www.cnbc.com/2016/01/07/yahoos-troubled-advertising-business.html, last visited April 28, 2016. 

7 http://adage.com/article/digital/iab-puts-8-2-billion-price-tag-ad-fraud-report/301545/, last visited April 28, 2016. 

8 http://blogs.wsj.com/cmo/2015/02/17/cmo-today-apples-watch-is-coming-soon/, last visited April 28, 2016. 
ATTACHMENT 4 
tinitrd ~rates ~enatr 

The Honorable Edith Ramirez 

Chairwoman 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, D.C. 20530 

Dear Chairwoman Ramirez, 

WASHINGTON, DC 20510 

July 11, 2016 

We write to you regarding digital advertising fraud and the associated negative economic impact 

on consumers and advertisers. 

The landscape of advertisi11g in this country has changed considerably. As media consumption 

has expanded to an ever-larger array of platforms and sources, advertisers have been forced to 

rethink their marketing efforts to reach consumers across a broader media landscape. These 

developments have prompted tremendous innovation in online marketing. At the same time, 

today's media ecosystem has in some ways reduced market transparency. Internet advertising 

revenues in 2015 were estimated to have totaled $59.6 billion, 1

yet many of the purchased online 

advertisements are not reaching their intended audience. 

The infrastructure to accommodate the rise of digital advertising has grown as sophisticated as 

our financial markets. A dense network of intermediaries has arisen in order to accommodate the 

growing automation of ad-buying and selling, much like stock exchanges. Within these intricate 

exchanges, the real-time bidding for advertising content depends heavily on the recorded 

consumer traffic on a given platfonn. 

Much like a stock, the value of an ad impression is highly contingent on measured demand. 

However, the problem with relying on ad "clicks" or ''views" to measure that value is that recent 

studies have shown this data is frequently inaccurate.2 According to one study, between 88 and 

98 percent of all ad-clicks on major advertising platforms such as Google, Yahoo, Linkedln, and 

Facebook in a given seven day period were not executed by human beings, but rather by 

computer-automated programs commonly referred to as "botnets" or "bots."3 These programs 

allow hackers to seize control of multiple computers remotely, providing them access to personal 

information as well as the ability to remotely install malware to engage in advertising fraud, 

1 See Sarah Sluis, !AB Report: Digital Advertising ·s $/0 Billion Growth Propelled By Mobile (April 21 , 2016, 3:20pm), 

hi Ip:.' aJt·:wlwn:zc.:r.corrV011 li nc.:-<1,h·,:rti-0ug/iab-rcpon-digilal-:id, en i~rnc;;- I (J. hi IJ ion-:!.l'O\\ th-pm11l'l lc.:d-h.v-n11ibi le!. 

2 See Ben Elgin, Michael Riley, David Kocieniewski, Joshua Brustein. The Fake Traffic Schemes That Are Rolling the !nternel 

(October 20, 2015), llJJJ? J \11111 .hl,iornbc•rg.., , >111.' 1i.·,11tm·s!~\) 15-dkl-.-fraud.

1

. 

, See Adrian Neal, Quantifying Online Advertising Fraud: Ad-Click Bots vs Humans (January, 2015), hltp:/.,\1\ CvrJhi,,l'hmn.cornhl,,w11l1>11<lsl( l\ lbrd r l io(. 'hron {2tMnt i t\·in~-( )nlin,-1\,h.,:ni,i llJb: Fraud RcvorL.PJlf. 
entirely unbeknownst to the computer's tme owner.4 The ad fraud market has scaled to such an 

extent that it has attracted participation by organized crime, with a recent report indicating that 

by 2025 ad fraud could represent the second largest revenue source for organized crime groups 

after drug tratlicking.5 

Bots plague the digital advertising space by creating fake consumer traffic, artificially driving up 

the cost of advertising fo the same way human fraudsters can manipulate the price of a stock by 

crea1ing artificial trading volume. In each case, markets highly sensitive ro demand si!:,rnals are 

manipulated. These bots range in sophistication. While "basic" bots can oniy mimic human 

'·;;licks" on an adve11isement, so-called "humanoid" bots can mimic human mouse touch 

movements with such precision that deep behavioral analysis is required to detect them.6 Many 

of these bots are advanced enough to analyze consumer web activity in order to reUtrget 

advertisements based on individual browsing preferences. 

A comprehensive study conducted by White Ops and the Association of National Advertisers 

estimates that this market manipulation scheme will cost advertisers over $7.2 billion in the next 

year alone. 7 Additionally, it is anticipated that as the budget for mobile advertis11:1g grows, so 

will the incidence of bot fraud in mobile advertising, which already accounts for 30 percent of 

annual digital advertising revenue. 6 

The potential for revenue leakage is so great that our nation's leading advertisees and platforms 

are already working on new systems t<J combat these highly evolved computer programs. In 

February 2014, Google bought spider.lo. a company focused on identifyirtg digital ad fraud. 9 In 

May 2015, the Trustworthy Accountability Group (TAG), an industry group created spedfical1y 

to stem advet1ising fraud, rolled out a "fraud Threat List," through which inembers 1,vill disclose 

third party vendors promulgating fraudulent consumer traft"ic. 10 White lhesc developments are 

significant, it remains to be seen whether voluntary, market-based oversight is sufficient to 

protect consumers and advertisers from digital advertising fraud. And in the interim, consumer 

confidence in digital advertising markets has eroded, as evidenced by user adoption of ad 

blocking tools. 11 

" Sec The FcC.-crnl Bureao of hwc.._s.i:igation, Bntnes f(}}: fFhat J'J,ey Are and How to ,hvid Them (June 6, 2-013. 7:-00!lm) 

hllrh: . Wt. w. ;h1c£_01 11c1h. LC\\~ bh~~I 111 born,<.»!1lJ:illmt-1:w\ ·H'-'·amJ:Jill\):;j<>-,\\,1!J-1h..::r .. 

" Patrkk. Kulp, Ad Fraud C' (mid Bec6tW! /he Second Bigge.sr Organi::ed Crime E11terprise Behfnd the Drug Tradi {h.mc 9, 2016). 

'11 t'· · m,1o'.'1ahk r.Q.il\ _2.'.) l .h Oi, I/:} 1-): !i-.Lu_1!:;_•rg;m,i,1eJ:r_::iI';r.-1"P I l t_.-_11 \I\ 1)11/ IJl t. i Sc~ supra note J, m 4. 7 Sec- Assodn(ion ofNatimml Advct1lscrs. The Bot !Jawdine: Fraud in Digiltd Advertising ('.WI 6), 

hi;p ";1J: 0;rn11. net ..:nth..',!l->.'1\:.':;~. JJ·}o!hw,J:l.illi> 

ii Sec !AJ:l and Pric-:1rntcrhvuseCoopers. !AB fnlr!!w!f Advetlis!ng Revenue Reporl. 2Dl 5 Haff !'ear Results {Cktvber, 2015} 

http::: !,uv ·"" 1,. j.i\h. \.;:1_11 •u1-en:11tJ.iJ.ill.l\l,_1J<:!H 1 :i In J.>.\..U.t11k::i,;,._.;..,1,~·:u::ill1\LI.(,;:, \'.l!n.;,,.J~~~l.)'_~o~.5. r,tc ~ Sec Alex Krmimwitz. lllside G,)f}g/!! 's Secret /Far agaim:t Ad Fraud (Moy l:8. 2015). hHJL~x .. ,lill;,\e<.11n.,11Jick did1;:]·1!),'>i,;!~:. 

g_, ·, g_l .,:-,~:,s,,\;~\~,1 ;~r :~d;:;frn11J 29Stt j ;?, 

:; See The Trustw,ortr.y Accountability Group, Trusf\H11·r'1:_r tlccomt!abfliry Group (TAGJ and Digital Ad Leaders Anm.'Jwi,_'V! Nev,· 

Prog1·om /0 B!in:k Fraudufr:m Dalo Cmtcr Traffic {July 21. 2015) lli.ll;;; · -~ \~ ;,1 .lil'-'h1Ji_!l,Jl~\)''2::<lCJJ-(J!:::illlflJ!;!t'S.\'..::ic~:)! ·['i':Jbn1m· 

;, 1-_t,!,,, ·).,.: 1,~mj !J_!_q\1-<l,1t.1·_4·,:1,i,; ... J,:J [l_i_~: ... 

11 Tim Baysinger. Tlw On!me lnd11.flt'.v is Losi.!g $8 Bi!!irm a Yvar, and Ad Blocking Ji rhe lmsl of Its /,/,'&,•ies (Dec. L 2015) 

:,\ \\" <s0.',,.£d .. t;\_!il n,:1y, .i:!2_±1 tb1113:!JnJ[ldl.tl,;· 11"" ·onij11~-i,t1JhJ),.l_Q.::k,,;,i)l£.-S;J.!'.lliill~.gtf-J6ti.3/W, ("Thi; !AB cmisidcrs !he 

adoption ,;Jf ad blockers ltl be n sk!e cfftct of the spread nf nv11ici,1us sof:warc. or malware, ,\hid! (VS\$ a total of SI.I bllhon in 

lost dollar5.") 
The cost of pervasive fraud in the digital advertising space will ultimately be paid by the 

American consumer in the form of higher prices for goods and services. Just as federal 

regulation has evolved to keep pace with the ever-growing sophistication of our financial 

markets, so must oversight of the digital advertising space. To this end, we respectfully request 

that the Federal Trade Commission (FTC) respond to the following questions: 

1. As noted above, digital advertising fraud takes many forms, including through botnets 

and malware. Is the FTC observing a trend that favors one particular type of advertising 

fraud over another? If so, what factors are leading to the prevalence of that particular 

type of fraud? 

2. What is the projected economic impact of this degree of data and revenue leakage 

amongst media owners or publishers? 

3. What steps is the FTC taking to protect consumer data and mitigate fraud within the 

digital advertising industry? What regulatory agency currently provides oversight of 

mobile advertising platforms? 

4. What steps can be taken to reform opaque advertising exchanges? 

5. What can be done to more closely align the incentives of ad tech companies with 

publishers, advertisers and consumers? 

6. To the extent that criminal organizations are involved in perpetuating digital advertising 

fraud, how is the FTC coordinating with both law enforcement ( e.g., the Department of 

Homeland Security or the Federal Bureau of Investigation) and the private sector to 

formulate an appropriate response? 

Thank you for your timely attention to these issues. 

Mark R. Warner 

United States Senator 

Sincerely, 

Charles E. Schumer 

United States Senator 
ATTACHMENT 5 
Expert blasts proposed Remington Rifle settlement

http://www.cnbc.com/2016/07/31/expert-blasts-proposed-remington-rifle-settlement.html[8/3/2016 6:39:28 AM]

Expert blasts proposed Remington

Rifle settlement

Scott Cohn | @ScottCohnTV

Sunday, 31 Jul 2016 | 9:46 PM ET

Daniel Acker | Bloomberg | Getty Images

A bolt action rifle sits on display in the Remington Arms Co. LLC booth on the exhibition floor of the

144th National Rifle Association (NRA) Annual Meetings and Exhibits on April 11, 2015.

A proposed plan to replace the triggers in millions of allegedly defective

Remington rifles is "designed to fail," a leading expert on class action

settlements said.

Philadelphia-based consultant Todd Hilsee said the proposal has been

crafted by the company and plaintiffs' attorneys largely to address

"Remington's public relations concerns" instead of properly notifying gun

owners that there may be a problem.

The allegations in a 30-page letter from Hilsee, who helped write the

federal court rules on notifying victims in class action cases, could further

threaten a tenuous settlement agreement involving Remington's popular

Model 700 bolt-action rifle, which CNBC investigated in a 2010

documentary. Dozens of lawsuits have alleged that for decades,

Remington has covered up a deadly design defect that allows the guns to

fire without the trigger being pulled, resulting in hundreds of injuries and at

least two dozen deaths.

Remington has denied the allegations and continues to maintain that the

guns are safe. Nonetheless, the company agreed in 2014 to the landmark

settlement covering some 7.5 million rifles including the Model 700 and a

REMINGTON UNDER FIRE

  PRO WATCHLIS
Expert blasts proposed Remington Rifle settlement

http://www.cnbc.com/2016/07/31/expert-blasts-proposed-remington-rifle-settlement.html[8/3/2016 6:39:28 AM]

dozen other firearms with similar designs. At the time, the company said it

was agreeing to the settlement in order to avoid protracted litigation.

In his scathing letter to the judge overseeing the case, Hilsee wrote that

the settlement—and what he called an "inadequate" plan to notify the

public—risked leaving millions of allegedly defective guns in the public's

hands, with little or no recourse left for accident victims.

"The notice as written reduces safety concerns about the guns, which

would have caused fewer people to seek replacement, less money being

spent by Remington, and fewer potential deaths and injuries being

prevented," Hilsee wrote.

The letter came on the eve of a key hearing Tuesday in Kansas City to

consider a new notification plan developed by Remington and plaintiffs'

attorneys. U.S. District Judge Ortrie Smith ruled last December that their

original plan was inadequate because only around 2,300 gun owners had

filed claims.

Hilsee said the new plan was no better than the first one, and urged the

judge to send the parties back to the drawing board yet again. Otherwise,

he wrote, "I'm afraid the Court and Class will get stung."

Attorneys for Remington did not respond to multiple e-mails over the

weekend seeking a comment.

Hilsee reserved some of his harshest criticism for plaintiffs' attorneys, who,

he wrote, "were appointed to represent fathers and mothers of kids" killed

in Remington rifle accidents. Yet, he said, the attorneys agreed to a

"defective" plan to notify the public. Under the proposed settlement

agreement, the attorneys stand to collect $12.5 million in fees regardless

of how many gun owners get their triggers replaced.

Hilsee also accused the plaintiffs' attorneys of squandering multiple

opportunities to publicize the trigger replacement offer. He said one such

opportunity occurred in December, when CNBC presented a follow-up

investigation on the Remington rifles and the proposed settlement. Hilsee

said the report was "the proverbial 'home run' of publicity for a settlement,"

Remington Under Fire: The

Reckoning 

Tuesday 8 Dec 2015 | 4:45 AM ET|11:28
Expert blasts proposed Remington Rifle settlement

http://www.cnbc.com/2016/07/31/expert-blasts-proposed-remington-rifle-settlement.html[8/3/2016 6:39:28 AM]

yet the plaintiffs' attorneys declined to comment for the story.

Hilsee wrote that while it was one thing for Remington to continue maintain

its guns are safe, "It's quite another thing for Class Counsel to not

comment, when speaking up would serve Class members' interests."

A lead attorney for the plaintiffs spoke up in response to Hilsee's letter.

"His letter frightens me," attorney Mark Lanier said in an e-mail. "In effect,

he is saying, 'scuttle the settlement and leave the dangers on the street

because I think notice should be done my way'."

"He clearly hasn't represented hunters, and doesn't understand the

response numbers are not indicative of deficient notice," Lanier writes.

"They are indicative of gun owners who don't want to part with their guns

regardless."

Nonetheless, on orders from Judge Smith, attorneys for both sides

submitted a new notice plan in June. In addition to the direct mail and print

advertising promised in the initial proposal, the new plan includes

commercials on conservative talk radio programs, internet banner ads,

and a social media campaign using Facebook. The parties said they have

engaged a former Obama campaign manager, Jim Messina, to administer

the plan.

But Hilsee said in his letter that the new plan was also doomed to fail,

noting that only half of rifle owners even used Facebook; fewer still would

see the ads. He alleged that the advertising metrics cited in the revised

plan were inflated. And he said the use of a former Obama aide in the

campaign was not what it seemed.

"The implication that past political campaign successes can be repeated

here, is belied by the fact that the 2012 Obama campaign spent $483

million on advertising, mostly on TV," Hilsee wrote.

He said a simpler claims process, more direct language, and more

targeted marketing—including possibly using theNational Rifle Association's

mailing list—could result in a campaign that reaches 95 percent of owners,

which he said is the industry standard in high-stakes class action cases

such as this one.

In a telephone interview, Hilsee said he felt moved to write the letter not

because of any personal involvement in the case or any political concerns

—he said he had never taken a public position on gun control—but

because of much broader legal issues, including proposals in the federal

courts to ease some of the requirements for notifying potential victims in

class action cases.

"The entire class action field is watching this case with astonishment," he

said.

"This is the case where you would turn over every rock to find class
Expert blasts proposed Remington Rifle settlement

http://www.cnbc.com/2016/07/31/expert-blasts-proposed-remington-rifle-settlement.html[8/3/2016 6:39:28 AM]

members," he said. "If we can have this kind of notice in this kind of case,

the hope for good class action notice is lost."

But Lanier said the fact that the case involved guns made it unique. Not

only are many gun owners wary of turning over their rifles, but many also

believe they can remedy the problem on their own by practicing better gun

safety.

"I want every gun fixed," he said. "But a bunch of gun owners are not

going to do it, even if you knock on their door."

Follow CNBC International on Twitter and Facebook.

Scott Cohn

Special Correspondent, CNBC

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Expert blasts proposed Remington Rifle settlement

http://www.cnbc.com/2016/07/31/expert-blasts-proposed-remington-rifle-settlement.html[8/3/2016 6:39:28 AM]

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9/16/2016 Banner Ads Are A Joke In The Real World, But Not In Class­Action Land

http://www.forbes.com/sites/danielfisher/2016/09/15/banner­ads­a­joke­but­not­in­class­action/print/ 1/6

INVESTING 9/15/2016 @ 6:00AM 1,294 views

Banner Ads Are A Joke In The Real World,

But Not In Class­Action Land

Lawyers use questionable Internet marketing

techniques to get notice of class­action settlements out

to their clients, with Internet­level response rates.

Not exactly rifle­shot marketing. (KAREN BLEIER/AFP/Getty Images)

In the mid­1990s, Remington Arms settled a class action lawsuit

over allegedly defective shotgun barrels, issuing $17.5 million in

checks to some 477,000 owners of more than 820,000 12­gauge

shotguns.

Last year the company, now owned by Cerberus Capital

Management and called Remington Outdoor, settled a similar

class action over 7.5 million allegedly defective bolt­action rifles

which, according to a lengthy CNBC documentary, can fire

accidentally even with the safety on. Remington denied liability

but offered a free fix to anyone who responded to the

settlement. After several months the grand total of participants

was 2,327, leading U.S. District Judge Ortrie D. Smith, who is

overseeing the litigation, to erupt: “The Court cannot conceive

IN YOU?

LITTLE

GAMBLER

GOT A

Daniel Fisher Forbes Staff

I cover finance, the law, and how the two interact.
9/16/2016 Banner Ads Are A Joke In The Real World, But Not In Class­Action Land

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that an owner of an allegedly defective firearm would not seek

the remedy being provided pursuant to this Settlement

Agreement.”

What changed in the intervening 20 years? Judge Smith blamed

an ineffective notice process, the forgotten stepchild of the

class­action system. After plaintiff lawyers have filed suit, after

they’ve convinced a judge to declare their case a class action,

and after they’ve negotiated a settlement and their own fees,

they need to tell their clients how to collect their winnings. The

Constitution requires notice, because even if class members

don’t avail themselves of the benefits, they lose their right to

bring claims on their own unless they opt out of a settlement

negotiated on their behalf.

An entire industry has grown around the process of giving

notice to class actions, which depending on the size of the class

can cost $100,000 to millions of dollars. Where consultants

used to consider direct mail the gold standard, however, now a

number of them are touting Internet strategies they say can

reach 80% or more of a target audience at much lower cost.

Some experts are calling foul, saying notice vendors are

overstating the effectiveness of Internet campaigns – the clickthrough rate on banner ads, by some estimates is less than

0.05% — and misleading courts about how many people are

actually being notified of their rights.

Indeed, in a filing in the infamous Duracell case where lawyers

sought $5.3 million in fees and consumers filed for only

$344,000 in benefits, an executive with Kurtzman Carson

Consultants said that after administering hundreds of class

actions, “it is KCC’s experience that consumer class action

settlements with little or no direct mail notice will almost always

have a claims rate of less than one percent (1%).”

A poor notification process can benefit defendant companies,

since in a “claims­made” settlement, any money that isn’t

distributed to class members reverts to the company. Plaintiff

lawyers don’t have a financial incentive to push for better

notification, since they often negotiate “clear sailing”

agreements under which defendants agree not to challenge their

fees, and judges almost never tie their fees to the amount of

money that actually winds up in their clients’ hands.

The result: “Defendants say `We’ll pay any claim that is made,’

and you can imagine what happens: Engineer the notice

program so no one finds out about it,” said Todd B. Hilsee, a

consultant who advises courts and the Federal Judicial Center

on how to notify class members.

Plaintiff lawyers rarely disclose the actual response rates in class

action settlements but the available data show they are

vanishingly small in consumer cases, where individual damages

are frequently too low to justify the time required to fill out a

settlement form. Participation rates are so predictably low that

defendants can buy insurance in claims­made cases where they

pay a single up­front premium and the insurer takes the risk

that more people than expected file claims.

Watch on Forbes:
9/16/2016 Banner Ads Are A Joke In The Real World, But Not In Class­Action Land

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“Everybody knows these notice schemes don’t work, and they’re

intended not to work,” said Ted Frank with the Competitive

Enterprise Institute’s Center for Class Action Fairness, which

frequently challenges what it believes are collusive settlements

and excessive fees. “People intend the foreseeable consequences

of their actions. And they know when they do a notice program

without attempting to get the names of the class members,

you’re not going to get a high response rate.”

Hilsee thinks that’s what happened in the second Remington

lawsuit. It represented a “claims process designed to fail,” he

wrote in a July letter to Judge Smith. Internet ads probably

reached half the class, not 73% as the notice vendor told the

court, he wrote. The reach should be more like 95% in a case

involving a potentially deadly defect, Hilsee told me in an

interview.

After Judge Smith rejected the first settlement over concerns

about notice, plaintiff lawyers and Remington hired former

Obama campaign manager Jim Messina to run a broader plan

including targeted Facebook ads and 60­second radio spots on

shows hosted by Rush Limbaugh and Sean Hannity. Hilsee is

still skeptical the second plan will work.

“With the fragmentation of media there are more choices, more

options,” said Hilsee, who doesn’t compete with notice vendors

but has been hired by parties in class actions to critique their

methods.. “The cost to gain attention is going up, but guess

what, these new firms are coming in and saying `We can put out

internet banners, send emails, and get the same reach.’”

The problem with Internet notice is there are no standards for

judging its effectiveness. Some vendors boast of reaching

millions of potential class members by running banner ads with

“frequency capping” limiting them to one view per Internet

protocol address. That supposedly guarantees one viewing per

individual, but few advertisers in the real world would buy that

pitch. A frequency cap of one, or even five or six, guarantees the

majority of the “engagements” are with non­human bots. Market research shows real humans need to see a message

several times for it to sink in and even then the number of

people who click through a banner ad to investigate further is

tiny. Google says more than half of Web ads are not “seen” by

industry standards, meaning at least 50% of the ad’s pixels are

on screen for at least a second.

“Unfortunately what we see more and more is whoever can

come up with the cheapest bid and put an affidavit in that it

meets standards of due process, that firm will be hired,” said

Katherine Kinsella, the recently retired founder of Kinsella

Media, which specializes in legal notification. “It is a reverse

auction.”
9/16/2016 Banner Ads Are A Joke In The Real World, But Not In Class­Action Land

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For a settlement of claims over allegedly fire­prone Conair hair

driers in California, KCC — the firm that warned of low

participation rates without direct mail — proposed a campaign

including 15 million Internet ads with frequency capping of one

that supposedly would reach 75% of adult women in California

and New York. The plan didn’t account for the fact that many of

the viewers could be bots, half the ads would remain unseen

even by humans, and frequency capping of one doesn’t

eliminate the chance one person with multiple devices will see

the same banner ad more than once. Consultants also tell courts

they have increased their reach by running ads in front of

different groups of people – women in their 20s, say, and

women who purchase hair driers – when standard practice in

the advertising business is to account for the strong potential for

double­counting.

Such objections only come up when one of the parties in a class

action hire an expert like Hilsee or Kinsella to contest a notice

plan. Notice vendors rarely criticize each others’ work because

that might cut them out of the next contract.

“You can’t critique anybody else’s work publicly,” said Kinsella,

who in retirement feels more free to speak. “You’re blackballed.”

Hilsee has drawn fierce criticism from notice vendors for

denigrating the effectiveness of Internet ads. His letter to Judge

Smith in the Remington case “levels accusations that are

objectively false, rife with misinformation, and derived from a

foregone era of media consumption—the only era during

which Mr. Hilsee ever actually professionally planned or

implemented notice campaigns,” said Steven Weisbrot, a vice

president with settlement administrators Angeion Group in a

rebuttal to Hilsee’s unsolicited comments.

Non­human viewership “is generally regarded to be minimal,” Weisbrot wrote, and Angeion hired outside firms to verify bots

weren’t the only one seeing the notices. Direct mail would be

more effective, he said, but there are “enormous legal and

practical barriers” to getting names and addresses of gun

owners from firearms dealers, the Bureau of Alcohol, Tobacco

and Firearms or the NRA. Such an expense is unnecessary

anyway, Weisbrot said, since “this is a case about the monetary

value of a rifle,” seeking economic damages not money for

injuries and deaths.

A committee overseeing the revision of the Federal Rules of

Civil Procedure is considering loosening the rules for notice,

allowing “electronic means” instead of requiring direct mail

whenever possible.

Getting names and addresses of class members isn’t impossible

if lawyers push hard enough to do it, however. After Frank and

the Center for Class Action Fairness objected to a settlement of

litigation over Bayer aspirin that would have paid lawyers $5

million and only a fraction of that amount to class members,

lawyers subpoenaed Safeway for customer sales data and found

enough class members to distribute another $5.8 million. In

another case involving baby products, lawyers paid an

additional $14.5 million to more than 1 million class members
9/16/2016 Banner Ads Are A Joke In The Real World, But Not In Class­Action Land

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after they’d originally told the court they couldn’t find their

clients and would distribute the money to charity in what is

known as cy pres.

“You can make the notice process very effective. It’s sometimes

costly but in many instances the costs are worth bearing,” said

Brian Wolfman, an associate professor at Georgetown Law

School and former director of litigation at Public Citizen, which

frequently intervenes in class actions.

One way to insure plaintiff lawyers push for the most effective

notice would be to tie their fees to the amount of money actually

distributed. That prospect concerns class­action lawyers, who

argue their pay shouldn’t be hostage to the efforts of third­party

contractors. Wolfman disagrees. As a public­interest lawyer he

didn’t collect a percentage of settlements he negotiated, but still

pushed forcefully to track down class members including in a

California case over illegal collection practices by a lender

affiliated with the government.

The lender mailed checks directly to class members but even so

some of them went uncashed. So Wolfman and a colleague

convinced the judge to spend more money locating the

recipients of the uncashed checks to make sure they had

received them. The claim rates rose past 90%.

This exposes a deep irony in the way the class­action system

works. Unique in American law, class actions are opt­out,

meaning class members are considered to be plaintiffs in the

litigation unless they notify the court they want out. Lawyers

claim this is necessary because they couldn’t otherwise gather

enough plaintiffs to bring a case where individual damages are

small.

But the whole system flips when it comes time to distributing

the proceeds of a settlement. Then the case becomes opt­in –

class members only get paid if they file a claim with the court.

Sometimes this is necessary when the case requires proof of

damages but critics including Wolfman say plaintiff lawyers

should push harder for settlements where benefits flow directly

to their clients.

“You can’t have an opt­out class action and demand it is

effectively opt­in at the back end –that’s crazy,” Wolfman told

me. “Whenever possible, you don’t require people to file a claim.

You send them a check.”

Follow @DanielDFisher

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This article is available online at: 2016 Forbes.com LLCTM All Rights Reserved
TAB 4

COMMENTS OF

PAUL BLAND AND LESLIE A. BRUECKNER,

PUBLIC JUSTICE
Via electronic delivery to: rules_support@ao.uscourts.gov 

March 27, 2015 

Committee on Rules of Practice and Procedure 

Thurgood Marshall Building 

Administrative Office of the United States Courts 

One Columbus Circle NE 

Washington, DC 20544 

RE: Possible Amendments to Federal Rule of Civil Procedure 23 

To the Members of the Advisory Committee on Civil Rules and the Rule 23 

Subcommittee: 

Public Justice, P.C. and the Public Justice Foundation (collectively, “Public 

Justice”) respectfully submit the following suggestions for amending Federal Rule 

of Civil Procedure 23 to the Advisory Committee on Civil Rules and its Rule 23 

Subcommittee (the “Subcommittee”). 

Public Justice is the only public interest organization in the country that both 

aggressively prosecutes a wide range of class actions and has a special project to 

preserve class actions and prevent their abuse. Public Justice regularly represents 

workers and consumers in both individual and class actions, and its experience is 

that aggregate litigation often affords the only way to address corporate 

wrongdoing where individuals by themselves lack the knowledge, incentive, or 

effective means to pursue their claims. 

Public Justice hereby urges the Subcommittee to adopt the following 

proposed amendments in order to address certain proposals and judicial decisions 

that threaten to undermine the viability of the class action device and run contrary 

to the core purposes of Rule 23. 
I. R

a

M

Summa

L

wrongd

aggrega

widespr

particul

cited be

case bas

propose

adding i

ascertai

particul

Propos

R

deleted;

(b

Rule 23(b)(

a Factor in

Method of 

ary: 

Legal comm

doing as a p

ating small

read but no

larly well s

enefit of cla

sis, by judg

e formalizin

it as an exp

ning wheth

lar case. 

ed Amend

Rule 23(b) 

; matters it

b) Types 

23(a) i

(3) the 

mem

mem

met

mat

(A) t

p

(B) t

a

(C) t

t

(3) Should

n Determin

Litigation

mentators a

proper purp

-value clai

ot ruinous t

suited to se

ass actions

ges decidin

ng the dete

plicit facto

her a class 

dment: 

should be 

talicized ar

of Class A

s satisfied 

* * * 

court find

mbers pred

mbers, and

thods for f

tters pertin

the class m

prosecutio

the extent 

already be

the desirab

the claims 

d Be Amen

ning Whet

n. 

and judges

pose, and b

ims when t

to any of it

erving this 

s should be

ng whether

errence inq

or under Ru

action is s

amended a

re to be add

Actions. A

and if: 

s that the q

dominate o

d that a cla

fairly and e

nent to thes

members’ in

n or defen

and nature

gun by or 

bility or un

in the part

2

nded to Ad

ther a Cla

 alike have

beneficial e

the damage

ts individu

deterrence

e recognize

r to certify

quiry into t

ule 23(b)(3

superior to 

as follows

ded): 

A class actio

questions o

over any qu

ss action is

efficiently a

se findings

nterests in 

se of separ

e of any liti

against cla

ndesirability

ticular foru

dd Deterr

ass Action 

e long reco

effect, of c

e caused b

ual victims,

e function. 

ed, and con

y class actio

the class ce

3), to be we

 other form

(matters in

on may be 

of law or fa

uestions af

s superior t

adjudicatin

s include: 

individual

rate action

igation con

ass membe

ty of conce

um; [and]

ence of W

Is the Sup

ognized de

class litigat

by wrongdo

, class acti

We believ

nsidered on

ons under R

ertification

eighed whe

ms of litiga

n brackets 

maintaine

act commo

ffecting on

to other av

ng the cont

lly control

s; 

ncerning th

ers; 

entrating th

Wrongdoing

perior 

terrence of

tion. By 

oing is 

ons can be

ve that this

n a case-by

Rule 23. W

n analysis b

en 

ation in a 

are to be 

ed if Rule 

on to class 

ly individu

vailable 

troversy. T

ling the 

he controve

he litigation

g as 

f

e

 oftyWe 

by 

ual 

The 

ersy 

n of 
3

(D) the likely difficulties in managing a class action; and 

(E) the comparative effectiveness of the class action device in 

deterring the particular type of misconduct alleged. 

Analysis: 

The class action is widely recognized as a vehicle for effective deterrence of 

wrongdoing. See Newberg on Class Actions § 1:8 (5th ed. 2013) (“In addition to 

their compensatory function, class actions deter misconduct by harnessing private 

attorneys general to assist in the enforcement of important public policies.”); 

Hughes v. Kore of Ind. Enter., Inc., 731 F.3d 672, 677 (7th Cir. 2013) (“A class 

action, like litigation in general, has a deterrent as well as a compensatory 

objective.”); Edward F. Sherman, Consumer Class Actions: Who Are the Real 

Winners?, 56 Me. L. Rev. 223, 228 (2004) (“[I]t must be kept in mind that the 

objective of consumer class actions is not only compensation, but also deterrence 

and disgorgement of wrongful profits.”). 

As Judge Posner noted in the Hughes decision, litigation in any form 

provides some amount of deterrent value. 731 F.3d at 677. However, the class 

action vehicle goes further than ordinary individual litigation in providing 

deterrence in circumstances where it would otherwise be lacking. Id. at 678. First, 

the aggregating of small claims enables deterrence against widespread 

wrongdoing, even when individual damages are relatively small. See Hawaii v. 

Standard Oil Co. of Cal., 405 U.S. 251, 266 (1972) (“Rule 23 . . . provides for 

class actions that may enhance the efficacy of private actions by permitting citizens 

to combine their limited resources to achieve a more powerful litigation posture.”);

Jones v. DirecTV, Inc., 381 F. App’x 895, 896 (11th Cir. 2010) (recognizing that 

class actions support “a public policy favoring the pursuit of small-value claims to 

deter companies from misconduct.”); deHaas v. Empire Petroleum Co., 435 F.2d 

1223, 1231 (10th Cir. 1970) (“Since [class action rules] allow many small claims 

to be litigated in the same action, the overall size of compensatory damages alone 

may constitute a significant deterrent.”) 

Second, class litigation empowers private parties to act as private attorneys 

general, enforcing public interests where public law enforcement entities are 

unable or unwilling to do so. This deterrent function fills the gaps in many areas of 

the law including antitrust, securities fraud, and consumer financial protection; 

and it offers several advantages over governmental or agency action. See, e.g., 

Mark A. Cohen & Paul H. Ruben, Private Enforcement of Public Policy, 3 Yale J. 

on Reg. 167, 168-69 (1985) (arguing that private enforcement may be more 
efficien

Innovat

(arguing

than cap

Econom

Thomps

innovat

A

other m

agency 

action b

brought

feasible

are an in

Given th

litigatio

of super

II. R

R

C

Summa

In

F.3d 30

requires

class me

Id. at 30

2012)). 

weightwas rea

capped 

have ha

N

banc in 

“threate

Rule 23

(quoting

nt than publ

tion of Citiz

g that priva

ptured pub

mics of Anti

son, supra

ive means 

A class acti

methods of l

has the aut

by that agen

t by individ

e, however,

ndispensab

he univers

on, we urge

riority. 

Rule 23 Sh

Rigid “Asc

Certificatio

ary: 

n the wake

0 (3d Cir. 

s a showing

embers be 

05 (quoting

The Carre

loss supple

dily define

at a certain

ad no practi

Notably, fo

Carrera, s

ens the viab

3 in the firs

g Br. of Am

lic enforce

zen Enforc

ate enforce

blic agencie

itrust Enfo

, at 206 (ar

of deterren

ion will no

litigation in

thority to e

ncy might 

duals only 

, due to sca

ble way to 

al recognit

e that deter

hould Be A

certainabil

on. 

e of the Thi

2013), cou

g, at the cl

“currently

g Marcus v

era panel d

ements on 

ed based on

n amount; 

ical ability

ur Third C

stating that

bility of th

st instance.

mici Curiae

ement); Bar

cement, 20

ers are less

es); Warren

orcement, 6

rguing that

nce agains

t be a mor

n every ca

exact civil 

well have 

seeking da

arce resour

deter wron

tion of dete

rrence be fo

Amended t

lity” Requ

ird Circuit

urts have b

ass certific

y and readi

v. BMW of

denied cert

“ascertain

n objective

and (3) ab

y to redress

Circuit judg

t the panel

he low-valu

’” 2014 W

e Professor

4

rton H. Th

00 U. Ill. L

s conflicted

n F. Schwa

68 Geo. L.J

t private en

t wrongful

e effective

se. For exa

penalties o

a stronger

amages. G

rces and co

ngdoing w

errence as 

formally in

to Rectify

uirement a

’s decision

een strugg

cation stag

ly ascertai

f N. Am., LL

tification o

nability” gr

e criteria; (

sent a clas

s their injur

ges dissent

’s decision

ue consume

WL 388793

rs of Civil 

hompson, J

L. Rev. 18

d and less p

artz, An Ov

J. 1075, 10

nforcement

l conduct).

e deterrent 

ample, whe

or other sa

r deterrent 

overnment

onflicting p

ithout strai

a beneficia

ncluded in R

Court De

as a Preco

n in Carrer

gling to dec

ge, that the 

nable base

LC, 687 F.

of a consum

rounds eve

(2) the defe

ss action, th

ries. 

ed from th

n “goes too

er class act

8, at *1, *2

Procedure

Jr., The Co

5, 189-92 

politically 

verview of

093 (1980)

t generates

.

to wrongd

en a gover

anctions, en

effect than

tal action i

priorities. C

ining the p

al result of

Rule 23(b)

cisions tha

ndition fo

ra v. Bayer

cide wheth

identity of

ed on objec

.3d 583, 59

mer class ac

en though (

endant’s li

he consum

he denial of

o far” and a

tion ‘that n

2 (May 2, 

e and Com

ontinuing 

(2000) 

constraine

f the 

) (same); 

s more 

doing than 

rnmental 

nforcement

n a class ac

is not alwa

Class actio

public coffe

f class actio

)(3)’s analy

at Impose 

or Class 

r Corp., 72

her Rule 23

f individua

ctive criter

92-93 (3d C

ction over 

(1) the clas

ability was

mers would 

f rehearing

arguably 

necessitate

2014) 

mplex 

ed 

t

ction 

ays 

ons 

fers. 

on 

ysis 

a 

27 

3

al 

ria.” 

Cir. 

ss 

s

g en 

d 
5

Litigation 3). The dissent further noted that “[t]he consequence of a step too far is 

the curtailment of well-intentioned class actions with many members yet all with 

claims too minimal to be asserted individually.” Id. at *3. The dissent concluded 

that, in light of the potentially grave impact of the panel’s decision on the viability 

of small-damages class actions, “the Judicial Conference’s Committee on Rules of 

Practice and Procedure [should] look into this matter.” Id. 

We strongly agree. As explained below, Carrera conflicts with wellestablished Rule 23 jurisprudence and undermines the core purposes of Rule 

23(b)(3). It has also spawned conflicting rulings on the so-called ascertainability 

issue. Guidance, in short, is sorely needed. We accordingly urge the Subcommittee 

to amend Rule 23(c) to make clear that “ascertainability” merely requires a finding, 

at the class certification stage, that the class definition is based on objective 

criteria. This is the majority approach used by courts in the past, and it should be 

enshrined in the Rule to prevent further confusion on this important point. 

Proposed Amendment: 

Rule 23(c) should be amended as follows (matters in brackets are to be 

deleted; matters italicized are to be added): 

(c) Certification Order; Notice to Class Members; Judgment; Issues 

Classes; Subclasses. 

(1) Certification Order. 

 * * * 

(B) Defining the Class; Appointing Class Counsel. An order that 

certifies a class action must define the class and the class claims, 

issues, or defenses, and must appoint class counsel under Rule 

23(g). In certifying a class under Rule 23(b)(3), the court must 

define the class so it is ascertainable by reference to objective 

criteria. The ascertainability or identifiability of individual class 

members is not a relevant consideration at the class certification 

stage.
Analysi

A

T

majority

decision

that ruli

helpful 

opposed

A

view as

howeve

Class A

2014). S

ascertai

which g

the prov

Daniel L

Fordham

Ascerta

which r

availabl

W

23(c)(1)

and bec

generall

amendm

Rule 23

T

certifyin

ascertai

Carrera

ascertai

ascertai

plaintiff

is: 

A. The P

Codi

The propos

y of courts

n in Carrer

ing. Before

to explain 

d to some o

Although as

certainabil

er, as to the

Actions § 3

Some cour

nable class

governs cla

vision of cl

Luks, Asce

m L. Rev. 2

ainability is

requires cou

le methods

We think th

)(B), which

comes pote

ly only con

ment would

3. 

The wordin

ng a class u

nable by re

a courts ap

nability ha

ned by obj

f’s state of

Proposed 

ify—Pre-C

ed amendm

s approache

ra and is d

e addressin

why we ar

other part o

scertainabi

lity as an “

e statutory 

:2 (5th ed. 

rts imply th

s; others fi

ass certifica

lass notice

ertainabilit

2359 (2014

s also argu

urts to dete

s for fairly 

hat it make

h is the sta

entially disp

nsidered in

d limit the 

ng of the pr

under Rule

eference to

pproached t

as always “

jective crit

f mind) or t

Amendm

Carrera Ju

ment set fo

ed “ascerta

designed to

ng Carrera

re proposin

of the Rule

ility is not 

“implicit” r

basis for th

2013); 1 M

hat the term

ind support

ation; yet o

 in some ty

ty in the Th

4) (discuss

ably an im

ermine wh

and efficie

s the most 

age of class

positive. H

n the contex

amendmen

roposed am

e 23(b)(3), 

o objective

the issue. A

“focus[ed] 

teria,” as op

terms that 

6

ent Is Con

udicial Pra

orth above 

ainability”

 correct wh

a in detail (

ng to add “

e. 

an explicit

requiremen

hat require

McLaughli

m “class” in

t for ascert

others look

ypes of cla

hird Circui

sing origin

mplicit cons

hether a cla

ently adjud

sense to a

s litigation

However, b

xt of (b)(3

nt to classe

mendment—

the court m

e criteria”—

As one not

on the que

pposed to 

depend on

nsistent wi

actice. 

is consiste

prior to th

hat we see

(which we 

“ascertaina

t element o

nt of the Ru

ement. See 

in on Class

n Rule 23(

tainability 

k to Rule 2

ass actions.

it: Name th

ns of ascert

sideration u

ass action i

dicating a c

address asc

n when the 

because “as

) damages 

es brought 

—which pr

must defin

—is consist

ted authorit

estion of w

“subjectiv

n resolution

ith—and I

ent with the

he Third Ci

e as the maj

do below)

ability” to R

of Rule 23

ule. Courts

generally 

s Actions §

(a) means a

in Rule 23

23(c)(2), w

. Id.; see g

hat Class M

tainability)

under Rule

is “superior

controversy

certainabili

question n

scertainabi

 classes, ou

under that

rovides tha

ne the class

tent with th

ty has writ

whether the

ve standard

n of the me

Intended t

e way the 

ircuit’s 

ajor flaw of

), it may be

Rule 23(c)

, many cou

s differ, 

Newberg 

§ 4.2 (11th

a definite o

3(c)(1)(B), 

which gover

generally 

Member, 8

). 

e 23(b)(3),

r to other 

y.” 

ity in Rule 

naturally ar

ility” is 

ur propose

t prong of 

at “[i]n 

s so it is 

he way pre

tten, 

e class can 

ds (e.g. a 

erits (e.g.

to 

f

e

), as 

urts 

on 

ed. 

or 

rns 

2 

rises 

ed 

ebe 
7

persons who were discriminated against).” Newberg on Class Actions § 3:3; see 

also Manual for Complex Litig., Fourth § 21.222 (Fed. Judicial Ctr. 2004). 

Importantly, courts have long “held that the class does not have to be so 

ascertainable that every potential member can be identified at the commencement 

of the action.” 7A Wright & Miller, Federal Practice & Procedure § 1760 (3d ed. 

2005); see also Newberg on Class Actions § 3:3; Manual for Complex Litig.

§ 21.222. As one learned treatise put it, “[t]o place such a burden on plaintiffs 

would seem harsh and unnecessary” and make many class actions “very difficult, if 

not impossible.” Wright & Miller § 1760. Hence, “[i]f the general outlines of the 

membership class is determinable at the outset of the litigation, a class will be 

deemed to exist.” Id. (footnote omitted). Accord Fitzpatrick v. General Mills, Inc., 

635 F.3d 1279 (11th Cir. 2011) (holding that class defined as “all persons who 

purchased [the defendant’s product] in the State of Florida” is adequately 

ascertainable for class certification purposes). 

Requiring courts to consider whether the class definition is based on 

objective criteria would weed out class actions where the proposed class is so 

amorphous as to render class treatment unworkable and arguably unfair. For 

example, the Fifth Circuit once refused to certify a class of “residents of this State 

active in the ‘peace movement’ who have been harassed and intimidated as well as 

those who fear harassment and intimidation in exercising their First Amendment 

right.” DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970). The Court noted 

that an essential element to maintaining a class action is that the class be 

“adequately defined and clearly ascertainable.” This requirement was not met, in 

the Court’s view, because the term “peace movement” could mean any number of 

things, and because it would be impossible to determine which class members 

“feared harassment and intimidation” without individualized findings of fact.1

We agree with this conclusion. It makes perfect sense to eliminate class 

actions where the class definition is based on subjective criteria. The proposed 

amendment is designed to codify this approach. What does not make sense, in our 

view, is the approach the Third Circuit adopted in Carrera, which makes it 

virtually impossible to obtain class certification in precisely the cases that need it 

most—cases involving small-value retail products, where individuals are unlikely 

                                                            

1 Other circuits’ approaches have been similar. See, e.g., Simer v. Rios, 661 F.2d 655, 669 (7th 

Cir. 1981); Ihrke v. N. States Power Co., 459 F.2d 566, 573 & n.3 (8th Cir. 1972), vacated as 

moot, 409 U.S. 815 (1972). 
to have 

based o

B

C

class ac

be able 

they wil

feasible

that the

in claim

“reliabl

A

class co

individu

clearly a

product

and (3) 

at a fini

W

foremos

As the U

class ac

provide

her righ

omitted

potentia

labor.” I

to each 

treatmen

than (w

Inc., 73

If

problem

kept receip

n the defen

B. Carr

Sens

Contrary to

ction canno

to identify

ll be able t

e,” and doe

ey will be a

ms processe

e.” See 727

Applying th

ould not be

ual litigatio

and object

t—WeightS

it was und

ite amount 

1.

We believe 

st, Carrera

U.S. Supre

ction mecha

e the incent

hts.” Amche

d). “A class

al recoverie

Id. (citatio

victim of u

nt and the 

ithout a cla

1 F.3d 672

f Carrera’

m” addresse

pts of their

ndants’ ow

era Is Con

e, and Ha

o all the aut

ot be certifi

y—or “asce

to do so thr

es not requi

able to do 

es for deca

7 F.3d at 3

hese criteri

 certified e

on, yet the 

ively defin

Smart—in 

disputed tha

that could

Carrera

that this re

a runs afou

eme Court h

anism is to

tive for any

em Prods.,

s action sol

es into som

on omitted)

unlawful c

likelier tha

ass action)

2, 675 (7th 

s approach

ed in Amch

r purchases

wn records.

ntrary to R

s Caused R

thorities ci

ied unless 

ertain”—th

rough a pro

ire “much,

so without

ades) becau

307-10. 

ia to the fa

even thoug

misconduc

ned (it cons

a single st

at the defe

d be determ

Is Contra

esult is ind

ul of the mo

has explain

o overcome

y individua

, Inc. v. Wi

lves this pr

mething wo

). As anoth

conduct, the

at the class

) probably 

Cir. 2013)

h to ascerta

hem will go

8

s and class

Rule 23, L

Rampant 

ted above,

the plainti

he individu

ocess that 

, if any, ind

t relying on

use those fo

cts before 

gh (1) the d

ct was sub

sisted of al

tate—Flori

ndant’s tot

mined based

ary to Rule

defensible o

ost basic p

ned, “[t]he

e the probl

al to bring 

indsor, 521

roblem by 

orth someo

her court ha

e greater th

s members 

nothing.” H

). 

ainability b

o unrectifi

s membersh

Lacks any G

Confusion

, Carrera h

ffs can pro

ual membe

is “reliable

dividual fa

n affidavits

orms of pro

it, Carrera

damages w

bstantial; (2

ll persons w

ida—withi

tal liability

d on the co

e 23(b)(3)’

on several 

purposes un

e policy at 

lem that sm

a solo acti

1 U.S. 591

aggregatin

one’s (usua

as written, 

he econom

will receiv

Hughes v. 

becomes th

ied in a larg

hip cannot

Groundin

n in the C

held that a 

ove (1) that

ers of the cl

e,” “admin

actual inqui

s and claim

oof are not

a held that 

were too sm

2) the prop

who purch

in a known

y to the cla

ompany’s o

’s Core Pu

levels. Fir

nderlying R

the very co

mall recove

ion prosecu

, 617 (199

ng the relat

ally an atto

“[t]he sma

mies of clas

ve some m

Kore of In

he law of th

ge number

t be proven

ng in Comm

ourts. 

consumer 

t that they 

lass; (2) th

nistratively

iry”; and (

ms forms (u

t sufficient

the plainti

mall to justi

posed class 

hased a sing

n time perio

ass was cap

own record

urposes. 

rst and 

Rule 23(b)

ore of the 

eries do no

uting his o

97) (quotati

tively paltr

orney’s) 

aller the sta

ss action 

money rathe

nd. Enter., 

he land, “th

r of cases a

n

mon 

will 

hat 

y

3) 

used 

tly 

iff 

ify 

was 

gle 

od); 

pped 

ds. 

(3). 

ot 

or 

ion 

ry 

akes 

er

he 

and 
9

tortfeasors will get off scot free. That cannot be reconciled with the core purposes 

of Rule 23. See Judith Resnick, From “Cases” to “Litigation,” 54 Law & 

Contemp. Probs. 5, 14 (1991) (explaining that Benjamin Kaplan, primary drafter of 

Rule 23, intended the rule to “provide means of vindicating the rights of groups of 

people who individually would be without effective strength to bring their 

opponents into court at all”) (citation omitted). 

2. Carrera’s Reasoning Is Unconvincing and Illogical. 

Second, Carrera’s reasoning is flawed at its core. The Carrera panel 

defended its novel approach to ascertainability on the ground that defendants have 

a “due process right to challenge class membership” at the class certification stage. 

727 F.3d at 307. But the Carrera defendant’s total liability was capped at $14 

million, “no more, no less.” Id. at 310. This amount, moreover, was based on the 

defendant’s own sales records/data, rather than an artificially-limited fund, so there 

is no question that the liability amount was based on actual damages. Because the 

defendant’s total payout would be the same regardless of whether individual class 

members could be identified—or “ascertained”—there was no basis for the panel’s 

refusal to allow the case to proceed on due process grounds. 

Carrera also reasoned—equally wrongly, in our view—that its approach 

was necessary to protect the defendant from the risk of a collateral attack on the 

judgment by aggrieved class members whose recoveries were substantially reduced 

by “fraudulent or inaccurate claims.” Id. at 310. This argument fails, first, because 

the notion that a significant number of non-class members would submit fraudulent 

or otherwise faulty affidavits, under penalty of perjury, in the hope of collecting a 

few dollars, is itself far-fetched. Second, even if there were a substantial number of 

fraudulent claims, the likelihood that class members’ relief would be affected is 

minimal given that, “in small-claims, consumer class actions, less than twenty 

percent” of class members actually file a claim. M. Gilles, Class Dismissed: 

Contemporary Judicial Hostility to Small-Claims Consumer Class Actions, 59 

DePaul L. Rev. 305, 315 (2010). And third, even if the possibility that class 

members’ claims would be “diluted” by fraudulent claims were substantial, it is 

“exceedingly rare for court to permit after-the-fact challenges by class members.” 

Alison Frankel, 2nd Circuit: Class Members Deserve Notice, Reuters, Aug. 25, 

2012. 

 The final error in Carrera was its view that a rigid approach to 

ascertainability is needed to protect absent class members from the risk that their 

recoveries will be diluted by fraudulent claims. See Carrera, 727 F.3d at 310. Not 

only was there no factual basis for this concern (as explained above), but the panel 
10

ignored that, absent a class action, the absent class members would have no 

practical means of recovering anything from the defendant, let alone the full value 

of their claims. In the end, the supreme irony of Carrera is that, in purporting to 

protect class members by denying class certification on ascertainability grounds, 

the Third Circuit effectively insured that they would not recover anything at all. 

3. Carrera Has Engendered Confusion and Disagreement in 

Other Circuits. 

Finally, it is important to note that Carrera has engendered widespread 

confusion and disagreement in other courts. In the wake of Carrera, a number of 

courts have refused to certify class actions on ascertainability grounds, despite the 

fact that the class was clearly defined based on objective criteria and the damages 

at issue were too small to support individual litigation.2

For example, in Karhu v. Vital Pharmaceuticals, Inc., 2014 WL 815253 

(S.D. Fla. Mar. 3, 2014), the district court refused to certify a class of consumers 

who alleged that the dietary supplement Meltdown does not burn fat and promote 

rapid fat loss as advertised. The court denied class certification on ascertainability 

grounds, holding that there was no record of Meltdown purchasers, it was unlikely 

that Meltdown purchasers save their receipts, and affidavits from class members 

would not be trustworthy. Id. at *3. Relying on Carrera, the court reached this 

result despite the plaintiff’s argument that the defendant could easily identify many 

class members by sending subpoenas to the retailers identified in its sales records. 

Id. Accord Randolph, 2014 WL 7330430 (refusing to certify consumer class on 

ascertainability grounds; following Karhu and Carrera).

3

 

Courts in the Ninth Circuit are particularly conflicted on this issue. In Lilly v. 

JambaJuice Co., 2014 WL 4652283, at *4 (N.D. Cal. Sept. 18, 2014), for example, 

                                                            

2 See, e.g., In re Clorox Consumer Litig., 301 F.R.D. 436, 442 (N.D. Cal. 2014) (refusing to 

certify class of purchasers of cat litter on ascertainability grounds); In re Intel Corp. 

Microprocessor Antitrust Litig., 2014 WL 6601941, at *12 (D. Del. July 31, 2014) (refusing to 

certify antitrust and consumer protection class action on ascertainability grounds); Langendorf v. 

Skinnygirl Cocktails, LLC, 2014 WL 5487670, at*1-*2 (N.D. Ill. Oct. 30, 2014) (refusing to 

certify consumer class action against maker of premixed alcoholic beverage on ascertainability 

grounds); Randolph v. J.M. Smucker Co., 2014 WL 7330430, at*4 (S.D. Fla. Dec. 23, 2014) 

(refusing to certify consumer class action against producer of various cooking oils on 

ascertainability grounds). 

3 The Eleventh Circuit heard oral argument in Karhu on February 6, 2015. See Karhu v. Vital 

Pharm., Inc., No. 14-11648. 
the cour

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claims a

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2014), cl

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2014) (“G

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ter verify th

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es one of its

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the district 

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f Carrera. 

act expedit

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Rule 68 Sh

Purpose an

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Rule 68 per

and to reco

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o Brazil v. D

lass decertifi

ng to follow C

Given that fa

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the ability 

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court emb

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s of Rule 2

but a few ex

To preven

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3(b)(3) inte

hould Be A

nd Given R

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rmits defen

over costs f

unt of the o

Federal Rul

                   

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fied on other 

Carrera); Fo

acilitating sm

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ted Carrer

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d goods, si

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ince there i

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f the disagr

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Third Circ

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make offers

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LC, 2014 24

014 WL 5794

Hyland’s, Inc

is ‘[t]he poli

ra.”) (quotin

ng “signific

consumer 

is little pos

et is it prec

nsumer is s

at the class 

ts.”4 

4 WL 2702

efused to c

abeled and

ion of Cali

nes plainti

ainability r

Agra Foods

reement th

d disagreem

cuit’s error

mall money

It Has Fai

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s of judgm

ultimately o

een describ

re.” Crossm

4665529, at *

4873 (N.D. 

c., 2014 WL

icy at the ver

ng Amchem P

cant negati

injuries. F

ssibility th

cisely in cir

small, but t

action me

2726 (N.D.

certify a cl

d misbrand

ifornia and

iffs are cha

requiremen

s Inc., Cas

hat has eme

ment, this C

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iled to Ser

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ment to settl

obtain a ju

bed as “am

man v. Mar

*4-6 (N.D. C

Cal. Nov. 6,

L 1410264, a

ry core of th

Prods., 521 

ive 

Few people

hat they wil

rcumstanc

the cumula

echanism 

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ass of 

ed canned 

d federal la

allenging th

nt separate 

e No. 14-

erged in th

Committee

re that clas

s claims, as

ve Its Stat

s, Particul

le plaintiffs

udgment fo

mong the m

rcoccio, 80

Cal. May 30,

, 2014) 

at *5 (C.D. C

he class actio

U.S. at 617)

e

ll 

es 

ative 

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he 

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ted 

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06 

,

Cal. 

on 

). 
12

F.2d 329, 331 (1st Cir. 1986). Empirical studies have shown that it is ineffective at 

promoting settlement. See, e.g., David A. Anderson & Thomas D. Rowe, Jr., 

Empirical Evidence on Settlement Devices: Does Rule 68 Encourage Settlement?, 

71 Chi.-Kent L. Rev. 519, 531-32, 534-35 (1995). At the same time, Rule 68 has 

been widely criticized for giving defendants an unfair advantage and coercing 

plaintiffs to settle meritorious claims for artificially low damages. 

Perhaps the most coercive aspect of Rule 68 involves defendants’ use of 

unaccepted Rule 68 offers to moot cases on the ground that the offer includes all of 

the relief to which the plaintiff was legally entitled. Although some courts in these 

situations enter judgment for the plaintiff in the amount of the offer,5

 other courts 

reason that if the plaintiff’s claim is indeed moot, the court does not have the 

power to enter judgment upon it; in such cases, the claim is dismissed for lack of 

subject matter jurisdiction, and the plaintiff receives nothing.6

 

The question of whether an unaccepted Rule 68 offer can moot a case takes 

on added significance when the plaintiff receiving such an offer seeks to represent 

others with similar claims in a collective or class action. The Supreme Court 

addressed this question, but did not provide a clear answer, in Genesis Healthcare 

Corp. v. Symczyk, 133 S. Ct. 1523 (2013). The Genesis majority assumed without 

deciding, over a spirited dissent written by Justice Kagan, that an unaccepted Rule 

68 offer rendered the plaintiff’s individual claims moot, and then went on to hold 

that her collective action claims under the Fair Labor Standards Act became moot 

when her individual claims did. Id. at 1532. Genesis has sparked a flurry of Rule 

68 offers to plaintiffs not just in FLSA collective actions but also in Rule 23 class 

actions, despite the “fundamental[] differen[ces]” between those two claimaggregating devices that the majority emphasized in its opinion. See id. at 1531-32. 

The goal of these offers is clear: to eliminate class and collective actions by 

“picking off” the named plaintiffs’ claims through Rule 68 offers of judgment. 7

                                                            

5 See, e.g., Cabala v. Crowley, 736 F.3d 226, 228 (2d Cir. 2013); O’Brien v. Ed Donnelly 

Enters., 575 F.3d 567, 575 (6th Cir. 2009). 

6 See, e.g., Greisz v. Household Bank (Ill.) N.A., 176 F.3d 1012, 1015 (7th Cir. 1999); Bradford 

v. HSBC Mortgage Corp., 280 F.R.D. 257, 264 (E.D. Va. 2012); Johnson v. Midwest ATM, Inc., 

881 F. Supp. 2d 1071, 1073 (D. Minn. 2012). 

7

 To be more precise, in Genesis, the Court concluded that the issue was not properly before it 

because the court below had ruled that the plaintiff’s individual claims (but not her collective 

action claims) were mooted by the unaccepted Rule 68 offer, and the Court could not reach the 

issue without a cross-petition from the plaintiff. 133 S. Ct. at 1528-29. 
13

Courts throughout the country evaluating these “pick-off” offers have 

reached different conclusions regarding the ability of an unaccepted Rule 68 offer 

to moot an individual plaintiff’s claim and/or the claims of a class that has not yet 

been certified. This state of affairs undermines the purposes of Rule 23 by causing 

putative class actions to be dismissed before their merits can be examined. The 

Rule 68 “pick-off” phenomenon also undermines the purposes of Rule 68 itself—

to promote settlement and discourage protracted litigation—by spurring ever more 

collateral litigation over what these offers mean and what effect they have. 

In short, we believe that Rule 68 has been a failed experiment with 

pernicious results that are only growing worse, and that it is time for the 

experiment to end.

Proposed Amendment:

Rule 68 should be abrogated in its entirety. The Rule presently provides as 

follows (items to be deleted are bracketed): 

[Rule 68: Offer of Judgment 

(a) Making an Offer; Judgment on an Accepted Offer. At least 14 days 

before the date set for trial, a party defending against a claim may serve on an 

opposing party an offer to allow judgment on specified terms, with the costs then 

accrued. If, within 14 days after being served, the opposing party serves written 

notice accepting the offer, either party may then file the offer and notice of 

acceptance, plus proof of service. The clerk must then enter judgment. 

(b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it 

does not preclude a later offer. Evidence of an unaccepted offer is not admissible 

except in a proceeding to determine costs. 

(c) Offer After Liability Is Determined. When one party's liability to 

another has been determined but the extent of liability remains to be determined by 

further proceedings, the party held liable may make an offer of judgment. It must 

be served within a reasonable time—but at least 14 days—before the date set for a 

hearing to determine the extent of liability. 

(d) Paying Costs After An Unaccepted Offer. If the judgment that the 

offeree finally obtains is not more favorable than the unaccepted offer, the offeree 

must pay the costs incurred after the offer was made.] 

 
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15

liability, or an invitation to regulatory scrutiny or follow-on lawsuits. See Harold S. 

Lewis Jr. & Thomas A. Eaton, Rule 68 Offers of Judgment: The Opinions and 

Practices of Experienced Civil Rights and Employment Discrimination Attorneys, 

241 F.R.D. 332, 346, 350 (2007) (hereafter, Lewis & Eaton). For many defendants, 

a privately negotiated settlement, often with confidential terms and a disclaimer of 

liability, is a more attractive option than the rigid formula of Rule 68. 

Rule 68’s ineffectiveness in promoting settlement has also been attributed to 

the fact that the cost-shifting sanction for an unaccepted Rule 68 offer is triggered 

only when the offeree prevails—albeit for a lesser amount than the offer. 

Defendants who are confident of winning outright have little incentive to make an 

offer and often prefer to take their chances with a motion for summary judgment. 

See Lewis & Eaton, supra, at 350. 

Rule 68 is problematic for an additional reason: Even where it succeeds in 

promoting settlement, it does so in a way that is unfair to plaintiffs. Rule 68 is 

unique among the Federal Rules of Civil Procedure in that it contains a costshifting sanction not for litigants who are found to have acted in bad faith, such as 

by filing frivolous pleadings8

 or failing to cooperate in discovery,9 or even for 

parties who lose,10 but for plaintiffs who prevail and obtain a judgment—just for 

less than the defendant previously offered. Given the vagaries of jury trials, 

plaintiffs who do not in fact believe an offer to be fair or reasonable may 

nonetheless accept it because they are unwilling to risk being slightly less 

successful at trial than they expected to be. This is particularly true since the 

Supreme Court’s 1985 decision in Marek v. Chesny, which held that plaintiffs 

penalized for rejecting a Rule 68 offer may, under certain statutes, also be deprived 

of the attorneys’ fees that prevailing plaintiffs suing under those statutes would 

otherwise recover. 473 U.S. 1, 9 (1985). This bizarre incentive structure has led 

one commentator to observe that the American Rule provides that each party pays 

its own fees and costs, the British Rule awards fees and costs to the prevailing 

party, but Rule 68 can best be termed “the Vegas Rule.” Bruce P. Merenstein, 

More Proposals to Amend Rule 68: Time to Sink the Ship Once and for All, 184 

F.R.D. 145 (1999). Plaintiffs who “settle” because they aren’t willing to take this 

                                                            

8

 Rule 11; Rule 26(g). 

9

 Rule 30(g) (failure to attend noticed deposition); Rule 37(b)(2)(E), (c), and (d) (refusal to make 

required disclosures). 

10 Rule 54(d). 
gamble 

the puni

Advisor

to settle

(Apr. 19

B

T

class ac

as a me

number

under th

have rec

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Kagan p

“[a]n un

nullity, 

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decided

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offer mo

claims o

held tha

action m

                  

11 See, e.g

402 F.3d

12 See, e.

Credit M

Supp. 2d

F.3d 948

Ltd. P’Sh

are not ma

itive terms

ry Commit

e,” Minutes

994), 1994

B. Rule

and U

The problem

ctions, whe

ans of “pic

r of lower f

he Rule tha

covered at 

matter juri

nto Co., 92

the plaintif

iff who ref

), because 

pointed ou

naccepted s

with no op

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s that an un

me courts h

d.

12 

Courts are a

oots the in

of absent c

at the moot

moot if a cl

                       

g., Weiss v. R

d 489 (5th Ci

g., Scott v. W

Mgmt., 722 F.

d 826, 834 (S

 (9th Cir. 20

hip, 772 F.3d

aking a fre

s of the rule

ttee’s recog

s of the Ad

4 WL 8099

 68 Poses 

Undermin

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ere defenda

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federal cou

at the court

trial, the o

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26 F.2d 596

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fuses to ack

he has no 

t the incon

settlement 

perative eff

Ct. at 153

naccepted R

have reache

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class memb

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Regal Collec

ir. 2005); Ru

Westlake Ser

.3d 78, 81 (2

S.D. Tex. 20

013) (adoptin

d 698 (11th C

ee economi

e and cour

gnition tha

dvisory Co

916, at *19

Particular

nes the Pur

ule 68 are m

ants are inc

lead plaint

urts have h

t deems su

offer (whet

ver the dis

6, 598 (7th

demand, th

knowledge

remaining

ngruity of t

offer—lik

ffect” and t

3-34. Yet a

Rule 68 of

ed the sam

gling with t

laims of a 

bers are ren

lass represe

ready been

ctions, 385 F

ussell v. Unit

rvs. LLC, 740

2d Cir. 2013)

13). But see 

ng reasoning

Cir. 2014) (s

16

ic choice; r

rt decisions

at “[t]here i

mmittee on

, this is un

r Problem

rposes of R

magnified 

creasingly 

tiffs and re

eld that wh

ufficient to 

ther accept

spute by ren

h Cir. 1991

here is no d

e this loses

g stake.”) (i

this result i

ke any unac

hat “[n]oth

a number o

ffer would 

me result in

the questio

named pla

ndered moo

entative’s c

n certified, 

F.3d 337, 34

ted States, 66

0 F.3d 1124 

); Silva v. Te

Diaz v. Firs

g of Justice K

same). 

rather, they

s interpreti

is no preex

n Federal R

nacceptable

ms in the C

Rule 23 in

in the con

using Rule

endering th

hen a defen

give the p

ted or not) 

ndering it 

) (“Once th

dispute ove

s outright, u

internal cit

in her Gen

ccepted co

hing in Rul

of lower co

render a p

the years s

on of wheth

aintiff in a p

ot as well.

claim will 

Sosna v. Io

40 (3d Cir. 2

61 F.3d 137

 (7th Cir. 20

egrity Perso

st Am. Home

Kagan’s diss

y are being

ing it. In lig

xisting pro

Rules of C

e. 

Class Actio

n Several R

ntext of col

e 68 offers

he entire ac

ndant mak

plaintiff all 

deprives th

moot. E.g.

he defenda

er which to

under Fed.

tations omi

esis dissen

ontract offe

le 68 alters

ourts had h

laintiff’s c

since Gene

her, assum

putative cl

 The Supre

not render

Iowa, 419 U

004); Krim v

1 (Fed. Cir. 

014); Doyle v

nnel Servs., 

e Buyers Pro

sent); Stein v

g coerced b

ght of the 

cedural du

Civil Proced

on Context

Respects.

llective and

s of judgme

ction moot

kes an offer

she could 

he court of

., Rand v. 

ant offers t

o litigate, a

. R. Civ. P

itted). Just

nt, noting th

er—is a leg

s that basic

held prior t

claim moot

esis was 

ming a Rule

lass action,

eme Court 

r the class 

U.S. 393, 3

v. PCOrder.

2011). 

v. Midland 

Inc., 986 F. 

ot. Corp., 732

v. Buccaneer

by 

uty 

dure 

t

d

ent 

. A 

r

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to 

and 

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tice 

hat 

gal 

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to 

t,

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e 68 

, the 

has 

399 

com, 

2 

rs 
17

(1975), or if class certification has been sought and denied, see Deposit Guar. 

Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 339 (1980). But matters are far 

more uncertain when a class certification motion has not yet been filed or has been 

filed but not yet ruled upon by the court. 

Some courts have held that if a defendant makes a Rule 68 offer before the 

plaintiff moves for class certification, the motion for class certification will relate 

back to the date on which the complaint was filed to protect the putative class from 

the jurisdiction-stripping effects of Rule 68 until the court has an opportunity to 

rule on the certification motion.13 But even here, there is some confusion: Courts 

utilizing this “relation-back” doctrine agree that the certification motion must be 

timely made after the Rule 68 offer, and there is a lack of clear guidance or 

uniformity about what is considered timely. See, e.g., Morgan, 2006 WL 2597865, 

at *4 (“there is no consistent definition of what constitutes . . . an undue delay 

warranting dismissal”). 

Making the situation even more confusing, the Seventh Circuit has rejected 

the relation-back approach altogether and held that if a putative class representative 

receives an offer of full relief before a motion for class certification is filed, the 

class as well as the individual claims become moot. E.g., Damasco v. Clearwire 

Corp., 662 F.3d 891, 895-96 (7th Cir. 2011) (noting that named plaintiffs in 

putative class actions can protect themselves against the mootness effects of Rule 

68 pick-off attempts by filing a motion for class certification when they file their 

complaint). Some district courts within the Seventh Circuit had previously afforded 

plaintiffs in proposed class actions a ten-day “safe harbor” after a Rule 68 offer is 

made to respond with a protective class certification motion, see, e.g., Western Ry. 

Devices Corp. v. Lusida Rubber Prods., Inc., 2006 WL 1697119, at *2 (N.D. Ill. 

June 13, 2006), but it is doubtful whether this practice will survive the Seventh 

Circuit’s ruling in Damasco.

14

                                                            

13 See, e.g., Weiss v. Regal Collections, 385 F.3d 337, 348 (3d Cir. 2004); Bond v. Fleet Bank 

(RI), N.A., 2002 WL 373475, at *8 (D.R.I. Feb. 21, 2002); see also Morgan v. Account 

Collection Tech., LLC, 2006 WL 2597865, at *4 (S.D.N.Y. Sept. 5, 2006) (“[T]he district courts 

in this Circuit are split as to whether a case should be dismissed for lack of subject matter 

jurisdiction when a Rule 68 offer for full relief to the named plaintiff is made prior to the filing 

of a motion for class certification or whether the relation back exception should apply to deem 

the action live.”). 

14 The reason these courts chose ten days as the length of the safe harbor is that, for many years, 

Rule 68 offers remained open for ten days before expiring by their terms. In a 2009 amendment, 

that time period was expanded to 14 days. 
18

The upshot of this confusion is that class action litigation will become more 

chaotic. As one district court has pointed out, all of this jockeying for position, 

with its inevitable emphasis on speed over quality, will “encourage a race to the 

courthouse between defendants armed with uninformed offers and plaintiffs with 

underresearched certification motions.” McDowall v. Cogan, 216 F.R.D. 46, 51 

(E.D.N.Y. 2003). In a recent opinion, the Eleventh Circuit also rejected the weight 

that other courts have placed on the timing of class certification motions in their 

Rule 68 mootness analysis, observing that filing a motion itself has no 

jurisdictional significance and that it is the order certifying the class, rather than 

the motion seeking certification, that changes the nature of the action under Rule 

23. See Stein, 772 F.3d at 707. In Stein, the Court of Appeals concluded that an 

unaccepted Rule 68 offer cannot render class claims moot before the court rules on 

class certification, regardless of whether the Rule 68 offer is made before or after 

the plaintiff moves to certify the class.15

The use of Rule 68 to moot the claims of class representatives and, in some 

instances, the claims of the entire class, is unacceptable for several reasons. First 

and foremost, treating named plaintiffs in pre-certification class actions the same 

as plaintiffs in individual lawsuits for purposes of Rule 68 ignores the special 

status that a litigant takes on by agreeing to represent a class of similarly situated 

persons. This special status is at the core of the class action device: The proposed 

class representative stands in the shoes of many others who were affected by the 

same illegal conduct and represents the interests, and protects the rights, of those 

absent class members. The certification prerequisites of Rule 23(a), particularly the 

requirement for adequacy of representation in Rule 23(a)(4), all strive to ensure 

that the named plaintiff(s) can fulfill this representative role. This means that class 

representatives are supposed to be more than competent, they are also supposed to 

be loyal to the rest of the class members. A key part of that is that the class 

representatives are not supposed to file potential class actions just to make money 

for themselves, they are supposed to be standing up for everyone else in the class. 

This requirement of adequate representation by a loyal class representative is 

required by the U.S. Constitution. Put another way, a named class representative’s 

interest in representing the class is separate from his personal and individual 

                                                            

15 See also Mabary v. Home Town Bank, N.A., 771 F.3d 820 (5th Cir. 2014) (subscribing to the 

relation-back approach but holding that the certification order, rather than the certification 

motion, would relate back to the filing of the complaint, and that if certification was denied, the 

unaccepted Rule 68 offer would then render the named plaintiff’s claims moot); Pitts v. Terrible 

Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) (also applying relation back doctrine from an 

eventual grant of class certification to the filing of the class action complaint); Lucero v. Bureau 

of Collection Recovery, Inc., 639 F.3d 1239 (10th Cir. 2011) (same).
19

economic interest; he undertakes both a duty and a right to represent the interests 

of the class. See, e.g., Lamberson v. Fin. Crimes Servs., LLC, 2011 WL 1990450, 

at *4 (D. Minn. April 13, 2011), citing Johnson v. U.S. Bank Nat’l Ass’n, 276 

F.R.D. 330, 332 (D. Minn. 2011) (“In a class action complaint, the named plaintiff, 

as the putative class representative, has a special role of assuming responsibility for 

the entire class of persons.”). 

The “divide and conquer” argument that Rule 68 offers can be used to bribe 

class representatives to sell out the class runs in the face of this basic idea. The 

argument that is coming up repeatedly is that even if a class representative wants to 

do the right thing—reject an individual pay day for themselves and insist on 

standing up for the entire class—Rule 68 strips them of that power, and the court 

must throw out the whole class. 

Even if a Rule 68 offer made before the court rules on class certification is 

not viewed as mooting class claims, the Rule still exerts inordinate settlement 

pressure on class representatives—pressure that is inconsistent with the purposes 

of Rule 23. This is because the recipient of such an offer does not know at the time 

the offer is made whether a class will ultimately be certified. Thus, instead of 

weighing the risk of paying the defendant’s costs against his likelihood of 

prevailing at trial for a greater amount than the offer—the risk-benefit analysis that 

an individual, non-class-representative plaintiff confronted with a Rule 68 offer 

must make—the plaintiff who is a proposed class representative is “forced to 

balance his personal liability for costs against the prospects of sharing with the 

class in any recovery.” Gay v. Waiters’& Dairy Lunchmen’s Union, Local No. 30, 

86 F.R.D. 500, 502 (N.D. Cal. 1980). This risk of personal liability should class 

certification be denied creates a conflict of interest between the class representative 

and the absent class members who do not face a similar risk, a conflict that creates 

pressure on the class representative to accept the Rule 68 offer. When this “pickoff” tactic is successful, and the proposed class representative accepts the offer, the 

claims of the class will in many cases also be extinguished, because at the precertification stage the court does not have a defined role in evaluating the fairness 

of the settlement under Rule 23(e). See, e.g., Potter v. Norwest Mortg., Inc., 329 

F.3d 608, 611 (8th Cir. 2003) (“[A] federal court should normally dismiss an 

action as moot when the named plaintiff settles its individual claim, and the district 

court has not certified a class.”). In short, by setting up an inherent conflict of 

interest between the risk of individual liability if a Rule 68 offer is rejected and the 

interests of the class in pursuing the litigation, Rule 68 interferes with the ability of 

named plaintiffs in putative class actions to carry out their representative role and 

undermines the entire structure of Rule 23. 
20

This is precisely what the Third Circuit was concerned about when it 

adopted its relation-back strategy in Weiss, noting that “[a]llowing defendants to 

‘pick off’ putative lead plaintiffs contravenes one of the primary purposes of class 

actions—the aggregation of numerous similar (especially small) claims in a single 

action.” 385 F.3d at 345. Unfortunately, because of the cost-shifting mechanism of 

Rule 68, the courts cannot prevent at least some pick-off offers to named plaintiffs 

in class actions from succeeding, especially since in many class actions the amount 

that any named plaintiff is likely to recover is small. And the dismissal of one 

putative class action through a successful pick-off offer followed by another 

putative class action challenging the same conduct in turn contravenes the stated 

purpose of Rule 68 as it “would invite waste of judicial resources by stimulating 

successive suits brought by others claiming [the same] aggrievement.” Roper, 445 

U.S. at 339. 

There is no clear fix for any of this. Some named plaintiffs in putative class 

actions have sought to minimize the danger of pre-certification Rule 68 offers by 

first rejecting and then moving to strike them so that they cannot later be used 

against the plaintiff for cost-shifting purposes. This strategy has met with mixed 

success, for as with so much else in the realm of Rule 68 and class actions, the 

courts are split on how to handle these motions to strike.16

In short, not only has Rule 68 failed to fulfil its intended goal of promoting 

settlement, but it has engendered a host of problems in the class action context and 

caused widespread confusion and disarray in the courts. We accordingly urge the 

Subcommittee to simply abrogate the Rule in its entirety. 

                                                            

16 Compare Johnson, 276 F.R.D. 330, 331 (D. Minn. 2011); Stewart v. Cheek & Zeehandelar, 

LLP, 252 F.R.D. 384, 384 (S.D. Ohio 2008), and Zeigenfuse v. Apex Asset Mgmt., L.L.C., 239 

F.R.D. 400, 403 (E.D. Pa. 2006) (granting motions to strike), with White v. Ally Fin. Inc., 2012 

WL 2994302, at *3-*4 (S.D. W.Va. July 20, 2012) (“With nothing to strike, the issue of whether 

a Rule 68 offer is appropriate in the context of Rule 23 is not ripe.”); Stovall v. SunTrust Mortg., 

Inc., 2011 WL 4402680, at *5 (D. Md. Sept. 20, 2011) (refusing to “strike a matter that is not a 

part of the record and indeed cannot properly be admitted to the record except in a proceeding to 

determine costs”), and Buechler v. Keyco, Inc., 2010 WL 1664226, at *3 (D. Md. Apr. 22, 2010) 

(“The question whether the rejection of a Rule 68 offer warrants imposition of costs is not ripe 

until a request for costs is made.”).
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23

gifts or charitable trusts intended for purposes that can no longer be carried out. 

Examples include instances where the purpose has been achieved (such as a cure 

being found for a disease); where the organizational recipient no longer exists; and 

where the purpose has become illegal (such as a trust supporting a racially 

segregated public space). In such contexts, courts allocate the property to a use “as 

near as possible” to the original intended recipient or purpose. 

In the class action context, the use of cy pres distributions to deal with class 

funds that cannot be distributed to the class is well-established and widespread. 

Federal courts have been making cy pres distributions for more than 40 years. See, 

e.g., Miller v. Steinbach, Fed. Sec. L. Rep. P. 94, 350, 1974 WL 350, at *1 

(S.D.N.Y. Jan. 3, 1974). And every federal court of appeals to have encountered 

the question regards cy pres as an appropriate way to dispense with fund recovered 

by the class where the factors discussed in our proposed amendment to Rule 23 

have been satisfied.17 In those circuits that have not yet weighed in, the district 

courts nevertheless routinely approve class action settlements that provide for cy 

pres distributions.18 

A number of treatises have recognized the growing consensus among courts 

that cy pres distribution is the most appropriate tool for dealing with class funds 

that cannot be distributed to class members. Those treatises have incorporated the 

court-identified best practices into their texts. See 4 Newberg on Class Actions 

§§ 12:14, :26, :27, :28, :32, :33, :34 (5th ed. 2013); American Law Institute, 

Principles of the Law of Aggregate Litigation § 3.07 (hereinafter “ALI 

Principles”); National Association of Consumer Advocates, Standards and 

                                                            

17 In re Lupron Mktg. & Sales Practices Litig., 677 F.3d 21 (1st Cir. 2012); In re Holocaust 

Victim Assets Litig., 424 F.3d 158 (2d Cir. 2005); In re Baby Products Antitrust Litig., 708 F.3d 

163 (3d Cir. 2013); Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468 (5th Cir. 2011); Hughes v. 

Kore of Ind. Enter., Inc., 731 F.3d 672 (7th Cir. 2013); In re BankAmerica Corp. Secs. Litig., 775 

F.3d 1060 (8th Cir. 2015); Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012); Nelson v. Mead 

Johnson & Johnson Co., 484 Fed. App’x 429 (11th Cir. 2012) (unpublished); Nelson v. Greater 

Gadsden Housing Auth., 802 F.2d 405 (11th Cir. 1986); Democratic Cent. Comm. of District of 

Columbia v. Washington Metro. Area Transit Comm’n, 84 F.3d 451 (D.C. Cir. 1996).

18 See, e.g., Decohen v. Abbasi, LLC, 299 F.R.D. 469 (D. Md. 2014); Domonoske v. Bank of Am., 

N.A., 790 F. Supp. 2d 466 (W.D. Va. 2011); Stinson v. Delta Mgmt. Assocs., Inc., 302 F.R.D. 

160 (S.D. Ohio 2014); Lessard v. City of Allen Park, 470 F. Supp. 2d 781 (E.D. Mich. 2007); In 

re Crocs, Inc. Secs. Litig., ___F.R.D.___, Fed. Sec. L. Rep. P 89, 2014 WL 4651967 (D. Colo. 

Sept. 18, 2014); In re Dep’t of Energy Stripper Well Exemption Litig., 578 F. Supp. 586 (D. Kan. 

1983). 
24

Guidelines for Litigating and Settling Consumer Class Actions, 299 F.R.D. 160, 

Guideline 7, Cy Pres Awards (3d ed. 2014) (hereinafter “NACA Guidelines”).19 

In particular, federal courts and treatises have recognized that, where 

distribution or redistribution to members of the class is not feasible, cy pres

distribution is generally superior to the other options for dispensing with class 

funds: reversion to the defendant and escheat to the state. To begin, well-executed 

cy pres distribution is appropriate because, when directly compensating class 

members is not feasible, cy pres distribution indirectly benefits the class in a way 

that furthers the purposes of the lawsuit. In other words, it is as close as parties and 

courts can come to providing individual relief to injured class members, the 

primary goal of any good-faith class action settlement or judgment. See Klier, 658 

F.3d at 475; ALI Principles § 3.07 cmt. b.20

The other options, meanwhile, bear no connection to the purposes of the 

lawsuit or to the class members the recovered funds are meant to benefit. 

Reversion of the funds to the defendant is particularly problematic. First, because 

the defendant ends up with the money, reversion fails to hold the defendant liable 

for the illegal conduct giving rise to the suit and fails to deter the illegal conduct 

sought to be prohibited by the suit’s legal basis—two of the core purposes of class 

actions. See Hughes, 731 F.3d at 677 (discussing deterrence); In re Baby Products, 

708 F.3d at 172 (same); ALI Principles § 3.07 cmt. b. In contrast, cy pres

“prevent[s] the defendant from walking away from the litigation scot-free because 

of the infeasibility of distributing the proceeds of the settlement (or of the 

judgment . . .).” Hughes, 731 F.3d at 676. 

Second, reversion fails to benefit the class in any way, directly or indirectly. 

The class fund is meant to compensate the class for its injuries, and it is the 

compensation that the defendant has been ordered to or pay or has agreed to pay in 

exchange for settling the case. Reversion takes that compensation—compensation 

“generated by the value of the class members’ claims”—away from the class, 

whereas cy pres distribution uses that compensation to benefit class members, 

albeit indirectly. Klier, 658 F.3d at 474 (class fund proceeds “belong solely to the 

                                                            

19 “Courts have generally agreed with the ALI Principles[,]” and cite to them frequently. In re 

Lupron, 677 F.3d at 33. 

20 A number of states statutes require courts to dispense with unclaimed class funds in a 

particular way, such as by a cy pres distribution to an organization whose mission relates to the 

purpose of the lawsuit or to legal aid organizations. See, e.g., Cal. Civ. Proc. Code § 384(d). See 

also Newberg on Class Actions §§ 12:28, :35. If any such state statute applies in federal court, of 

course it would govern. 
class me

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26

Redish (and a few others) argue that court-distributed cy pres violates 

Article III and the constitutional separation of powers. First, the argument goes, cy 

pres distribution is contrary to the Article III case-or-controversy requirement 

because it introduces an uninjured party into the litigation (the potential cy pres

recipient) that lacks any real dispute with either party. In so doing, it is argued, the 

inclusion of a cy pres distribution changes what is supposed to be a bilateral 

process between two parties with a genuine case or controversy into a trilateral 

process without any true case or controversy. See id. at 641-43. The court then 

awards “damages” to the uninjured third party, allegedly in contravention of 

Article III. This award of “damages” (they say) is also contrary to the 

constitutional separation of powers because it is beyond the scope of the judicial 

power to transfer money and make charitable donations that are not authorized by 

substantive law. Id. 

That cy pres distributions are “damages” not authorized by the underlying 

law is also the basis for the critics’ argument that, assuming cy pres distribution is 

consistent with Rule 23, cy pres is illegal because it violates the Rules Enabling 

Act by altering substantive law about available remedies. 

We believe that none of these concerns has merit. As members of the 

defense bar have pointed out, the view that cy pres distributions are contrary to 

Article III’s case-or-controversy requirement ignores what actually takes place 

during the resolution of a class action cases—a process that usually involves 

settlement. Wilber H. Boies, et al., Class Action Settlement Residue and Cy pres 

Awards: Emerging Problems and Practical Solutions, 21 VA. J. SOC. POL’Y & L.

267, 271 (2014). When the parties enter into a settlement that provides for a cy pres

distribution, the court’s role is to review the settlement agreement—including the 

cy pres distribution—for fairness to the class. Rule 23(e)(2); In re Baby Products, 

708 F.3d at 173; Dennis v. Kellogg Co., 697 F.3d 858, 861 (9th Cir. 2012). 

Whether the cy pres distribution takes place as part of a settlement or is courtordered, the purpose of the distribution is to benefit indirectly (“as near as 

possible”) those class members who cannot benefit directly. In either circumstance, 

the only interests that matter to the court’s analysis are the parties between which 

there is a dispute—not the interests of the potential cy pres recipient(s). The cy 

pres recipients should only be approved if the award would be beneficial to the 

class or its goal in bringing the lawsuit. Because the legal dispute being addressed 

and resolved is the dispute between the parties, it is only the parties’ interests that 

are taken into consideration in approving a cy pres distribution. Therefore, Article 

III’s case-or-controversy requirement is fully satisfied. 
N

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28

courts to consider when determining whether a particular cy pres distribution is 

appropriate: whether it is reasonable to redistribute funds to identifiable, reachable 

class members; whether the cy pres recipient has a sufficient nexus to the litigation 

in both subject matter and geography; and whether the defendant retains control 

over or benefits from the cy pres funds. The proposed amendment to Rule 23 seeks 

to make explicit and uniform those best practices that the courts have already 

identified and are already applying to proposed class action settlements that come 

before them. 

Despite the overall acceptance of cy pres distribution and the factors that 

ought to be considered in approving cy pres distributions, explicitly sanctioning the 

appropriate use of cy pres distributions and articulating those factors remains 

important. As Chief Justice Roberts has pointed out, the U.S. Supreme Court has 

never addressed the issue, and there is, as of yet, no binding, national statement 

regarding cy pres distributions—including whether and when they are appropriate. 

Marek v. Lane, 134 S. Ct. 8 (2013) (statement of Roberts, C.J., respecting the 

denial of certiorari). And as discussed above, regardless of the overall acceptance 

of cy pres distribution in the courts, there are several outspoken critics whose 

views will continue to fuel litigation about cy pres distribution until the matter is 

definitively closed. Codifying the cy pres tool and the best practices for using it 

would put an end to any remaining uncertainty about cy pres distribution, eliminate 

litigation questioning threshold cy pres issues, provide binding guidance to courts 

in those circuits that have not yet addressed cy pres distributions, and, as discussed 

in detail below, prevent misuses of the cy pres tool. 

1. Is Distribution or Redistribution Reasonable and 

Appropriate? 

This factor goes to whether any cy pres distribution is appropriate, or 

whether the funds ought to be distributed or redistributed to those members of the 

class to whom compensation can be gotten. The accompanying note should make 

clear that where it is feasible to do so, class funds should initially go to members of 

the class, rather than be part of a cy pres distribution. See In re BankAmerica 

Corp., 2015 WL 110334, at *2; In re Baby Products, 708 F.3d at 173; ALI 

Principles § 3.07(a), (b) & cmt. b. The view that class members have priority over 

the class funds aligns with the purposes of the class action: It ensures that 

individuals injured by the defendant’s illegal conduct are awarded damages, and it 

does so in the most direct way possible. 

The accompanying note should also make clear that redistribution to class 

members who already received compensation may be appropriate under some 
29

circumstances even though additional distribution would compensate class 

members beyond the terms of the original distribution. In practice, class actions, 

particularly those that end in settlement, rarely compensate class members for 

100% of their injuries, and even those that do may not compensate class members 

for other available remedies, such as treble damages or pain and suffering. See In 

re Baby Products, 708 F.3d at 176 (discussing how the negotiated $5 refund to 

class members was done in exchange for the release of claims and was not an 

attempt to fully compensate class members for their injuries); Klier, 658 F.3d at 

474 (“few settlements award 100 percent of a class member’s losses”) (quoting 

ALI Principles § 3.07 cmt. b.). 

Finally, this factor means that where it is not reasonable to distribute class 

funds to class members, cy pres distributions are appropriate, either at the outset or 

because there is money remaining after one or more rounds of distribution. See 

Hughes, 731 F.3d at 677 (cy pres-only settlements may be appropriate because 

they serve the important deterrent purpose of class actions); NACA Guidelines, 

299 F.R.D. 160, Guideline 7. That includes situations in which no distribution to 

the class is possible because the size of the class is large enough and the fund small 

enough that the administrative expenses of distribution would effectively swallow 

the fund or that the amount given to each class member would be so small as to be 

meaningless. See, e.g., Hughes, 731 F.3d at 675 (cy pres distribution is likely best 

solution where maximum liability per class member was $3.57); Nachshin v. AOL, 

LLC, 663 F.3d 1034, 1037, 1039 (9th Cir. 2011) (where maximum liability was $2 

million and the class included 66 million individuals, individual distribution was 

cost-prohibitive and cy pres distribution appropriate). Such a situation might arise 

where a defendant engaged in widespread illegal conduct that only caused de 

minimus damages to each class member. See id.; Boies, supra, at 285.

2. Nexus: Is the Award Consistent with the Goal of the 

Litigation? 

This is the first of two factors that go to the question whether the cy pres

distribution truly is “as near as possible” to the purposes of the underlying lawsuit 

and whether it will indirectly benefit the class. The two nexus-related factors 

reflect, among other things, the courts’ response to the concern that cy pres

distributions are abused to reward the favorite charity of the judge, counsel, or 

party. 

The accompanying comments should explain that, in deciding whether to 

approve a cy pres recipient, a court should consider whether the award would 

further the purposes of the litigation or the enforcement of the underlying 
30

substantive statute or common law. See, e.g., Dennis, 697 F.3d at 865; In re 

Lupron, 677 F.3d at 33; Nachshin, 663 F.3d at 1038-39; In re Airline Ticket 

Comm’n Antitrust Litig., 307 F.3d 679, 683 (8th Cir. 2002). See also Marek, 134 S. 

Ct. 8 (presuming that some nexus is required); ALI Principles § 3.07(c) & cmt. b; 

NACA Guidelines, 299 F.R.D. 160, Guideline 7. For example, the Ninth Circuit 

held that there was an insufficient nexus between a false advertising claim 

regarding cereal and a cy pres distribution of food to charities that serve food to the 

indigent. Although the charities’ mission was a worthy cause, it did not have 

anything to do with stopping deceptive advertising. Dennis, 697 F.3d at 866-67. 

Meanwhile, a cy pres distribution to the Center for Responsible Lending, which 

works on consumer credit issues, was appropriate recipient in a Fair Credit 

Reporting Act case. Domonoske, 790 F. Supp. 2d at 471.

As indicated in the proposed amendment to Rule 23 and as the leading 

treatises have indicated, if, after diligent search, no recipient that furthers the 

purposes of the litigation or the underlying law can be found, a cy pres distribution 

to a legal services organization or other charity may be appropriate if it is in the 

public interest to do so. See ALI Principles § 3.07(c) & cmt. b.

3. Nexus: Is the Award Consistent with the Geography of the 

Class? 

This is the second factor that goes to the question of whether the cy pres

distribution indirectly benefits the class and furthers the litigation: whether the cy 

pres distribution reflects the geography of the class. See, e.g., In re BankAmerica 

Corp., 2015 WL 110334, at *5; Nachshin, 663 F.3d at 1040; NACA Guidelines, at 

41. Put simply—and as the explanatory note should state—this means that if the 

class is national in scope, so too should be the cy pres distribution. And, likewise, 

if the class is local, so too should be the cy pres distribution. See Powell v. Ga.-

Pac. Corp., 119 F.3d 703, 705 (8th Cir. 1997) (in case alleging workplace race 

discrimination at a single facility, affirming cy pres distribution benefitting black 

residents in the counties where the facility’s employees lived). For example, the 

Ninth Circuit has rejected a cy pres distribution to local Los Angeles charities in 

the context of a nationwide class. Nachshin, 663 F.3d at 1040. Meanwhile, the 

First Circuit approved a cy pres recipient which, while located in only one city, 

conducted research that would potentially benefit the entire nationwide class. In re 

Lupron, 677 F.3d at 36. This factor attempts to ensure that the class members who 

are not able to be benefited from a direct distribution have the greatest chance of 

being indirectly benefited by the cy pres distribution. 
31

The explanatory note should explain that, as with the purpose nexus, if no 

geographically matched recipient can be found after a diligent search, cy pres

distribution may still be appropriate. 

4. Does the Defendant Benefit from or Control the Funds? 

This factor is a result of the concern that cy pres distributions may be used to 

disguise what is really a reversion to the defendant. For the reasons discussed 

above—that reversion fails to hold the defendant responsible for its illegal conduct 

and fails to deliver any compensation to class members—reversion is an 

inappropriate method for dealing with the problem of class funds that cannot be 

directly distributed to class members. Class funds are property of the class, 

awarded as compensation for their injuries, and the defendant should not control 

how that property is ultimately used. 

Sometimes, this is clear on the face of the cy pres distirbution, for example, 

where the fund is used to create a charity that would have unfettered discretion to 

award money and would be controlled by a senior employee of the defendant. 

Marek v. Lane, 134 S. Ct. 8 (2013) (statement of Roberts, C.J., respecting the 

denial of certiorari). In other situations, defendants might use cy pres distributions 

in place of charitable donations they would otherwise be obligated to make—a 

situation that benefits the defendant, not the class. See NACA Guidelines, at 44. 

See also Klier, 658 F.3d at 473 (defendant proposed a cy pres recipient—a 

scholarship fund—that bore the name of the defendant). Such awards are an 

inappropriate use of funds that are meant to benefit the class members. 

# # # 

These factors represent the court-articulated best practices for cy pres 

distribution—practices designed to ensure that the class will benefit from the class 

fund and to prevent counsel and judges from simply giving money to their 

preferred charities. 
32

Respectfully submitted, 

Leslie A. Brueckner Leah M. Nicholls 

Arthur Bryant Karla Gilbride 

Public Justice, P.C. F. Paul Bland 

555 12th Street Gabriel Hopkins 

Suite 1230 Public Justice, P.C. 

Oakland, CA 94607 1825 K Street NW 

(510) 622-8155 Suite 200 

 Washington, DC 20006 

 (202) 797-8600 
Via electronic delivery to: rules_support@ao.uscourts.gov

September 8, 2015

Rule 23 Subcommittee of the Judicial Conference Advisory Committee on Civil Rules

Thurgood Marshall Building

Administrative Office of the United States Courts

One Columbus Circle NE

Washington, DC 20544

RE: Public Justice Comments on Rule 23 Subcommittee Rule Sketches

To the Members of the Advisory Committee on Civil Rules and the Rule 23

Subcommittee:

Public Justice, P.C. and the Public Justice Foundation (collectively, “Public Justice”) 

respectfully submit the following comments on the rule amendment sketches set forth in the 

Introductory Materials for the September 11 Mini-Conference on Rule 23 Issues (“Memo”).

1

We thank the Subcommittee for the opportunity to submit these comments, which focus 

on the following rule sketches: (1) Guidance on Handling Cy Pres Provisions in Class Action 

Settlements; (2) Amendment Designed to Address “Ascertainability” Within the Context of 

Class Certification; (3) Provision Regarding Issues Class Certification; and (4) Provision 

Dealing with “Pick-Off” Offers of Individual Settlement and Rule 68 Offers of Judgment. 

I. Guidance on Handling Cy Pres Provisions in Class Action Settlements.

Public Justice generally endorses the Subcommittee’s rule sketch on handling cy pres

provisions in class action settlements, subject to a few recommendations set forth below.

Public Justice’s original comments contained an extensive discussion of the need for a 

rule amendment explicitly authorizing cy pres awards, and setting forth guidelines for their 

approval. See Public Justice March 27 Comments at 21-31. Although the Subcommittee’s 

approach does not mirror Public Justice’s proposal in all respects, we believe that the draft rule 

sketch would accomplish the most important goal of our proposal, which was to clarify the 

availability of cy pres awards as a mechanism for distributing the leftover proceeds from a class 

action settlement or judgment. We do, however, have several comments with regard to certain 

aspects of the rule sketch and the accompanying draft Note.

 

1

These comments are intended to supplement Public Justice’s original suggestions for amending 

Rule 23, which were submitted on March 27, 2015. See http://www.uscourts.gov/rulespolicies/archives/suggestions/public-justice-15-cv-n. 
2

First, Public Justice urges the Subcommittee to delete the “[if authorized by law]”

language set forth in proposed Rule 23(e)(3). We believe that this language is unnecessary and 

potentially misleading. As noted in the Reporter’s Comments (Memo at 14 n.3), “like many 

other agreements included in settlements[,] cy pres provisions do not depend on...legal 

authorization, even if binding effect does depend on the court’s entry of judgment.” We agree 

with this statement. The “authorized by law” language could become a focal point for arguing 

that cy pres awards are not proper absent some form of distinct “legal authorization”—which is 

exactly the type of argument a rule change is needed to rebut. See Public Justice’s March 27 

Comments at 25-27 (discussing recent attacks on cy pres awards as illegal and/or 

unconstitutional and explaining flaws in the logic underlying such an attack). 

Second, we urge the Subcommittee not to include the bracketed phrase in proposed Rule 

23(e)(3)(B), allowing a second distribution “to class members whose claims were initially 

rejected on timeliness or other grounds.” See Memo at 15. While superficially appealing, we are 

concerned that this could inject an element of uncertainty into the second distribution process 

and perhaps cause it to drag out needlessly. In addition, there are rarely enough untimely claims 

to significantly reduce the residual, and it seems unwise to have open-ended deadlines in 

circumstances where the defendant is seeking closure. 

Third, we urge the Subcommittee not to state, in the draft Committee Note, that proposed 

Rule 23(e)(3)(C) “deals only with the rare case in which individual distributions to class 

members are not economically viable.” Memo at 17. In our experience, there is a residual in 

almost every monetary settlement—particularly those involving small individualized damages. 

Even when all individual damages can be distributed to the class, there are often leftover funds 

after the claims administrator has been compensated and all taxes have been paid. Cy pres

distributions are a perfect mechanism for dealing with such residuals, yet the draft Note may 

create a misimpression that such distributions will only be available in the “rare case.” We would 

urge that this be correctly to reflect that residuals will frequently require disposal via cy pres.

Fourth, we strongly urge the Subcommittee to delete the first full bracketed paragraph at 

the top of page 16, which states that “one alternative to cy pres treatment... might be a provision 

that any residue after the claims process should revert to the defendant which funded the 

settlement program.” Memo at 16. We believe that reversion to the defendant is a particularly 

problematic method for dealing with leftover settlement funds, for three distinct reasons. 

First, allowing reversion of funds to the defendant fails to deter the illegal conduct that 

the lawsuit sought to bring to an end—one of the core purposes of class actions. See Hughes v. 

Kore of Ind. Enter., Inc., 731 F.3d 672, 677 (7th Cir. 2013) (discussing deterrence as an objective 

of class actions); In re Baby Products Antitrust Litig., 708 F.3d 163, 172 (3d Cir. 2013) (same); 

see also ALI Principles § 3.07 cmt. b. In contrast, cy pres “prevent[s] the defendant from 

walking away from the litigation scot-free because of the infeasibility of distributing the 

proceeds of the settlement (or of the judgment . . .).” Hughes, 731 F.3d at 676.

Second, reversion fails to benefit the class in any way, directly or indirectly. The class 

fund is meant to compensate the class for its injuries. Reversion takes that compensation away 

from the class, whereas cy pres distribution uses that compensation to benefit class members, 

albeit indirectly. Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468, 474 (5th Cir. 2011).
3

Third, reversion to the defendant creates perverse incentives to minimize actual payout to 

the class. If a defendant knows it will get any funds that are not distributed to class members, it is 

incentivized to reduce the odds that class members will receive and cash their checks, via (for 

example) imposition of an overly complex claims process. See id. at n.91. Attentive courts can 

check this problem to a certain extent, but a court cannot entirely control the terms of settlement 

agreements.

In short, allowing a reversion of funds to class action defendants is dramatically at odds 

with class members’ interests and the purposes of the class action device. For all these reasons, 

Public Justice urges the Subcommittee to remove the bracketed language suggesting that 

reversion of unclaimed funds is a permissible—and possibly even equally desirable—alternative 

to cy pres. 

Further, in light of the serious problems created by a reversion of funds, we would urge 

the Subcommittee to make clear that reversion of funds to the defendant is not a permissible use 

of unclaimed settlement funds under any circumstances. It is not enough, in our view, for the 

Note to merely state that “courts should have a bias against reversionary clauses in lump fund 

class-action settlements.” Memo at 18. In our experience, the presence of a reversion provision 

in a class action settlement is always cause for grave concern, and courts should refuse to 

approve any settlement that includes such a provision. 

II. Amendment Designed to Address “Ascertainability” Within the Context

of Class Certification.

Public Justice strongly opposes the rule sketch designed to address “ascertainability” 

within the context of class certification. See Memo at 30-33. Although we appreciate the 

Subcommittee’s willingness to wade into the class certification thicket, we are concerned that 

this proposal could cause more problems than it solves. In particular, the proposal’s focus on 

“identifiability” at the class certification stage could undermine the use of Rule 23 to vindicate 

small damages claims. In addition, as explained below (at Point B), we believe that the proposal 

does not adequately address—and could exacerbate—the problems created by the approach to 

“ascertainability” adopted in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013). 

A. The Rule Sketch’s Focus on “Identifiability” at the Class Certification Stage is 

Inappropriate and Could Make it Impossible to Pursue Small Damages 

Consumer Cases. 

As written, the draft rule sketch states that “an order that certifies a class action must

define the class so that members of the class can be identified [when necessary] in [an 

administratively feasible] {a manageable} manner.” Memo at 30. 

Our concern is that this language could be misinterpreted as requiring that all members of

the class be “identifiable” at some point in the litigation, which could make it impossible to 

certify many important class actions. We appreciate and understand that the Draft Committee 

Note attempts to moderate the potential impact of the proposed rule by emphasizing (among 

other things) that identifiability is only required “when necessary” and that identification “may 

not be needed for a considerable time, if at all.” Memo at 31. See also id. at 31 (noting that other 

aspects of Rule 23 “recognize that identifying all class members may not be possible”). Even 
4

with these qualifications, however, the text of the proposal could give rise to arguments that 

“identifiability” is a certification requirement in all cases.

In our view, just as identifiability of all class members is not required for the purposes of

class notice or the crafting of a class-wide remedy, so too is identifiability not a requirement at 

the class certification stage: instead, the only requirement should be that the class be defined in 

objective terms, as we argued in our March 27 Comments.

A. The Proposal Would Not Solve the Problems Created by Carrera and Could

Actually Make Matters Worse.

Relatedly, we are concerned that the Subcommittee’s proposal does not go far enough in 

addressing and correcting the disastrous approach to “ascertainability” set forth in Carrera v. 

Bayer Corp., 727 F.3d 300 (3d Cir. 2013)—and, indeed, could be misinterpreted as actually

embracing Carrera’s approach (although we doubt that the Subcommittee intended that result). 

Public Justice’s original comments to the Subcommittee contained a lengthy discussion 

of the problems created by Carrera and progeny. See March 27 Comments at 4-11. There, we

argued that Carrera confused “ascertainability” with a requirement that class members be 

“identifiable” in an administratively feasible manner at the class certification stage. Our proposal 

urged the Subcommittee to solve the problems caused by Carrera by amending Rule 23 to 

require, at the class certification stage, that the class be definable according to objective criteria.

We further urged that the amended rule make clear, either in its text or in the accompanying 

Note, that “the ascertainability or identifiability of individual class members is not a relevant 

consideration at the class certification stage.” March 27 Comments at 5. 

Our concern is that, even with the qualifying language in the accompanying Note, the 

Subcommittee’s proposal could be read as actually endorsing Carrera’s misguided emphasis on 

identifiability at the class certification stage. Particularly troublesome is the fact that, although 

the rule merely makes identifiability a requirement “when necessary,” it does not explain when 

identifiability is, and is not, necessary and—again—does not make clear that identifiability is not 

necessary for certification of small damages cases. 

In light of these concerns, we respectfully urge the Subcommittee to not pursue the 

proposal set forth in the most recent memorandum. In our view, any focus on “identifiability” at 

the class certification stage would be a serious mistake. Instead, we would urge the 

Subcommittee to reconsider the “ascertainability” proposal set forth in Public Justice’s original 

comments, which we continue to believe that would be important and useful. 2

 

2

The Reporter’s Comment asks whether “there is a genuine prospect that the split [on the 

ascertainability issue] will be resolved by judicial decisionmaking.” Memo at 33. In our view, 

the answer is clearly no. Although some courts have squarely (and correctly) rejected Carrera, 

see Mullins v. Direct Digital, ___ F.3d ___, 2015 WL 4546159 (7th Cir. No. 15-1776, July 28, 

2015), Carrera is still the law in the Third Circuit and most courts of appeals have not yet 

weighed in. 
5

III. Issue Class Certification.

Public Justice generally endorses the Subcommittee’s proposal to clarify that Rule 

23(c)(4) permits issue classes to be certified in appropriate cases without the entire case having 

to satisfy all the requirements of Rules 23(a) and (b). See Memo at 39-41. However, in our view, 

the proposal to add an additional path for immediate appeal is unnecessary and would further 

delay the already long process of class action litigation.

A. An Amendment Clarifying the Availability of Issue Classes Would Be Both Helpful 

and Appropriate. 

Although the vast majority of courts to have interpreted Rule 23(c)(4) have done so 

correctly, there remains some confusion surrounding the Rule, and the topic continues to be 

litigated vigorously. As the Subcommittee’s comments recognize, Rule 23(c)(4) is meant to 

permit courts, where doing so would materially advance the litigation, to certify classes to 

resolve only certain issues, without regard to whether the case as a whole would meet the 

requirements of Rules 23(a) and (b). 

That reading is based on the text of the Rule itself, which states that “[w]hen appropriate, 

an action may be brought or maintained as a class action with respect to particular issues.” This 

interpretation is bolstered by the existing comment to the Rule, which states that Rule 23(c)(4) 

“recognizes that an action may be maintained as a class action as to particular issues only” and 

goes on to illustrate what that means: “For example, in a fraud or similar case the action may 

retain its ‘class’ character only through the adjudication of liability to the class; the members of 

the class may thereafter be required to come in individually and prove amounts of their 

respective claims.”

Despite the language of the Rule and associated comment, at least one federal appellate 

panel has indicated that courts may not certify an issue class unless the case as a whole satisfies 

one of the subsections in Rule 23(b). Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th 

Cir. 1996). The Castano court reasoned that, at least with regard to issue classes in cases in 

which the plaintiffs were eventually seeking damages, permitting issue-only classes would 

eviscerate Rule 23(b)(3)’s predominance requirements. Id.

Even though it is unclear whether Castano is still good law in the Fifth Circuit, see In re 

Deepwater Horizon, 739 F.3d 790, 816-17 (5th Cir. 2014), the issue continues to be litigated. For 

example, there is a case currently pending in the First Circuit involving whether a Rule 23(c)(4) 

issue class may be certified where the case as a whole does not meet the requirements for class 

certification. See In re Prograf Antitrust Litigation, No. 15-1290. There, the defendants are 

urging the First Circuit to follow Castano, in reliance on recent U.S. Supreme Court decisions 

addressing class action certification. Public Justice has filed an amicus brief in the case taking 

the contrary view. An amendment to Rule 23 making clear that true issue classes are permissible 

under appropriate circumstances would prevent this sort of dispute from erupting elsewhere. 

B. Public Justice Specifically Endorses the “Rule 23(b) Approach, Alternative 2,” 

Which Would Amend Rule 23(b) to Allow Certification of Issue Classes Without 

Meeting the Criteria of (b)(1), (2), or (3)
6

In Public Justice’s view, the “Rule 23(b) Approach, Alternative 2,” would be the most

effective of the Subcommittee’s three proposed alternatives. See Memo at 38-40.This alternative 

would amend Rule 23(b) to add a fourth category of types of class actions (issue class actions). It 

would permit a court to certify an issue class if “the court finds that the resolution of particular 

issues will materially advance the litigation, making certification with respect to those issues 

appropriate.” 

This approach recognizes that issue classes do not fit comfortably within the existing 

categories of class actions and makes clear that issue class certification does not require that the 

full case meet the criteria for Rule 23(b)(3) if it seeks damages, or for Rule 23(b)(2) if it does 

not. The sketch also properly imports the standard—“materially advance the litigation”—that 

most courts already use to decide whether an issue class should be certified. 

In Public Justice’s view, however, the bracketed language referencing the standards in 

Rule 23(b)(3) should be omitted, because issue classes may be appropriate in cases that arise in a 

Rule 23(b)(2) context, notwithstanding the ruling in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). 

See, e.g., McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 

2012) (reversing denial of class certification under (b)(2) and (c)(4) in post-Wal-Mart race 

discrimination case). As the McReynolds court explained, where a truly company-wide policy is 

being challenged, Wal-Mart does not foreclose it. 

The Subcommittee’s “Rule 23(b) Approach, Alternative 1” suffers from the same 

problem as the bracketed language in Alternative 2. By addressing Rule 23(c)(4) only in the 

predominance requirement of Rule 23(b)(3), Alternative 1 implies that issue classes are 

appropriate only in Rule 23(b)(3) contexts. Alternative 1 is also insufficient, in our view, because

although it eliminates the biggest hurdle—predominance—to Rule 23(c)(4) certification in (b)(3) 

cases, it does nothing to correct the misconception of some courts and parties that, under (c)(4), 

the case as a whole, not just the issue class, must meet all the other criteria of (b)(3) besides

predominance.

Alternative 3—the “Rule 23(c)(4) Approach”—suffers from the same problems as the 

Alternative 1. Although Public Justice supports importing into Rule 23 the judge-made standard 

that certification is appropriate if it “materially advances the litigation,” Alternative 3 does 

nothing to make clear that, to certify an issue class, the case as a whole need not meet all the 

criteria under Rule 23(b). And by referencing the Rule 23(b)(3) standards, the bracketed 

language arguably would preclude the use of (c)(4) classes in (b)(2) cases. 

C. Public Justice Opposes Amending Rule 23(f) to Allow Immediate Appeal of 

Decisions on the Merits of Issue Classes. 

Public Justice does not support amending Rule 23(f) to permit an immediate appeal of 

merits determinations on issues certified for class treatment under Rule 23(c)(4). Parties wishing 

to immediately appeal a significant threshold issue of law are already able to seek interlocutory 

appellate review under 28 U.S.C. § 1292(b). As in the rule sketch, § 1292(b) requires a 

certification from the district court and the permission of the court of appeals—thus, under the 

law as it stands, a party has an avenue for immediate appeal of a merits decision on the certified 

issue on similar terms to that in the sketch. 
7

But to the extent the proposal would provide an easier route to interlocutory appeal than 

is currently available under § 1292(b), Public Justice is concerned about injecting an additional 

mechanism for delay into the class action process. Resolution of class actions is already rife with 

delay. Creating yet another avenue for appeal could drag out the process even further, creating 

additional burdens for the litigants and the courts. We would urge the Subcommittee to avoid 

further complicating the process with an additional appeal mechanism.

III. Pick Off and Rule 68.

Public Justice fully shares the Subcommittee’s concerns about the so-called “pick-off” 

problem associated with Rule 68. In fact, in our March 27 comments, we urged the Advisory 

Committee to abolish Rule 68 altogether, as it has failed to serve its stated purpose and given rise 

to unjust and inconsistent results, particularly (but not exclusively) in the class action context. 

See Public Justice March 27 Comments at 11-20. 

As the Subcommittee has noted, however, there may not be need for any action at this 

point in light of several recent judicial developments. See Memo at 49. First, the inter-circuit 

split seem to be evaporating on this issue. See, e.g., Chapman v. First Index, Inc., ___ F.3d ___, 

2015 WL 4652878 (7th Cir. No. 14-2772, Aug. 6, 2015); Hooks v. Landmark Indus., Inc., ___ 

F.3d ___, 2015 WL 4760253 (5th Cir. No. 14-20496, Aug. 12, 2015). Second, the U.S. Supreme 

Court has recently granted review in a case that involves the Rule 68 pick-off problem. See 

Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), cert. granted, 135 S. Ct. 2311 

(2015). The Rule 68 “pick off” problem may therefore resolve itself in due course.

That aside, barring total elimination of Rule 68 (which Public Justice continues to 

endorse), we generally support the Subcommittee’s first sketch for changes to Rule 23 pertaining 

to offers of complete relief (the so-called “Cooper Approach”). See Memo at 49-50. Under this 

approach, Rule 23 would be amended to provide that “when a person sues...as a class 

representative, the action can be terminated by a tender of relief only if (A) the court has denied 

class certification and (B) the court finds that the tender affords complete relief on the 

representative’s personal claim and dismisses the claim.” Id. In our view, this proposal would 

go a long way towards eliminating the problematic practice of defendants attempting to 

“pickoff” named plaintiffs prior to class certification, in order to avoid a class action. 

We would urge the Subcommittee, however, to include a specific provision, such as that 

proposed by NCLC/NACA in its April 2015 comments, that a court should not impose any 

conditions, consequences, or costs related to an accepted offer, including any consequences 

relating to or any costs provided in Rule 68, unless the offeror also offers complete relief and/or 

allows judgment on behalf of the class defined in the complaint.

# # #

Once again, Public Justice thanks the Subcommittee for the opportunity to submit these 

comments. We greatly appreciate the opportunity to participate in this important process.
8

Respectfully submitted,

Leslie A. Brueckner

Senior Attorney

Public Justice, P.C.

555 12th Street

Suite 1230

Oakland CA 04607

(510) 622-8205

lbrueckner@publicjustice.net

September 8, 2015

Doc. No. 497019
TAB 5

COMMENTS OF

DRI: THE VOICE OF THE DEFENSE BAR
WOMBr~

CARLYLE

SANDRIDGE

&RICE

A LIMITED LIABILITY

PARTNERSHIP

5 Exchange Street

Charleston, SC 29401

Mailing Address:

Post Office Box 999

Charleston, SC 29402

Telephone: (843) 722-3400

Fax: (843) 723-7398

wwwwcsr.com

James E. Weatherholtz

Direct Dial: 843-720-4628

Direct Fax: 843-723-7398

E-mail: JWeatherholtz@wcsr.com

December 30, 2016

Rules Committee Support Office

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E., Suite 7-240

Washington, DC 20544

rebecca womeldorf(a~ao.usco~u•ts.<~o~~; Prances skillman(a),ao.uscourts.~ov

Re: Advisory Committee on Civil Rules

Dear Rules Committee Support Office:

Please accept this letter as an outline of my testimony before the committee at its meeting

in Phoenix:

1. The proposed Committee Note associated with amended Rule 23(e)(1) stating that

"[t]he decision to certify the class for purposes of settlement cannot be made until the

hearing on final approval of the proposed settlement" should be reconsidered.

2. The proposed Committee Note associated with amended Rule 23(e)(3) should be

revised to make clear that claim-in rates are not an appropriate factor for determining

whether a settlement is reasonable.

These topics will be explained in further in DRI's written materials to be submitted in

advance of the committee's final hearing in February. I look forward to seeing you in Phoenix.

Very truly yours,

WOMBLE CARLYLE SANDRIDGE &RICE

A Limited Liability Partnership

James E. Weatherholtz

JEW:mmm

CALIFORNIA / DELAWARE / GEORGIA / MARYLAND / NORTH CAROLINA / SOUTH CAROLINA / VIRGINIA / WASHINGTON D.C.
COMMENT

to the

RULE 23 SUBCOMMITTEE,

ADVISORY COMMITTEE ON CIVIL RULES

September 10, 2015

DRI: The Voice of the Defense Bar
DRI – The Voice of the Defense Bar Page 2 of 28

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ORGANIZATIONAL OVERVIEW

DRI – The Voice of the Defense Bar is pleased to provide the following comments to the Advisory 

Committee on Civil Rules’ Rule 23 Subcommittee. For more than 50 years, DRI has been the voice 

of the defense bar, advocating for 22,000 defense attorneys and corporate counsel members and 

defending the integrity of the judiciary and the civil justice system. A thought leader, DRI provides 

world-class legal education, deep expertise for policymakers, legal resources and networking 

opportunities to facilitate career and law firm growth.

In a Word

Our members defend businesses in civil suits. If a company or corporation is ever the target of such 

a suit, there is a great likelihood that one of our member attorneys will be representing them. Their 

expertise and advocacy is the best defense against a potentially ruinous, and many times frivolous, 

lawsuit.

Focus

DRI focuses on six primary areas.

• Justice: DRI strives to improve the civil justice system.

• Judicial Balance: DRI acts as a counterpoint to the plaintiffs’ bar to seek balance in the 

minds of all participants in the judicial system and in all areas of dispute resolution. 

• Education: DRI provides outstanding educational opportunities to improve the skills of the 

defense lawyer. 

• Law Practice Administration: DRI assists its members in dealing with the economic realities 

of the defense practice in an increasingly competitive legal marketplace.

• Professionalism and Ethics: DRI urges members to practice ethically and responsibly, 

keeping in mind the lawyer’s responsibilities that go beyond the interest of the client to the 

good of society as a whole.

• Expertise: DRI acts as an expert resource on legal and judicial issues for the media, 

policymakers and the general public.

Services

Seminars/Webinars: Drawing upon leading expertise in various areas of substantive law, DRI 

provides numerous outstanding Continuing Legal Education seminars and webinars each year and 

makes materials from previous years’ seminars available to its membership.

Publications: DRI produces the leading professional defense bar publications, including our flagship 

monthly journal For The Defense, In-House Defense Quarterly, and others.

Amicus Briefs: DRI regularly files amicus briefs in federal and state courts on such landmark cases 

as Dukes v. Wal-Mart; Erica John Fund v. Halliburton, Glazer v. Whirlpool, Comcast. v. Behrend, Greenwood v. 

CompuCredit Corp and others to provide guidance to the courts and advocacy on issues vital to the 

defense bar and its clients.
DRI – The Voice of the Defense Bar Page 4 of 28

Testimony: DRI provides expert testimony before legislative bodies and regulators on judicial 

reform and other issues of concern to the defense bar.

Studies: DRI provides in-depth monographs and white papers of various issues critical to the legal 

profession, on topics such as jury duty, judicial funding, and judicial independence.

Center for Law and Public Policy 

The Center for Law and Public Policy was created by DRI to provide thoughtful and expert analysis 

and commentary on issues of great import to the defense bar, the judiciary, the legal profession, and 

the country. The Center operates through three committees: Issues and Advocacy, Amicus, and 

External Policy Groups.

Because our judicial system is an adversarial system embodied in a plaintiff bar and a defense bar, 

each voice has a unique perspective. Therefore, both voices need to be heard on critical issues 

affecting DRI individual and corporate members, the civil justice system and judicial reform. DRI 

performs that function for the defense bar through its Center for Law and Public Policy.

The DRI National Poll on the Civil Justice System

DRI conducts the only annual national poll focused exclusively on the civil justice system. The poll 

surveys public opinion on such issues as trust in the judicial system, class action, potential juror bias, 

and judicial funding. All of DRI’s polls have been accepted by the Roper Center at the University of 

Connecticut, a poll repository used for scholarly research. 
DRI – The Voice of the Defense Bar Page 5 of 28

Table of Contents

I. DRI Proposal to Address “No Injury” Classes................................................................................7

II. DRI Proposal to Address Ascertainability.........................................................................................8

III. DRI Proposal to Provide for Automatic Right to Appeal of Class Certification Decisions....11

IV. DRI Proposal to Address “Shady Grove”.......................................................................................15

V. DRI Comment on Subcommittee’s Conceptual Sketch of RULE 23(B)(4) – Settlement 

Class Certification Without Predominance .....................................................................................17

VI. DRI Comment on the Subcommittee’s Conceptual Sketch Relating to Cy Pres........................21

VII. DRI Comment on Subcommittee’s Conceptual Sketch on Objectors .......................................24

VIII. DRI Comment on Subcommittee’s Conceptual Sketch on Issue Certification.........................26
DRI – The Voice of the Defense Bar Page 6 of 28

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DRI – The Voice of the Defense Bar Page 7 of 28

I. DRI Proposal to Address “No Injury” Classes

The testimony of DRI on the issue of “No Injury” Classes submitted to the House Judiciary 

Committee was summarized orally for the Rule 23 Subcommittee at the DRI Class Actions Seminar

held July 23-24, Washington, D.C. The written statement of testimony is attached, along with a list 

of DRI amicus briefs submitted in class actions and a summary of the issues in those cases. At the 

DRI Class Action Seminar, the Rule 23 Subcommittee requested DRI to submit proposed language 

changes to Rule 23(b)(3) that would address DRI’s concerns on this issue. Proposed language 

amending Rule 23(b)(3) follows:

(3) the court finds that each class representative and each proposed class member suffered 

actual injury of the same type; that the existence, type and extent of each class member’s 

injury, as well as the amount of monetary relief due each class member, can be accurately 

determined for each class member on the basis of classwide proof, without depriving the 

defendant of the ability to prove any fact or defense that defendant would be entitled to prove 

as to any class member if that class member’s claims were adjudicated in an individual trial; that

questions of law or fact common to class members predominate over any questions affecting 

only individual members, and that a class action is superior to other available methods for fairly 

and efficiently adjudicating the controversy. The matters pertinent to these findings of

predominance and superiority include:

(A) the class members’ interests in individually controlling the prosecution or defense 

of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by 

or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the 

particular forum; and

(D) the likely difficulties in managing a class action.

In order to have standing, plaintiffs must have suffered an “injury in fact.” Yet, defendants today 

face suits brought by plaintiffs who admit they have not been harmed on behalf of a proposed class 

of similarly unharmed individuals. Under current law, consumers who have suffered no harm and 

may in fact, be very happy with their purchases, can still participate in a class action suit and receive 

damage awards if the plaintiff side prevails. To participate in a class action, individuals need only 

show there was a potential for harm. 

This practice artificially inflates the size of certified classes, sometimes to millions of participants. 

When statutory damage provisions are combined with the aggregate power of the class action 

device, defendants can face significant and potentially ruinous exposure for conduct that harmed no 

one. Permitting aggregated actions by unharmed individuals places enormous pressure on 

defendants to settle claims that would be valueless if tried on an individual basis. 

The DRI National Poll on the Civil Justice System that showed that 78 percent of Americans would 

support a law requiring a showing of actual harm rather than potential harm in order for an 

individual to participate in a class action suit: Large majorities support this reform across 12 

demographic categories, including men, women, Republicans (86%), Democrats (71%), Liberals 

(73%), and Conservatives (85%).
DRI – The Voice of the Defense Bar Page 8 of 28

Large majorities of the American public find it makes little sense to pay damages to people who 

have suffered no harm. They support reform. It’s just common sense to them ... and should be to 

us.

II. DRI Proposal to Address Ascertainability

DRI proposes that Rule 23(a)(1) be changed to read as follows: 

the class is so numerous that joinder of all members is impracticable; the members 

of the class are objectively identifiable by reliable and feasible means without 

individual testimony from putative class members and without substantial 

administrative burden, and as so identified are sufficiently numerous that joinder of 

all class members is impractical;

This approach recognizes that inefficiencies and the necessity for highly individualized proof are 

precisely what class actions are meant to avoid, and if even identifying the class members devolves 

into a highly individualized or inefficient inquiry, then the objectives of the class action device 

cannot be achieved.

Recent decisions of the Sixth and Seventh Circuits have created a clear need for the ascertainability 

issue to be addressed. The case of Mullins v. Direct Digital, LLC 1 creates an acknowledged split 

between the Seventh Circuit, since joined by the Sixth Circuit,2 and the Third and Eleventh Circuits, 

among others, as to the existence and proper application of the ascertainability requirement under 

the current version of Rule 23. How this split is ultimately resolved may one day resolve the 

question of the proper interpretation of the text of the current rule, but that begs the real question: 

What should be the ascertainability prerequisites to class certification? The very fact that there is a 

debate about whether and to what extent this requirement already implicitly exists demonstrates that 

the Subcommittee should address the issue explicitly.

The Subcommittee should adopt an express ascertainability requirement that ends the debate, and 

one that recognizes that the various subsections of Rule 23(a), Rule 23(b), and Rule 23(c) are not 

mere standalone silos, but integrated parts of an procedural mechanism designed to ensure that class 

treatment is reserved for those cases in which individualized inquiry is unnecessary. 

The case for an ascertainability requirement is clear. Class actions that bog down in individualized 

inquiries and adjudications necessary to determine class membership are no less inefficient than class 

actions that bog down in individual inquiries and adjudications necessary to determine liability. 

Defendants’ due process interests and the Rules Enabling Act both require that the defendant have a 

full and fair opportunity to litigate individual issues pertaining to both. For these reasons, even in the 

absence of any express provision in Rule 23, most courts already consider ascertainability is an 

“essential” prerequisite for a class action,3 and treat it as a threshold inquiry for class certification.4

 1 Mullins v. Direct Digital, No. 15-1776 (7th Cir. July 28, 2015). 2 Rikos v. Procter & Gamble, No. 14-4088 (6th Cir. Aug. 20, 2015). 3 Marcus, 687 F.3d at 592-93. 4 EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (“We have repeatedly recognized that Rule 23 contains an 

implicit threshold requirement that the members of a proposed class be ‘readily identifiable.’”); In re Fosamax Prods. Liab. 

Litig., 248 F.R.D. 389, 395 (S.D.N.Y. 2008) (“Rule 23 contains the additional, implicit requirement that an ascertainable
DRI – The Voice of the Defense Bar Page 9 of 28

Even the leading treatise on civil procedure addresses the question before it begins its discussion of 

the express requirements of Rule 23(a).5

The Fourth Circuit has expressed what could be the explicit rule in its simplest form: “However 

phrased, the requirement is the same. A class cannot be certified unless a court can readily identify 

the class members in reference to objective criteria.”26 There is compelling evidence that this rule 

has sound footing in the overall rationale of Rule 23. Whatever their other differences, until the 

recent Sixth and Seventh Circuit decisions almost all courts had agreed that the ascertainability 

inquiry requires the court to find: (1) that it can determine whether someone is in the class using 

objective criteria;6 and (2) that there is some reliable and administratively feasible method for 

determining whether putative class members are members of the class as defined.7 The disagreement 

of the Seventh and Sixth Circuit is largely based on the absence of explicit language in the Rule itself, 

not on the soundness of the policy that an explicit ascertainability rule would reflect.

An explicit objective ascertainability rule would also reduce the problem of one-way intervention, 

also sometimes referred to as the “fail-safe” or “merits-based” class. In a fail-safe class, until the 

verdict, there is no way to tell whether the class has thousands of members or none at all. If the 

plaintiffs prove their case, then the class is populated and bound. If they do not, then the class has a 

population of zero; it never existed, which means the defendant’s “victory” is hollow because no 

absent class member is bound by the defense judgment.8 Most courts already refuse to certify 

classes with fail-safe class definitions.9 An explicit rule requiring that the class be readily and 

objectively identifiable at the time of certification prevents this unfair abuse of the class action 

device.

The concept of “ready ascertainability” focuses on administrative feasibility. The Third, Fourth, and 

Eleventh Circuits have held that, in showing that identifying class members is feasible, the plaintiffs 

must provide evidence of an actual method of objectively identifying class members in an 

 class exists and has been properly defined.”).

5See 7A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1760 at 142–47 (3d ed. 2005) 

(“Further, the class must not be defined so broadly that it encompasses individuals who have little connection with the 

claim being litigated; rather it must be restricted to individuals who are raising the same claims or defenses as the 

representative. The class definition also cannot be too amorphous.”) (Internal footnotes omitted). 6 EQT Prod. Co., 764 F.3d at 358 (“However phrased, the requirement is the same. A class cannot be certified unless a 

court can readily identify the class members in reference to objective criteria.”).

7 See Byrd v. Aaron’s, Inc., 784 F.3d 154, 163 (3d Cir. 2015). 8 Randleman v. Fidelity Nat. Title Ins. Co., 646 F. 3d 347, 352 (6th Cir. 2011) (“The class the district court initially certified 

was flawed in that it only included those who are ‘entitled to relief.’ This is an improper fail-safe class that shields the 

putative class members from receiving an adverse judgment. Either the class members win or, by virtue of losing, they 

are not in the class and, therefore, not bound by the judgment.”); Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980)

(“The new class definition, if allowed, would result in a ‘fail-safe’ class, a class which would be bound only by a judgment 

favorable to plaintiffs but not by an adverse judgment.”); Xavier v. Philip Morris USA, Inc., 787 F. Supp. 2d 1075, 1089 

(N.D. Cal 2011) (“Ascertainability is needed for properly enforcing the preclusive effect of final judgment. The class 

definition must be clear in its applicability so that it will be clear later on whose rights are merged into the judgment, that 

is, who gets the benefit of any relief and who gets the burden of any loss.”); see also Erin L. Geller, The Fail-Safe Class as an 

Independent Bar to Class Certification, 81 FORDHAM L. REV. 2769, 2803–04 (2013) (arguing that allowing fail-safe classes 

revives one-way intervention). 9 See, e.g., In re Nexium Antitrust Litig., 777 F.3d 9, 22 (1st Cir. 2015) (noting “the inappropriateness of certifying what is 

known as a ‘fail-safe class’–a class defined in terms of the legal injury”). The Fifth Circuit is the lone exception to this 

rule: it has held that the presence of a fail-safe class definition does not preclude certification. In re Rodriguez, 695 F.3d 

360, 370 (5th Cir. 2012) (“our precedent rejects the fail-safe class prohibition”).
DRI – The Voice of the Defense Bar Page 10 of 28

administratively feasible way, such as through existing corporate records.10 The Sixth and Seventh 

Circuits, however, have very recently held that ascertainability merely requires that the class be 

identifiable at some point in the litigation, even if the identification procedure is expensive, 

burdensome, or requires self-identification or individualized inquiries.11 Similarly, some federal 

district courts in California have also rejected the Third Circuit’s approach.12

If the plaintiffs cannot define their class without reference to the merits, or if they do not have any 

feasible way of identifying class members for purposes of sending notice in advance of litigation, the 

class should not be certified. Class actions are not the goal, and they should not be the rule. They 

are the “exception” to the normal due process expectation “that litigation is conducted by and on 

behalf of the individual named parties only.”13, and make sense when they can efficiently achieve 

collective adjudication. There is no reason that inefficiencies in the class identification process 

should militate any less against class certification than inefficiencies in the adjudication of liability.

“Administrative burden” does not mean that any evidentiary inquiry into identifiability would 

necessarily defeat certification.14 But it does mean that any individual or third party inquiries 

necessary to establish membership in the class should be tolerated only if they inject minimal 

inefficiency into the class adjudication process. If the inquiry requires separate analysis for each and 

every class member, vast numbers of affidavits or third party subpoenas, or checking multiple 

records and deciding multiple legal issues for large segments of the class, the burden is too great.15 

Nor is self-identification an appropriate short-cut to ascertainability. Given both the potential 

discovery burdens and the due process concerns associated with self-identification (through, say, 

affidavits) without affording the defendant a right of cross-examination, and the inefficiencies of 

allowing such cross-examination, courts have generally held that self-identification imposes too large 

 10 Carrera v. Bayer Corp., 727 F.3d 300, 308–09 (3d Cir. 2013) (class not ascertainable where it would rely on purchase 

receipts that were likely not retained); EQT Prod. Co., 764 F.3d at 357 (plaintiff “must present evidence that the putative 

class complies with Rule 23”); Karhu v. Vital Pharms., Inc., 2015 U.S. App. LEXIS 9576, *6-7 (11th Cir. Jun. 9, 2015) (“A 

plaintiff cannot establish ascertainability simply by asserting that class members can be identified using the defendant's 

records; the plaintiff must also establish that the records are in fact useful for identification purposes, and that 

identification will be administratively feasible.”); EQT Prod. Co., 764 F.3d at 359 (“As the record in this case highlights, 

numerous heirship, intestacy, and title-defect issues plague many of the potential class members' claims to the gas estate. 

In our view, these complications pose a significant administrative barrier to ascertaining the ownership classes.”).

11 Mullins v. Direct Digital, LLC, No. 15-1776 (7th Cir. Jul. 28, 2015) (slip op.) (“Nothing in Rule 23 mentions or implies 

this heightened requirement under Rule 23(b)(3), which has the effect of skewing the balance that district courts must 

strike when deciding whether to certify classes”); Rikos v. Procter & Gamble Co., No. 14-4088 (6th Cir. Aug. 20, 2015) slip 

op. at 33 (“We see no reason to follow Carrera, particularly given the strong criticism it has attracted from other 

courts.”).

12 In re ConAgra Foods, Inc., 2015 U.S. Dist. LEXIS 24971, *93 (C.D. Cal. Feb. 23, 2015) (rejecting administrative burden 

argument because it would “effectively prohibit class actions involving low priced consumer goods—the very type of 

claims that would not be filed individually—thereby upending the policy at the very core of the class action 

mechanism.”) (Internal quotation omitted); see also Randolph, 303 F.R.D. at 686 (noting “[c]ertain California district courts 

have vehemently rejected Carrera”). 13 Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2550 (2011). 14 Bowerman v. Field Asset Servs., Inc., 2015 U.S. Dist. LEXIS 37988, *22 (N.D. Cal. Mar. 24, 2015) (“That the class may 

have to be ascertained through a combination of evidentiary sources does not necessarily mean that ascertaining it is 

administratively infeasible.”).

15 EQT Prod. Co., 764 F.3d at 359 (“As the record in this case highlights, numerous heirship, intestacy, and title-defect 

issues plague many of the potential class members' claims to the gas estate. In our view, these complications pose a 

significant administrative barrier to ascertaining the ownership classes.”).
DRI – The Voice of the Defense Bar Page 11 of 28

a burden to justify certifying a class.16 Similarly, offloading the administrative burden to third parties 

through the creative use of the subpoena power should not be an acceptable substitute.17

Finally, a strong ascertainability requirement would also indirectly reduce the need to resort to cy pres 

remedies, another problem the Subcommittee is examining. The so-called need for cy pres relief most 

often arises when the parties cannot readily identify the members of the class. Were Rule 23 to 

explicitly require that a court find it is possible to readily and objectively identify class members, the 

need for this controversial form of relief would diminish, as would the problems and abuses 

associated with it.18 

III. DRI Proposal to Provide for Automatic Right to Appeal of Class Certification 

Decisions

Decisions on class certification motions should be subject to immediate and 

mandatory appellate review.

DRI proposes that Rule 23(f) be amended to provide for mandatory appellate review of certification 

decisions. “[W]hen a trial court commits an error of law that has an outsized impact, the availability 

of immediate appellate review should not depend on the subjective value judgments of a single 

appellate panel deciding a petition for discretionary review.” Andrew S. Pollis, The Need for NonDiscretionary Interlocutory Appellate Review in Multidistrict Litigation, 79 Fordham L. Rev. 1643, 1662 

(2011). Although we are sensitive to the workload of our federal appellate judges, we believe that 

the practical effect of the current discretionary appellate review regime effectively deprives parties of 

appellate review of what is generally considered the seminal decision in class action litigation. DRI 

proposes amending that Rule to provide as follows:

(f) APPEALS. A party may obtain interlocutory appellate review of an order court of 

appeals may permit an appeal from an order granting or denying class-action 

certification under this rule, provided that a timely notice of appeal of such order is if 

a petition for permission to appeal is filed with the circuit clerk within 14 days after 

the order is entered in accordance with Federal Rules of Appellate Procedure 3 and 

4. An appeal does not stay proceedings in the district court unless the district judge 

or the court of appeals so orders.

Authority for this change exists under 28 U.S.C. § 1292(e). DRI believes this change will have a 

number of beneficial effects for all parties, as well as leading to a more efficient judicial system.

DISCUSSION

The class certification decision is generally considered the seminal event in class litigation. Jurists 

have long recognized the coercive effect of a district court’s decision to certify a class on a 

 16 Marcus, 687 F.3d at 594; Karhu, 2015 U.S. App. LEXIS 9576 at *8-9; Jenkins, 2015 U.S. Dist. LEXIS 22241 at *15. 17 Randolph, 303 F.R.D. at 690 (rejecting suggestion that plaintiffs could subpoena third-party retailers to determine 

purchasers of cooking oil); In re Clorox Consumer Litig., 301 F.R.D. 436, 440 (N.D. Cal. 2014) (“In a consumer class 

action, like this one, where Plaintiffs intend to rely on retailer records, Plaintiffs must produce sufficient evidence to 

show that such records can be used to identify class members."”).

18 See generally Martin H. Redish, et al., Cy Pres Relief & the Pathologies of the Modern Class Action: A Normative and Empirical 

Analysis, 62 FLA. L. REV. 617, 623 (2010).
DRI – The Voice of the Defense Bar Page 12 of 28

defendant’s decision to settle the case rather than risk a bet-the-company trial. See, Charles Silver, 

“We’re Scared To Death”: Class Certification and Blackmail, 78 New York University Law Review 1357 

(1978). Indeed, the Advisory Committee for the 1998 Amendments to the Federal Rules of Civil 

Procedure which added Rule 23(f)’s discretionary appellate review provision noted that:

[S]everal concerns justify expansion of present opportunities to appeal. An order 

denying certification may confront the plaintiff with a situation in which the only 

sure path to appellate review is by proceeding to final judgment on the merits of an 

individual claim that, standing alone, is far smaller than the costs of litigation. An 

order granting certification, on the other hand, may force a defendant to settle rather 

than incur the costs of defending a class action and run the risk of potentially 

ruinous liability.

These concerns – which affect all parties to the case – can only be addressed if the parties actually 

obtain appellate review. As we will discuss, placing certification appeals under the permissive 

appellate procedure as opposed to the appeal as of right procedure has effectively foreclosed that 

review in too many circumstances.

A petition for a discretionary appeal of a certification decision must be filed within 14 days of the 

order from which review is sought, F.R.Civ.P. 23(f), with the contents of it as set by Rule 4(b) of the 

Federal Rules of Appellate Procedure. In contrast, an appeal as of right need only be noticed within 

30 days, F.R.App.P. 4(a), which allows the party seeking appellate relief significantly more breathing 

space to review and prepare the appropriate challenge to the district court’s certification decision.

In addition, whereas a mandatory appeal allows for full consideration of the questions presented, 

there are varying standards as to whether a circuit court will even grant permission. The Manual for 

Complex Litigation states that a “rough consensus” has emerged which limits interlocutory review 

of class certification decisions to situations where one or more of the following factors are evident: 

“(1) the certification order represents the death knell of the litigation for either the plaintiffs (who 

may not be able to proceed without certification) or defendant (who may be compelled to settle after 

certification; (2) the certification decision shows a substantial weakness, amounting to an abuse of 

discretion; or (3) an interlocutory appeal will resolve an unsettled legal issue that is central to the case 

and intrinsically import to other cases but is otherwise likely to escape review.” David E. Herr, 

Manual for Complex Litigation (4th), § 21.28 at 314 (2005). 

While those factors are definitely an improvement over no right to appeal, a recent study conducted 

by Skadden Arps on behalf of the Institute for Legal Reform looked at Rule 23(f) filings from 

October of 2006 through December of 2013. See, Rule 23(f) Review of Certification Declining; 

Certification Disfavored on Appeal, Study Says, Class Action Litigation Report (BNA May 2, 2014) with the 

underlying data found at http://www.skadden.com/newsletters/OUTCOMES_TABLE.pdf ,

19 (last 

accessed September 8, 2015). That study found that less than one quarter of petitions for 

interlocutory review under Rule 23(f) have been granted. 

 19 See Summary Tables of 23(f) on the following page. 
DRI – The Voice of the Defense Bar Page 13 of 28

Appendix A

Appendix B
DRI – The Voice of the Defense Bar Page 14 of 28

Of those petitions, review was granted in 24.8% of defendant petitions and 20.5% of plaintiff 

petitions. In contrast, an earlier study found that overall 36% of Rule 23(f) petitions were granted 

from December 1, 1998 through October 30, 2006, with 45% of defendant petitions and 22% of 

plaintiff petitions being granted. Barry Sullivan and Amy Kobelski Trueblood, Rule 23(f): 

A Note on Law and Discretion in the Courts of Appeals, 246 F.R.D. 277 (2008). In other words, the 

Courts of Appeals are becoming less receptive to interlocutory class certification review.

The study further showed that, as of its closing date, the overwhelming majority of granted petitions 

resulted in the reversal of a decision to certify a class (55 reversed, 24 affirmed at least in part) while 

the majority of class certification denials were affirmed (30 affirmed, 20 reversed). The study also 

showed great variation among the Circuits in the grant ranged from 5.4% in the First Circuit (only 2 

grants out of 37 decisions on a Rule 23(f) petition) to 46.4% in the Fifth Circuit (13 grants out of 28

decisions of a Rule 23(f) petition).

DRI believes that these numbers suggest that – at least from the defendant’s perspective – the 

promise that Rule 23(f) would reduce settlement pressure has not been met because the bulk of class 

certification decisions evade interlocutory review requiring the defendant to try a case involving a 

certified class to verdict in order to obtain review. We further believe that appellate review of class 

certifications decision is important precisely because of the burdens a certification decision can place 

on a defendant. See, Richard A. Nagareda, Class Certification In The Age Of Aggregate Proof, 84 

N.Y.U.L.Rev. 97, 104 (2009) (highlighting the considerable room for “appellate oversight of class 

certification determinations, with the appellate courts cast in their familiar role of de novo 

reviewers...”). But as the 1998 Advisory Committee noted, the burdens placed on parties by an 

erroneous certification decision cut both ways. 

As a result, we believe that Rule 23(f) should be amended to provide for mandatory appellate review 

of class certification decisions as described above. This proposal will:

(1) Ensure that what is often the most important legal determination in the case 

will not escape appellate review because of the pressure to settle. Rule 23 is, 

after all, a procedural device and a defendant’s right to seek review of the 

procedural decision to certify a class should not be effectively eliminated by 

requiring a trial to final judgment in order have an erroneous certification 

decision reviewed.

(2) Ensure that the settlements that do occur are not mispriced as a result of 

uncertainty over the soundness of the district court’s decision. See, Pollis at 

1673-74.

(3) Avoid any uncertainty over the availability of Supreme Court review of 

certification decisions such as those raised by the denial of a discretionary 

appeals as discussed in Dart Cherokee Basin Operating Company, LLC v. Owens,

135 S.Ct. 547 (2014).
DRI – The Voice of the Defense Bar Page 15 of 28

IV. DRI Proposal to Address “Shady Grove”

Section IV. addresses the issues created by the Supreme Court’s decision in Shady Grove Orthopedic 

Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010).

BACKGROUND

In Shady Grove Orthopedics Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393, 397 (2010), Shady 

Grove, a medical provider, brought a class action suit against Allstate for its refusal to pay interest 

on overdue benefits. Shady Grove alleged that it had treated Sonia E. Galvez for injuries she 

suffered in an automobile accident, and as partial payment for the care, Galvez had assigned Shady 

Grove her rights to insurance benefits under a policy issued in New York by Allstate. Id. Shady 

Grove tendered a claim for the assigned benefits to Allstate. Id. Under New York law, Allstate had 

30 days to pay the claim or deny it. Id. According to Shady Grove, Allstate’s payment on the claim 

was untimely and it refused to pay the statutory interest that accrued on the overdue benefits. Id.

Shady Grove filed a diversity suit in the Eastern District of New York to recover the unpaid 

statutory interest. Id. The District Court dismissed the suit, however, for lack of jurisdiction, 

reasoning that N.Y. Civ. Prac. Law Ann. § 901(b), which precludes a suit to recover a “penalty” 

from proceeding as a class action, applies in diversity suits in federal court, despite Federal Rule of 

Civil Procedure 23. Id. The District Court found that the statutory interest owed by Allstate was a 

“penalty” under New York law and thus the class action was prohibited by § 901(b). Id. And, 

because Shady Grove’s individual claim fell short of the amount in controversy requirement, the 

District Court held that subject matter jurisdiction was lacking and the case should be remanded to 

state court. Id. The Second Circuit affirmed, holding that § 901(b) was substantive within the 

meaning of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), and thus must be applied by a federal court 

sitting in diversity. Id. at 398.

The Supreme Court, in a plurality opinion,20 reversed the decision of the Second Circuit, holding 

that § 901(b) does not preclude a federal district court sitting in diversity from entertaining a class 

action under Rule 23. Id. at 416. A majority of the Court held that if Rule 23 answers the question 

in dispute, it governs unless it exceeds its statutory authorization or Congress’s rulemaking power. 

Id. at 398. The Court found that Rule 23(b) answered the question in dispute – whether Shady 

Grove’s suit may proceed as a class action – because it stated that “[a] class action may be 

maintained” if certain conditions are met. Id. Because § 901(b) attempted to answer the same 

question, in stating that Shady Grove’s suit “may not be maintained as a class action” because of the 

relief it seeks, the Court held that § 901(b) cannot apply in diversity suits unless Rule 23 is ultra vires. 

Id. at 399.

 20 Only Parts I and II-A of Justice Scalia's opinion reflect the views of a five-person majority. Part I describes the case 

and the basic question presented, see id. at 397-98, while Part II-A concludes that Rule 23 answered the “question in 

dispute” – whether a class action may be maintained in the case before it. Id. at 398-406. Justice Ginsburg wrote the 

dissenting opinion, in which three justices joined. Id. at 437-459.
DRI – The Voice of the Defense Bar Page 16 of 28

ANALYSIS

A. The Problem Created by the Court’s Decision in Shady Grove.

The problem created by the Supreme Court’s decision in Shady Grove was acknowledged by the 

Court itself – namely, that the holding “keep[s] the federal-court door open to class actions that 

cannot proceed in state court” and therefore “will produce forum shopping.” Shady Grove, 559 U.S. 

at 415. The holding of Shady Grove is particularly problematic because it provides no policy reason 

for treating class actions removed to federal court differently on a substantive basis than those that 

are not. As Justice Stevens noted in his concurring opinion, Justice Scalia’s broad finding that Rule 

23 “unambiguously authorizes any plaintiffs, in any federal civil proceeding, to maintain a class action 

if the Rules’ prerequisites are met”21 goes too far, allowing a federal procedural rule to “displace a 

state law that is procedural in the ordinary use of the term but is so intertwined with a state right or 

remedy that it functions to define the scope of the state-created right.” Shady Grove, 559 U.S. at 423. 

In that instance, Justice Stevens wrote, the federal procedural rule “cannot govern.” Id. Simply put, 

“[i]f a district court follows Justice Scalia's approach, then the decision to remove a putative class 

action to federal court would result in the loss of the very grounds – a state law prohibiting class 

certification – that would otherwise defeat class certification in state court.” Martin A. Stern & 

Taylor E. Brett, Removal of Class Actions: What Danger Lurks in Shady Grove, 82 Def. Couns. J. 161, 162 

(April 2015).22

B. The Reasoning Behind the Proposed Change to Rule 23.

Justice Scalia’s own language suggests a necessary change to Rule 23 to resolve the issue posed by 

Shady Grove:

Allstate asserts that Rule 23 neither explicitly nor implicitly empowers a federal court 

“to certify a class in each and every case” where the Rule’s criteria are met. But that 

is exactly what Rule 23 does: It says that if the prescribed preconditions are satisfied 

“[a] class action may be maintained”-- not “a class action may be permitted.” Courts 

do not maintain actions; litigants do. The discretion suggested by Rule 23’s “may” is 

discretion residing in the plaintiff: He may bring his claim in a class action if he 

wishes. And like the rest of the Federal Rules of Civil Procedure, Rule 23 

automatically applies “in all civil actions and proceedings in the United States district 

courts.” Shady Grove, 559 U.S. at 399-400.

 21 Shady Grove, 559 U.S. at 406. 22 Moreover, the Shady Grove decision appears to be in tension with a long line of cases holding that whether to certify a 

class is within the discretion of the court. See, e.g., Califano v. Yamasaki, 442 U.S. 682, 703 (1979) (“The certification of a 

nationwide class, like most issues arising under Rule 23, is committed in the first instance to the discretion of the district 

court. On the facts of this case, we cannot conclude that the District Court . . . abused that discretion . . . .”); Prof’l 

Firefighters Assn. of Omaha, Local 385 v. Zalewski, 678 F.3d 640, 645 (8th Cir. 2012) (“The district court is accorded broad 

discretion to decide whether certification is appropriate, and we will reverse only for abuse of that discretion.”); In re 

Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 678 F.3d 409, 416 (6th Cir. 2012) (“The district court has broad 

discretion to decide whether to certify a class . . . . We review class certification for an abuse of discretion.” (Citation

omitted)); In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir. 2004); Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th 

Cir. 2001) (noting the norm that the district court has “broad discretion” to certify class); Hartman v. Duffy, 19 F.3d 1459, 

1471 (D.C. Cir. 1994). See also William Hubbard, Optimal Class Size, Dukes, and the Funny Thing About Shady Grove, 62 

DePaul L. Rev. 693, 707-09 (Spring 2013).
DRI – The Voice of the Defense Bar Page 17 of 28

In other words, Justice Scalia’s interpretation of Rule 23’s mandatory application hinges on the 

language in Rule 23(b) that vests discretion with the plaintiff rather than the Court. If the language 

is revised to vest discretion with the Court, then Rule 23 no longer acts as “categorical rule entitling 

a plaintiff whose suit meets the specified criteria to pursue his claim as a class action,”23 and there is 

no direct conflict between the federal rule and state statutes that limit a plaintiff’s ability to 

“maintain” a class action.

Moreover, a further change to Rule 23 that would prohibit the certification of class actions where 

the underlying state statute on which the plaintiff bases its claims specifically disallows aggregate 

relief would alleviate forum shopping and related concerns that flow from the disparate treatment of 

such cases that are removed to federal court. Such an amendment would follow Justice Stevens’s 

opinion that state laws that limit a plaintiff's ability to bring a class action are not preempted by Rule 

23 if 1) the limiting provision is found within the text of a state statute that confers a substantive 

right and 2) applies only to cases brought under the statute.

PROPOSED CHANGES TO RULE 23 TO ADDRESS SHADY GROVE

Thus, to address the problems posed by the Court’s decision in Shady Grove, the following changes 

are suggested to Federal Rule of Civil Procedure 23:

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties 

on behalf of all members only if: 

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or 

defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class; 

and

(5) the action is not brought under a state statute that (i) confers a substantive right; and 

(ii) prohibits recovery of class actions under the statute.

(b) TYPES OF CLASS ACTIONS. A class action may be maintained permitted if Rule 23(a) is 

satisfied and if: . . . .

V. DRI Comment on Subcommittee’s Conceptual Sketch of RULE 23(B)(4) –

Settlement Class Certification Without Predominance

The DRI opposes the proposed addition of the new category of certifiable class actions reflected in 

the proposed Rule 23(b)(4). While it might make cases easier to settle on a class action basis, that is 

not a valid goal of the rules of procedure where the case is not otherwise deserving of class 

treatment. There is no good policy reason for a rule providing that claims which are too 

individualized to be certified as a class for litigation purposes is nevertheless certifiable as a class for 

settlement purposes. Moreover, the risks and unintended consequences of such a change would be 

significant and highly undesirable. 

 23 Shady Grove, 559 U.S. at 398.
DRI – The Voice of the Defense Bar Page 18 of 28

By definition, what this proposal seeks to do is to enable the classwide settlement of cases in which 

individualized issues predominate, and foreclose consideration of those overriding individual 

differences in the settlement certification process. Such a rule, however, would present serious 

Constitutional concerns given the United States Supreme Court’s past indications that ignoring 

individual differences has Constitutional implications. See, e.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 

846 (1999) (quoting Martin v. Wilks, 490 U.S. 755, 762 (1989)); Wal-Mart Stores, Inc. v. Dukes, — U.S. 

—, 131 S. Ct. 2541, 2561 (2011); Hansberry v. Lee, 311 U.S. 32, 44-45 (1940); Coe v. Armour Fertilizer 

Works, 237 U.S. 413, 423 (1915); see also Philip Morris USA, Inc. v. Scott, — U.S. —, 131 S. Ct. 1, 3-4 

(2010) (Scalia, J., in chambers) (granting a stay of the judgment and noting that fraud claims required 

proof of individual reliance, which defendants were unable to contest because the trial court relied 

on representative proof). Due process must always underlie the procedures a court applies, even 

when a case travels under the “class action” banner. See Howard M. Downs, Federal Class Actions: 

Due Process by Adequacy of Representation (Identity of Claims) & the Impact of General Telephone v. Falcon, 54 

Ohio St. L.J. 607, 609 (1993). In due process terms, the class action device is “an exception to the 

usual rule that litigation is conducted by and on behalf of the individual named parties only.” Dukes, 

131 S. Ct. at 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–701 (1979)). Even as it 

already stands, Rule 23(b)(3) had been called the “most adventurous” departure from the normal 

due process rule of individual adjudication. Amchem Prods., Inc. v. Windsor, 521 U.S 591, 614-15 

(1997). Ignoring the potential conflict between further expansion of Rule 23(b)(3) and the Due 

Process limits on class treatment will also encourage similar adventurous experiments in state court, 

where the Due Process limits upon state class action procedures are already being litigated but are 

not yet fully developed. See, e.g., Petition for Certiorari in Wal-Mart Stores v. Braun, No. 14- 1124 in the 

Supreme Court of the United States. 

As the Supreme Court recently made clear in Dukes, the commonality requirement of Rule 23(a) 

requires proof that at least one key issue which drives the adjudication of the case is susceptible of a 

common answer. 131 S. Ct. at 2556. But the predominance requirement takes that a step further, 

requiring courts to assess whether individual or common issues would predominate in assessing and 

adjudicating the claims of every class member and the defenses asserted to those claims. 1 JOSEPH 

M. MCLAUGHLIN, MCLAUGHLIN ON CLASS ACTIONS: LAW & PRACTICE § 5:23 at 1263 (10th ed. 

2013). In so doing, predominance tests “whether proposed classes are sufficiently cohesive to 

warrant adjudication by representation.” Amchem Prods., Inc., 521 U.S. at 623. 

Therefore, the aim of the predominance requirement cannot be fulfilled by reliance on the 

commonality inquiry alone. They two are distinct inquires, with predominance being a critical test to 

determine whether the class is “sufficiently cohesive” to warrant class treatment at all. A class that is 

not “sufficiently cohesive” to warrant representative adjudication in the first place cannot logically 

be transformed by the handshake of the lawyers into one that is sufficiently cohesive to warrant 

representative adjudication for purposes of settlement. As the Supreme Court has observed, “it is 

not the mission of Rule 23(e) to assure the class cohesion that legitimizes representative action in the 

first place.” Amchem, 521 U.S. at 623; accord Ortiz, 527 U.S. at 858 (“A fairness hearing under 

subdivision (e) can no more swallow the preceding protective requirements of Rule 23 in a 

subdivision (b)(1)(B) action than in one under subdivision (b)(3).”).

If one assumes that the proposed change achieved its stated goal, and that the predominance of 

individual issues would then no longer be a concern in certifying settlement classes, then the logical 

result would be that virtually any claim could be pursued on a class basis. While the proposal 
DRI – The Voice of the Defense Bar Page 19 of 28

purports to maintain the “superiority” requirement for settlement classes, the proposed rule fails to 

articulate what “superiority” would mean once completely divorced from the traditional 

predominance inquiry. After all, from the narrow perspective of the convenience of the court and 

abstract efficiency, any class settlement is superior to the prospect of individual litigation by each 

member of the class. But if that alone is the effective meaning of superiority under this proposal—

and it seems it would have to be if the predominance of individual issues is expressly removed from 

the equation for purposes of settlement—then superiority effectively becomes a rubber stamp for 

settlement classes. It is indeed difficult to imagine any putative class action that could not be 

certified for settlement purposes if the predominance of individual issues is truly no longer a 

concern. Would common law fraud class actions now be certifiable for settlement purposes despite 

the necessity of proving individual reliance in litigated individual cases? What about nationwide 

personal injury class actions? Mental anguish claims? How does the proposal guarantee otherwise?

Similarly, substantial uncertainty would attend interpretation of Rule 23(a)’s adequacy and typicality 

requirements if an inquiry into the predominance of common issues is removed from the settlement 

certification analysis. The “safeguards provided by the Rule 23(a) and (b) class qualifying criteria ... 

are not impractical impediments—checks shorn of utility—in the settlement-class context,” rather 

these “standards set for the protection of absent class members serve to inhibit appraisals of the 

chancellor’s foot kind—class certifications dependent upon the court’s gestalt judgment or 

overarching impression of the settlement's fairness.” Amchem Prods., 521 U.S. at 621. In what sense 

is a proposed representative adequate and his or her claims typical if each individual’s claim 

admittedly turns on predominantly individual and not common facts? In what sense is 

representation for purposes of settlement “adequate” if the representative would not have the power 

to assert the claims of absent class members in litigation, and the bargaining leverage that comes 

with the willingness and ability to use that power? Class judgments can be collaterally attacked for 

lack of adequate representation. See Hansberry, 311 U.S. at 45 (“a selection of representatives . . . 

whose substantial interests are not necessarily or even probably the same as those whom they are 

deemed to represent, does not afford that protection to absent parties which due process requires.”). 

The elimination of the predominance tests for certification of settlement classes risks the unintended 

effect of fostering more collateral attacks on class settlements because it would effectively and 

inevitably foster representation of absent class members by persons whose claims are predominately 

the same as theirs

The 23(b)(4) proposal would in fact create unavoidable perverse incentives on the part of counsel 

for both sides. Plaintiffs’ counsel would now have undeniable incentives, and indeed implicit 

permission in Rule 23 itself, to file otherwise uncertifiable class action complaints with the intent 

and purpose of using the cost and risks of defending them to force a class settlement. This problem 

already exists to a significant extent under the current version of Rule 23, and has been called the 

“blackmail effect” of class litigation. See, e.g., AT&T Mobility LLC v. Concepcion, — U.S. —, 131 S. 

Ct. 1740, 1752 (2011) (citing Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 677-78 (7th Cir. 2009)); 

In re Rhone-Poulenc Rorer, 51 F.3d 1293, 1299-1300 (5th Cir. 1995). The 23(b)(4) proposal would make 

that problem much worse. The federal courts would surely see substantial increases in class action 

filings, since by definition it would then be entirely permissible to file suit with the aim and purpose 

of achieving settlement certification even for an otherwise uncertifiable class. These otherwise 

admittedly illegitimate class actions would then very frequently result in class settlements simply 

because it would very often be cheaper for defendants to settle these cases than litigate them. 

Indeed, once these cases are filed, both plaintiff’s counsel and defense counsel would have clear 

incentives to disregard individualized variations and differences in favor of a deal that, in the 
DRI – The Voice of the Defense Bar Page 20 of 28

absence of Rule 23(b)(4), would surely have been deemed a collusive settlement. After all, Plaintiffs’ 

counsel in these cases would have little to bargain with in negotiating settlement of these cases, since 

the defendant would face no real threat of classwide liability in litigation. See, e.g. Amchem Prods., 521 

U.S. at621 (“if a fairness inquiry under Rule 23(e) controlled certification, eclipsing Rule 23(a) and 

(b), and permitting class designation [for settlement purposes] despite the impossibility of litigation, 

both class counsel and court would be disarmed. Class counsel confined to settlement negotiations 

could not use the threat of litigation to press for a better offer...”). 

Indeed, if 23(b)(4) became law, it is not hard to imagine that the very fact that the class is not 

certifiable for litigation would become a popular reason for the plaintiffs’ counsel to propose, and 

for the court to approve, a classwide settlement for mere pennies on the dollar. Cf. City of Detroit v. 

Grinell Corp., 495 F.2d 448, 463 (2d Cir. 1974) (risk that class certification could not be maintained 

through trial endorsed as a factor favoring approval of class settlement), abrogated on other grounds by 

Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir.2000). In these and other ways, the adequate 

representation of absent class members that is critical to due process is inevitably undermined by 

creating an easy path to settlement certification even where individual issues admittedly predominate 

and claims are therefore predominately dissimilar. This approach stands the concept of due process 

on its head.

Placing the burden entirely on the court to ensure the protection of absent class members merely by 

reviewing the fairness of the settlement’s terms is hardly an answer to these problems. The 

certification of the class and the fairness of a settlement are separate inquiries. In the absence of 

properly incentivized adversarial advocacy, courts cannot be expected to be fully informed of the 

important variations in individual claims that may affect both inquiries. The Rule 23(b)(4) proposal 

largely serves as a disincentive to such advocacy.

There is another problem with the proposal. If the rule were adopted as proposed, it is unclear 

whether a class certified on this basis would automatically be vacated if the settlement which 

generated it were disapproved or failed to become effective, or whether a court could deem the 

parties estopped to challenge certification once they have supported it under the proposed new rule 

23(b)(4). Cf. Carnegie v. Household, Inc., 376 F.3d 656, 660 (7th Cir. 2004) (Posner, J.) (holding that 

parties who had stipulated that Rule 23(a) factors were met for purposes of settlement were judicially 

estopped to deny that the class met those same Rule 23(a) requirements for purposes of litigation 

after the settlement fell through). This problem would need to be explicitly addressed if any form of 

the 23(b)(4) proposal were adopted.

If the new settlement certification provision were applied to (b)(1) and (b)(2) as well as (b)(3), a 

possibility alluded to but not fully developed in the draft comments to the proposed rule, then all of 

the foregoing problems are only compounded, and still other new problems and uncertainties would 

be created. 

The abstract efficiency of settling numerous claims at once is simply not a reason in and of itself to 

certify a class where the underlying issues, claims and damages are predominantly individualized and 

varying rather than common. In terms of ensuring that the rights of absent class members are fairly 

represented in proceedings brought by a self-selected class representative, the fees and classwide 

release that would make such settlement certifications financially attractive to both would-be class 

counsel and the defendant are hardly a substitute for the identity of interests that the predominance 

requirement assures. The 23(b)(4) proposal would inevitably be perceived as placing the interests of 
DRI – The Voice of the Defense Bar Page 21 of 28

class action lawyers ahead of the true interests of individual class members, exacerbating the already 

widespread perception that class settlements primarily benefit lawyers at the expense of clients. See, 

e.g., Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 524 (1st Cir. 1991) (expressing “fear that class 

actions will prove less beneficial to class members than to their attorneys, [which] has been often 

voiced by concerned courts and periodically bolstered by empirical studies”). The DRI’s national 

poll data confirms the breadth and persistence of the public’s narrow view of class actions. The DRI 

National Poll on the Civil Justice System. It undermines the credibility of the class action device and the 

class action bar to have a rule that effectively says on its face that classes which are not cohesive, not 

susceptible of common proof on the predominating issues, and therefore admittedly uncertifiable 

for purposes of litigation, can nevertheless be a candidate for certification as a settlement class so 

long as the opposing lawyers agree to settle it on a class basis. 

Nor is this the right cure for the problem that some courts see judicial estoppel consequences to the 

defendant from proposing a class settlement if the class settlement fails. See, e.g., Carnegie v Household 

International, Inc., 376 F. 3d 656 (7th Cir. 2004). Incentivizing the filing of class actions in which 

individual issues predominate risks causes more harm than good, and would not prevent a risk of 

judicial estoppel as to the elements of Rule 23(a) – a problem which Carnegie itself demonstrates. In 

any event, judicial estoppel from a failed class settlement does not seem to be a concept many courts 

have embraced. Traditionally, judicial estoppel applies only when the party asserting the position has 

in fact prevailed in arguing the prior position and would gain unfair advantage by contradicting it. 

See, e.g., Zedner v. U.S., 547 U.S. 489, 503-06 (2006); New Hampshire v. Maine, 532 U.S. 742, 749-51 

(2001). The notion of “temporary advantage” from a failed settlement, the concept embraced by the 

Carnegie court as sufficient to trigger the doctrine, seems a distinct stretch of the concept, and one 

not widely followed. Moreover, the concept typically applies to inconsistent positions of fact, not 

inconsistent positions involving propositions of law. Lowery v. Stovall, 92. F. 3d 219, 224 (4th Cir. 

1996) (citing Tenneco Chemicals, Inc. v. William T. Burnett & Co., Inc., 691 F.2d 658 (4th Cir. 1982). 

“Predominance” is largely a conclusion of law, deriving from legal analysis of the elements of the 

claims and defenses at issue. 

A better cure for this problem would be language in the Rule simply saying that in the event a 

proposed class settlement is not approved, filings in support of or against a class settlement shall not 

be considered by the Court in determining a subsequent contested motion for class certification in 

that or any other case. That would resonate with the prohibitions on the use of settlement-related 

offers and settlement-related statements found Federal Rule of Civil Procedure 68(b) and Federal 

Rule of Evidence 408(a) and the policies supporting those Rules. See FED. R. CIV. P. 68(b) & 

advisory committee notes to 1946 amendment; FED. R. EVID. 408 & advisory committee notes. 

Alternatively, defendants can avoid the judicial estoppel risk by simply not taking a position on the 

Rule 23(a) and (b) factors at all for purposes of settlement, and allowing plaintiffs’ counsel to argue 

those issues, and Rule 23 could easily be modified to expressly authorize this approach. 

VI. DRI Comment on the Subcommittee’s Conceptual Sketch Relating to Cy Pres

The Subcommittee has proposed adopting § 3.07 the ALI Principles regarding cy pres as an 

amendment to Rule 23(e). In particular, this proposal would permit a court to approve a proposal 

that includes a cy pres remedy, even if such a remedy could not be ordered in a contested case. The 

proposal also provides the criteria a court should consider in determining whether a cy pres award is 

appropriate. The Subcommittee stated at a recent conference that its reasoning, at least in part, for 

proposing such changes is to maximize compensation to class members rather than third parties. 
DRI – The Voice of the Defense Bar Page 22 of 28

DRI agrees with the principle that settlement funds should be directed to class members and third 

parties, but submits that the proposed change is unnecessary and may actually do more harm to the 

stated goal than good. The change is unnecessary because courts already do consider the criteria 

listed in the proposed amendment to Rule 23(e), see e.g., In re BankAmerica Corp. Sec. Litig., 775 F.3d 

1060, 1063-64 (8th Cir. 2015) (discussing application of the American Law Institute’s standards for 

cy pres awards); In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24, 35 (1st Cir. 2009) 

(similar), and there is an entire industry of objectors ready and willing to ensure that courts consider 

such factors. 

If a court finds that a settlement’s notice plan and claims process are appropriate, and the amount of 

the settlement fund is “fair, adequate, and reasonable,” then there should be no residue in a 

settlement fund, or no problem with it reverting to the defendant. DRI appreciates that the 

Subcommittee’s September 2015 comments recognize this. The Subcommittee has proposed 

bracketed text that would suggest that reversion is an alternative to cy pres. 

The Subcommittee appears concerned in connection with that sketch that defendants would press 

for unduly exacting claims processing procedures. But there are at least three mechanisms in place 

to deter such conduct. First, plaintiffs’ counsel have not only an interest but a duty to ensure that 

the claims processing procedures are fair. Second, the judge has a duty and obligation to look at the 

same. Third, objectors often focus on the claims processing procedures. And finally, defendants 

who have decided to settle want the settlement to be approved, so they are likely to want the claims 

procedures to be fair so that the settlement is approved. 

While the Subcommittee focuses on concerns about what defendants do, little attention is paid to 

plaintiffs’ conduct. As the Subcommittee’s conceptual sketch regarding notice recognized, notice 

methods have changed. Dutiful plaintiffs’ counsel nowadays are often monitoring notice and claims 

returns to maximize claims. The good counsel are looking, in real time, at which electronic notice 

methods are maximizing claims returns and directing notice administrators to spend more of the 

funds on those sources rather than on ones not delivering results. Incentivizing plaintiffs to actually 

get the notice plan right and be vigilant about trying to achieve a healthy claims rate is a better 

method to maximize payments to class members than codifying a procedure for giving the money to 

a third party. The Subcommittee could augment the committee notes to the notice provisions to 

suggest that courts look at plaintiffs’ counsel’s diligence in conducting the notice program in 

analyzing fees to be awarded.

Similarly, if courts assessed plaintiffs’ counsel’s fees in terms of how much of the funds were 

distributed to class members – rather than how much was diverted to cy pres – this too may provide 

better incentives for plaintiffs’ counsel to direct funds to class members. Such incentives could be 

reinforced by including language in Rule 23 that would exclude cy pres payments from attorneys’ fee 

calculations. Judges are increasingly finding that attorneys’ fees should be awarded based on the 

amount of benefit to the class members, see Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014); 

Redman v. RadioShack Corp., 768 F.3d 622 (7th Cir. 2014); Pearson v. NBTY, Inc., 722 F.3d 778 (7th Cir.

2015), and because cy pres awards do not benefit the class members, plaintiffs’ attorneys should not 
DRI – The Voice of the Defense Bar Page 23 of 28

be compensated for directing fees to cy pres recipients. Such a change would be consistent with 

where the case law is trending.24 

Amending Rule 23 to codify the propriety of cy pres also may be counterproductive because the 

reality is that with these changes, plaintiffs’ counsel will say that cy pres is now blessed by the Federal 

Rules, so it should be a component of every settlement. This could provide plaintiffs more leverage 

in settlement than they would have in litigation, which does not appear to be (nor should it be) the 

Subcommittee’s goal. Parties need the flexibility to determine if cy pres is appropriate for each 

particular case. If plaintiffs’ case is weak and few claims are expected because, for example, people 

did not feel harmed by the defendant’s conduct, there is no reason the settlement should not reflect 

that reality and plaintiffs compensated accordingly.

Moreover, in DRI’s experience, there is no reason to presume that “individual distributions are not 

viable for sums of less than $100,” as the conceptual sketch originally stated. Many cases involve 

less than $100 where individual distributions are viable, as the Subcommittee recognized with its 

example of bank fees that are less than $100 and the bank could easily identify those account 

holders. But even if distributions are difficult, that reflects a problem with the named plaintiff’s 

ability to prove ascertainability, which suggests that the case is worth less than it would be if class 

members were ascertainable, and justifies a lower recovery, lower payment by defendants, less or no 

cy pres, and a lower attorneys’ fee award – none of which the proposed sketch addresses. Moreover, 

if it is impractical to distribute a settlement of a few dollars each to lots of class members, does that 

suggest that class treatment is really not superior to individual litigation after all? Those situations 

may be better left to regulatory enforcement actions. Class actions are not regulatory enforcement 

actions, and self-appointed, financially interested, roving private class counsel should not be able to 

extract the equivalent of a regulatory fine simply by leveraging the defense costs of class litigation 

into a cy pres settlement.

We also are concerned with the Subcommittee’s suggestion that distributions to class members who 

submitted improper claims should be topped up before cy pres distributions are made. This is 

problematic for several reasons, but primarily because of the lack of specificity. The only type of 

claims that the Subcommittee suggests should be topped up are untimely claims. The reality is that 

the parties often decide to pay untimely or otherwise improper claims to avoid having to disturb the 

court or risk objections on such issues. Without more specificity, the Subcommittee’s change 

suggests that the parties may be required to pay claims where the claims administrator has 

determined that the claimant is not entitled to relief. Parties often build fraud-prevention into their 

claims process, and they need the flexibility to determine whether a claim is fraudulent and should 

 24 Congress did the same thing in CAFA when it required that attorneys’ fee awards be calculated based on the amount 

of coupons redeemed, i.e., the actual benefit to the class, not the face value of the coupons issued. The same should be 

true with respect to non-coupon class action settlements. We assume the amount of money that is “fair, adequate, and 

reasonable” is the amount that plaintiffs’ counsel and the defendant agree upon, but it is entirely possible in this day and 

age when everyone is inundated with class action settlement notices that people are simply choosing not to make claims 

because they do not believe they were injured, they like the product about which the lawsuit was brought, or simply do 

not want to bother making a claim even if the process is very easy. Again, if we assume that notice and the claims 

process are adequate, as we must if a settlement is to be approved, there is no reason to think any remainder is excessive 

and should be redistributed (which may result in a windfall to class members). It may be that the plaintiff simply did not 

have a strong case, in which case it is fair and reasonable to revert the remainder back to the defendant. A reverter, 

which then would not be counted in plaintiffs’ counsel’s fees, provides incentives to plaintiffs to only bring claims where 

class members have actually been harmed and will take advantage of opportunity for compensation. 
DRI – The Voice of the Defense Bar Page 24 of 28

not be paid. Is the Subcommittee suggesting such claims should still be paid? In addition, the 

Subcommittee does not address how much topping up is necessary, and in fact suggests that 

claimants should be paid more even if they already have been paid “in full.” DRI does not 

understand why the federal rules would support giving class members more than was bargained for. 

Many settlement agreements already include provisions for additional pro rata distributions if the 

fund is under claimed, so is the Subcommittee blessing those provisions or requiring more than that 

to which the parties agreed?25 

The Subcommittee has reported that “[m]uch concern has been expressed in several quarters about 

questionable use of cy pres provisions, and the courts’ role in approving those arrangements under 

Rule 23.” But the Subcommittee’s proposals do not address the questionable role of judges and 

objectors in influencing the recipient or amount of the cy pres award. For example, the 

Subcommittee may be interested in a website located at www.ohiolawyersgiveback.org, which 

appears to be run by a law firm that promotes the use of cy pres in class action settlements and 

actually encourages charities to apply to be cy pres recipients. In DRI’s experience, the law firm then 

goes out and objects to settlements in order to get that charity a piece of the settlement funds. 

Although the conceptual sketch would restrict cy pres recipients to those whose interests “reasonably 

approximate” those being pursued by the class, that does nothing to prevent judges or objectors 

from directing the residue to their pet charities. For their part, judges have been known to “suggest” 

that cy pres funds be donated to local bar foundations or other charitable organizations to which the 

judge belongs or presides over, and often this is not done on the record. Given that the judge is 

approving or rejecting the settlement, the parties often feel coerced into making the donation the 

judge “suggests.” 

DRI is not opposed to cy pres; its members routinely use it and like having the option of using it to 

settle cases. Our members need the flexibility to determine when it is appropriate, however, and we 

are concerned that having the concept engrafted into the Federal Rules as proposed would put 

defendants in a weaker bargaining position that they would be without it. 

VII. DRI Comment on Subcommittee’s Conceptual Sketch on Objectors

The Subcommittee has sketched out two possible amendments to Rule 23 related to class action 

settlement objectors. First, the Subcommittee has raised for discussion changes to Rule 23(e)(5) that 

would require an objector seeking to withdraw an objection to not only obtain court approval to 

withdraw (which is already required by the current rule), but also file a statement identifying any 

“agreement made in connection with the withdrawal.” Second, the Subcommittee has proposed 

language regarding sanctions of objectors if objections are made for improper purposes. In doing 

so, it has proffered two possible options: (a) language added to 23(e)(5) to make objections subject 

to Rule 11; or (b) language added to the effect that a court may impose sanctions “if the court finds 

that an objector has made objections that are insubstantial [and/or] not reasonably advanced for the 

purpose of rejecting or improving the settlement.”

 25 What does the Subcommittee mean in the bracketed text of page 16 of the September comments when it says “As an 

alternative, or additionally, a court may designate residual funds to pay class members who submitted claims late or 

otherwise out of compliance with the claim processing requirements established under the settlement.” Is this 

suggesting that courts rewrite settlement agreements? They have no authority to do so.
DRI – The Voice of the Defense Bar Page 25 of 28

As an initial note, we completely agree with the Subcommittee’s expressed concern that, while some 

settlement objectors serve a useful purpose (the Subcommittee calls them “good” objectors), others 

hold up the settlement in the hopes of extracting money from the settling parties, and serve no 

purpose in improving the settlement (the Subcommittee calls these objectors “bad” objectors). The 

expressed intention of proposed Rule 23 changes related to objectors is to create a disincentive for

the “bad” objectors. While it is definitely true that many objectors are often motivated more by 

money than by any improvement in recovery for the class, and that “professional objectors” are 

using Rule 23 as a source of income rather than a method of good legal reform, it does not appear 

that the changes proposed would necessarily serve the purpose of diminishing or eradicating their 

practices.

First, in our experience, it appears that Courts are already well-equipped to know who is a “good” 

objector and who is a “bad” objector. The Parties often spend significant time educating the judge 

on the history of the objectors, and can tell from briefing and oral argument what purpose they are 

serving, if any. Moreover, no objector is completely “good” or completely “bad.” Most will be 

mixed – i.e., they are bringing legitimate objections and seeking improvements to a settlement, but 

their motivation at the end of the day is monetary only. It seems overly simplistic to put objectors 

into “good” and “bad” categories, without also leaving room for the nuanced considerations (already 

in use by Courts) to determine how much weight to give objections.

Second, it does not necessarily follow that requiring notification of side agreements before an 

objector can withdraw will actually lead to less objectors. Rule 23(e)(5) already requires court 

approval to withdraw objections made at the district court level. This seems too late. Why not 

require court approval to make an objection? If we believe that most objections are worthless, why 

would we make it more difficult to withdraw, rather than more difficult to object in the first place? 

Moreover, it is questionable whether Rule 23(e)(5) (adopted in 2003), requiring court approval for 

withdrawal of an objection, actually decreased the number of “hold up” objectors (e.g., professional 

objectors) simply seeking money, which was its intended purpose? It would seem that adding 

barriers to withdrawal of an objection may not serve the purpose of reducing objections in the first 

place – it may just lead to less withdrawals, which is not the desired benefit.

Third, the idea of sanctions, while seemingly helpful for dissuading objectors with less than pure 

motives, seems rife with difficulty. Sometimes an objector does not have a full record (e.g., if parts 

of the record are under seal) and may not have a full record unless and until he files an objection. 

An objector may not be able to say he is complying with Rule 11 when he does not have a full 

record of the facts. Moreover, a court already has authority to impose sanctions under 28 USC 

§1927; extra authority is not needed to impose sanctions against objectors.

Finally, every settlement can always be “better” or more beneficial to class members – it is a product 

of compromise. An objector will typically be able to put forth some argument that appears to have 

a purpose of improving the settlement (i.e., publication notice that reaches 85 instead of 75 percent; 

longer claims period; simpler claim form). It may very well be that any changes making life more 

difficult for objectors are a good thing, as viewed from the defense side of the bar, but we would ask 

that the Committee first consider whether previous amendments restricting withdrawal of objections 

have actually led to less objectors. Also, the Committee should consider whether there are other 

methods that could be used to separate out the “good” objectors from the “bad” objectors, perhaps 

by expressly allowing for discovery into the objectors’ litigation history. 
DRI – The Voice of the Defense Bar Page 26 of 28

VIII. DRI Comment on Subcommittee’s Conceptual Sketch on Issue Certification

Even in the usual course, “the vast majority of certified class actions settle, most soon after 

certification.” Robert G. Bone & David S. Evans, Class Certification and the Substantive Merits, 51 Duke 

L.J. 1251, 1291-1291 (2002) (“[E]mpirical studies...confirm what most class action lawyers know to 

be true[.]”); see also Nagareda, supra, at 99 (“With vanishingly rare exception, class certification [leads 

to] settlement, not full-fledged testing of the plaintiffs’ case by trial.”); Thomas E. Willging & 

Shannon R. Wheatman, Attorney Choice of Forum in Class Action Litigation: What Difference Does It Make?, 

81 Notre Dame L. Rev. 591, 647 (2006) (“[A]lmost all certified class actions settle.”). Indeed, a 2005 

study conducted by the Federal Judicial Center found that roughly 90% of the suits under review 

that were fi led as class actions settled after certification. Barbara J. Rothstein & Thomas E. Willging, 

Federal Judicial Center, Managing Class Action Litigation: A Pocket Guide for Judges 6 (2005). This is 

because class actions place defendants in the untenable position of betting the company on the 

outcome of a trial. Defendants, unwilling to roll the dice, are placed under intense pressure to settle, 

even if an adverse judgment seems “improbable.” See Thorogood v. Sears, Roebuck and Co., 547 F.3d 

742, 745 (7th Cir. 2008); Matter of Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298 (7th Cir. 1995). See 

also Barry F. McNiel, et. al., Mass Torts and Class Actions: Facing Increased Scrutiny, 167 F.R.D. 483, 489-

90 (updated 8/5/96). Fear of negative publicity is also a motivating factor to settle even weak class 

claims. L. Elizabeth Chamblee, Unsettling Efficiency: When Non-Class Aggregation of Mass Torts Creates 

Second-Class Settlements, 65 La. L. Rev. 157, 222 (Fall 2004).

The elimination of predominance to pave an easier path to issue certification would lead to even 

more “blackmail settlements.” Rhone, supra at 1298, citing Henry J. Friendly, Federal Jurisdiction: A 

General View 120 (1973). There is no compelling policy for a change that would allow abusive class 

actions to progress more easily to certification – and legally unwarranted settlement. The enhanced 

leverage of an easier path to certification of some sort would inevitably trigger the filing of many 

more “strike suits” brought by opportunistic plaintiffs’ attorneys to obtain “the defendants’ cost 

savings from avoiding the litigation, distraction, and reputation costs of responding to the plaintiffs’ 

complaint” rather than the true worth of the claim. James Bohn & Stephen Choi, Fraud in the NewIssues Market: Empirical Evidence on Securities Class Actions, 144 U. Pa. L. Rev. 903, 970 (1996). The 

strain this places on the individuals and businesses that DRI’s members are regularly called on to 

defend cannot be overstated. Even without this easier path to certification, class actions can sound 

the death knell for new companies and those suffering under today’s current economic climate. 

Bradley J. Bondi, Facilitating Economic Recovery and Sustainable Growth Through Reform the Securities ClassAction System: Exploring Arbitration as an Alternative to Litigation, 33 Harv. J.L. & Pub. Pol’y 607, 612 

(Spring 2010). But the removal of the predominance requirement from the issue class certification 

equation gives even more power in upfront settlement discussions to plaintiffs whose claims might 

require individualized causation and remedy determinations. “Such leverage can essentially force 

corporate defendants to pay ransom...” S. Rep. No. 109-15, 17 20-21 (2005), reprinted in 2005 

U.S.C.C.A.N. 3, 21; Michael B. Barnett, The Plaintiffs’ Bar Cannot Enforce the Laws: Individual Reliance 

Issues Prevent Consumer Protection Classes in the Eighth Circuit, 75 Mo. L. Rev. 207, 208 (Winter 2010). 

And the ripple effects of these exorbitant settlements will be felt throughout the economy. The costs 

of settlements are, at least partially, inevitably passed on to consumers in some form or another. 

Removal of superiority and manageability issues from the issue certification equation in addition to 

eliminating the predominance requirement would only exacerbate these problems.

But there will be additional victims, too, if issue classes may be certified under Rule 23(c)(4) 

regardless of Rule 23(b). This approach will place a robust strain on the courts and judges called on 
DRI – The Voice of the Defense Bar Page 27 of 28

to adjudicate these “issue” class claims. It is well-understood that class action litigation consumes 

more judicial resources than individual litigation. In fact, one study found that class actions consume 

almost five times more judicial time and resources than non-class civil actions. Thomas E. Willging, 

et. al., Empirical Study of Class Actions in Four 13 Federal District Courts, 7, 11, 23 (1996). It becomes even 

more problematic for the bench to carry out proceedings when adjudication of a class suit involves 

both class and individual trials. The class action mechanism should not be used in situations where 

proper adjudication of the claim will require individualized proofs and trial; these claims are better 

brought as individual suits.

DRI submits that the concept of issue classes should be eliminated from Rule 23 altogether. 

Alternatively, the rule should be amended to at least make it explicit that all of rule 23(b)’s existing 

requirements apply with full force to issue classes. Reaffirming the notion that class actions are 

limited to situations where common classwide claims can be resolved through a single trial will go a 

long way in preserving the district and appellate courts’ limited judicial resources. Rule 23(b) 

provides the key component of the balance of when class treatment is preferable over individual 

actions. The issue certification concept, especially if predominance and/or superiority and 

manageability concepts are removed from the equation, disrupts this careful balance by allowing a 

class unable to fit within one of the types set forth in Rule 23(b) to proceed as an “issue” class even 

though final resolution of the claims will require individualized proofs and trials. 

The need for issue class certification is hardly apparent. Where claims are predominantly individual 

but involve common issues, the doctrine of non-mutual offensive collateral estoppel already 

provides an avenue whereby resourceful litigants and judges can, where it is fair to the defendant to 

do so, avoid the need for that issue to be determined over and over as to the same defendant. See, 

e.g., Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979).

In the final analysis, courts are in the business of resolving claims, not issues. Adjudicating issues 

but not claims on a classwide basis also presents serious Seventh Amendment concerns See In re 

Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1303 (7th Cir. 1995). It may also present due process 

concerns. The United States Supreme Court has repeatedly observed that Rule 23(b)(3) is the “most 

adventuresome” of Rule 23’s experiments with the due process norm of an individual’s right to his 

own day in court. See, e.g., Amchem Prods. Inc. v Windsor, 521 U.S. 591, 614 (1997). Removing its 

predominance, superiority and manageability components for an issue class certification is more 

adventuresome by far. The due process risk is even greater under the Subcommittee’s sketch 

proposals to the extent a right of opt out is not explicitly mandated for issue classes. Having class 

members bound by res judicata to an adverse determination of an issue critical to their individual 

claims without a right of opt out would almost certainly offend due process when the claims at stake 

do not turn on predominantly common issues to begin with.

If the concept of issue certification remains in any form, then an appeal as of right should lie from 

any order granting such certification for the reasons outlined in Section III above. Indeed, given the 

increased settlement leverage and reduced overall efficiency inherent in an easier path to issue class 

certification, the need for an appeal of right would be even more acute if any version of the 

Subcommittee’s issue certification proposals were adopted.
DRI – The Voice of the Defense Bar Page 28 of 28

CONCLUSION

DRI is grateful for the opportunity to submit these comments to the Subcommittee, and wishes to express its sincere 

appreciation for the active participation of several members of the Subcommittee in the recent “town hall meeting” at 

the 2015 DRI Class Actions Seminar in Washington D.C. We stand ready to respond to any follow-up questions 

the Subcommittee may have.
John Parker Sweeney, President of DRI – Voice of the Defense Bar

Testimony Before

Subcommittee on the Constitution and Civil Justice

The U.S. House of Representatives

February 27, 2015

“The State of Class Actions Ten Years After the Enactment of 

the Class Action Fairness Act”
1

John Parker Sweeney, President of DRI – Voice of the Defense Bar

Testimony Before The

U.S. House of Representatives Subcommittee on the Constitution and Civil Justice

February 27, 2015

“The State of Class Actions Ten Years After the Enactment of the Class Action Fairness Act”

Good morning, Mr. Chairman, Mr. Cohen, and members of the subcommittee. I am John 

Parker Sweeney, president of DRI – The Voice of the Defense Bar. I will summarize my 

statement and ask that my full statement be included in the record.

I want to first thank the subcommittee for allowing us to appear here today. With 22,000 

members, DRI is the largest association of lawyers defending American businesses – large and 

small – in court. Over the past four years, we have submitted 23 amicus briefs to the Supreme 

Court in cases involving class actions. We also conduct the nation’s only annual national opinion 

poll devoted exclusively to the civil justice system.

I would also like to express our appreciation for the time and skill that went into the 

enactment of the Class Action Fairness Act of 2005. This legislation brought increased fairness 

and efficiency to the civil justice system. The importance of CAFA is highlighted by the 

Supreme Court’s significant decisions over the past ten years in the areas of class and collective 

actions.

Representative actions such as class actions and collective actions are exceptions “to the 

usual rule that litigation is conducted by and on behalf of the individual named parties only.” 

Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979). Exceptional litigation can create 

exceptional problems and calls for exceptional treatment and the enactment of CAFA helped 

address some of the exceptional problems inherent in aggregate litigation. As with most 

important legislation, the passage of time and the accrual of practical experience reveal
2

opportunities that would make the law more effective, as well as address the vulnerabilities that 

threaten its purposes.

Although there are a number of areas of concern to DRI’s members, we would like to

highlight today three areas we believe merit further study and reform:

1) No-injury class actions;

2) The use of the cy pres doctrine to increase the cost of class action settlements; and

3) Continued issues with removal of class actions to federal court.

Each of these areas presents unique challenges and each impacts the very concerns that led to the 

enactment of CAFA in the first place. We believe CAFA’s reforms have worked and our 

discussion here is intended to highlight issues that warrant further review.

I. NO-INJURY CLASS ACTIONS

Article III standing is an “irreducible constitutional minimum,” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560 (1992), and an individual lacks standing unless he has 

been affected “in a personal and individual way.” Id. at 560 n.1. A plaintiff cannot rely on any 

injury others may have suffered to satisfy this requirement. See Warth v. Seldin, 422 U.S. 490,

501 (1975) (“[T]he plaintiff . . . must allege a distinct and palpable injury to himself . . . .”). In 

other words, the plaintiff must have suffered an “injury in fact.”

Yet defendants today face abstract claims that threaten to undermine the civil justice 

system: suits brought by plaintiffs who admittedly have not been harmed on behalf of a 

proposed class of similarly unharmed individuals. In these no-injury class actions, plaintiffs ask 

the courts to ignore the requirement of harm, often by seeking to recover some fixed amount or 

range of statutory damages without any showing of an injury.
3

Much of our concern over “no-injury” classes involve suits brought under state law, such 

as deceptive trade practices or consumer protection statutes that provide for a measure of 

damages untethered to any actual harm sustained by a person. With respect to such “statutory 

damages,” one commentator has explained:

Several states provide that private litigants may recover statutory damages, 

which are the greater of actual damages or an amount ranging from $25 in 

Massachusetts to $2,000 in Utah. State laws allow plaintiffs to receive the

statutory minimum without proving actual damages. Nebraska law allows the 

court, in its discretion, to increase the award ‘to an amount which bears a 

reasonable relation to the actual damages’ up to $1,000 when ‘damages are not 

susceptible of measurement by ordinary pecuniary standards.’

Victor E. Schwartz & Cary Silverman, Common-Sense Construction of Consumer Protection

Acts, 54 Kan. L. Rev. 1, 22-23 (October, 2005).

Federal statutes also contain statutory damages provisions. For example, the Fair and 

Accurate Transaction Act of 2003 ("FACTA") requires retailers to truncate credit card 

information on electronically printed receipts given to customers. 15 U.S.C. § 1681c(g). A part 

of the Fair Credit Reporting Act, ("FCRA"), 15 U.S.C. §§ 1681 et seq., FACTA incorporates the 

statutory damages provision of the FCRA, which can range from $100 to $1,000 per violation.

15 U.S.C. § 1681n. Copyright law also contains statutory damages provisions. 17 U.S.C. §

504(c), as does the Fair Debt Collections Practices Act. 15 U.S.C. § 1692k(a)(2) (providing for 

statutory damages but limiting amount recoverable in class actions to $500,000 or 1% of the 

violator’s net worth). The Telephone Consumer Protection Act also provides for statutory 

damages in lieu of actual damages for violations of its provisions. 47 U.S.C. §§ 227(b)(3) and

277(c)(5).

Our experience with statutory damages class actions under both state and federal law is 

that while few if any of the putative class members have suffered any actual harm, the sheer
4

number of potential class members creates significant exposure to the defendant. Two 

justifications typically advanced for statutory damage awards are: (1) the actual damages 

sustained for a particular violation are difficult to measure or prove and statutory damages 

provide some measure of compensation to the plaintiff; and (2) to punish a defendant and to 

deter others from committing similar acts in the future. See, Ben Sheffner, Due Process Limits

on Statutory Civil Damages, Washington Legal Foundation Legal Backgrounder, Vol. 25, No. 27 

at 1 - 2 (August 6, 2010) (discussing proffered justifications for statutory damages in copyright 

cases). As noted below, when the plaintiff and the putative class have admittedly suffered no 

harm, there is nothing compensatory about such awards.

When these statutory damage provisions are combined with the aggregate power of the 

class action device, however, defendants can face significant and potentially ruinous exposure

for conduct that admittedly harmed no one. See e.g., In re Trans Union Corp. Privacy Litig., 211

F.R.D. 328, 350 (N.D. Ill. 2002) (denying certification of a nationwide statutory damages class 

because while “certification should not be denied solely because of the possible financial impact 

it would have on a defendant, consideration of the financial impact is proper when based on the 

disproportionality of a damage award that has little relation to the harm actually suffered by the 

class, and on the due process concerns attended upon such an impact”). In fact, a recent 

certiorari petition identified 19 lawsuits (14 of them putative class actions) involving alleged 

technical violations of ten different federal statutes where the plaintiff suffered no economic or 

other harm. Petition For A Writ of Certiorari, at 9 – 12, First National Bank of Wahoo v. 

Charvat, (No. 13-679). The Court denied that petition and while it had previously granted 

certiorari in a case raising a similar issue, it ultimately dismissed that writ as improvidently 

granted. First American Financial Corp. v. Edwards, 132 S.Ct. 2536, 2537 (2012).
5

In a typical case, the plaintiff contends the defendant committed wide-spread technical 

violations of some statute. She admits that she and the class she seeks to represent sustained no 

economic or other actual harm as a result of the violation. She then seeks to have the court award 

aggregate damages based on some formulaic calculation drawn from a range of penalties 

recoverable under the statute allegedly violated. In other cases, the claims are brought by state 

attorneys general under a parens patrie theory. The relief sought in many class actions or in 

parens patrie actions brought by state attorneys general is based not on the actual harm suffered 

by any individual person, but rather on some legislatively-defined statutory damage amount set 

for each violation. Under this scenario, even an unwitting defendant can face catastrophic 

liability for inadvertent and technical violations when sued in a class action or state AG action. 

Although some statutes, such as the Truth in Lending Act – recognize the gross unfairness of 

imposing a statutory damages penalty where aggregate treatment is sought – most statutes do not 

contain such language and a number of courts have refused to consider the unfairness of the

relief sought in making their certification decision.

These cases implicate Article III standing requirements – both for the putative class 

representatives and for the absent class members. They also implicate broad policy concerns 

over the appropriateness of using the civil justice system to punish defendants for what are at 

most technical violations. And punishment it is. Because the class members are by definition 

unharmed, there is nothing compensatory about the process. Permitting aggregated actions by 

unharmed individuals places enormous pressure on defendants to settle claims that would 

valueless if tried on an individual basis. With little or no interest on the part of absent class

members in participating in these settlements, they implicate the same concerns the 109th
6

Congress had with coupon settlements that it attempted to address with CAFA. We believe this 

is an area in need of further study and reform.

Congress passed the Rules Enabling Act, 28 U.S.C. § 2072, to prevent the use of 

procedural rules to abridge or enlarge substantive rights. Permitting suits on behalf of unharmed 

absent class members who lack Article III standing (as several courts have held) contravenes this 

important Congressional mandate. Likewise, because some courts permit aggregation while 

others do not – despite the fact that the same statutory provisions and same procedural rules are

at issue – the current environment is utterly and unnecessarily unpredictable for our members 

and our clients. In addition, permitting litigation by and on behalf of unharmed parties impairs 

the ability of the civil justice system to efficiently adjudicate the claims more properly before it. 

As an organization devoted to improving the civil justice system, we believe a hard look at 

addressing the problem of no injury class actions is warranted.

And we are not alone in this belief.

For the past three years, we have conducted the DRI National Opinion Poll on the Civil 

Justice System. We’ve asked class action questions on each of our polls. On the question of 

“harm” in our 2013 poll, 68% said they would require plaintiffs to show actual harm, rather than 

potential harm, to join a class action.

This year, we took it a step further. We asked if the respondent would support a law

requiring a person to show that they were actually harmed by a company’s products, services, or 

policies rather than just showing the potential for harm. Seventy-eight percent would support 

such a law; just 19% would oppose it. Large majorities supporting this reform occur across 11 

demographic categories. Men, women, Republicans (86%), Democrats (71%), Liberals (73%),
7

Conservatives (85%). We believe these results further support a probing examination of the 

question of permitting no-injury class actions to proceed.

II. THE INCREASING USE OF CY PRES PAYMENTS IN CLASS ACTIONS

As Judge Posner recently noted, “Cy pres (properly cy près comme possible, an AngloFrench term meaning "as near as possible") is the name of the doctrine that permits a benefit to 

be given other than to the intended beneficiary or for the intended purpose because changed 

circumstances make it impossible to carry out the benefactor's intent. A familiar example is that 

when polio was cured, the March of Dimes, a foundation that had been established in the 1930s 

at the behest of President Roosevelt to fight polio, was permitted to redirect its resources to

improving the health of mothers and babies.” Pearson v. NBTY, Inc., 772 F.3d 778, 784 (7th Cir.

2014). Over the last decade, courts have increasingly used the cy pres doctrine to disperse 

settlement or judgment funds that remain unclaimed after attempted distribution to class 

members. That practice is coming under growing criticism. See, e.g., Jennifer Johnston, 

Comment, Cy Pres Comme Possible to Anything is Possible: How Cy Pres Creates Improper 

Incentives in Class Action Settlements, 9 J.L. Econ. & Pol'y 277 (2013); Sam Yospe, Note, Cy 

Pres Distributions in Class Action Settlements, 2009 Colum. Bus. L. Rev. 1014. We believe that 

criticism is worth considering.

In some instances, settlements made for the ostensible benefit of class members go 

entirely to cy pres recipients because it is infeasible or otherwise difficult to provide benefits 

directly to class members. Attorneys’ fees are often calculated on the gross amount of class 

settlement. The availability of cy pres awards skews the entire process by increasing the size of 

settlement (and potentially class counsel’s fees) while providing no direct benefit to the class 

members on whose behalf the suit was purportedly brought and whose rights are impacted by the
8

action. This ad hoc and unlegislated expansion of the class action device calls for specific 

reform to prohibit or strictly limit its use. Reforms here could be addressed through more 

rigorous application of the existing civil procedure rules, by the adoption of more explicit rules, 

and by the enactment of statute specifically addressing it.

III. CONTINUED ISSUES WITH REMOVAL OF CLASS ACTIONS

As the Supreme Court recently noted, “Congress enacted CAFA in order to “amend the 

procedures that apply to consideration of interstate class actions” in part because “certain 

requirements of federal diversity jurisdiction had functioned to keep cases of national importance 

in state courts rather than federal courts.” Mississippi ex rel. Hood v. AU Optronics Corp., 571

U.S., 134 S.Ct. 736, 739 (2014) (internal citations and quotations omitted). Even with CAFA, 

we have seen continued concerns with issues related to the amount in controversy requirements 

and inconsistent treatment of them by districts and appellate courts both with respect to class 

actions and to traditional diversity claims. Congress attempted to address this issue somewhat 

with the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Public Law 112-63, 

which added 28 U.S.C. § 1446(c)(2)(B), which provides that removal is proper if the district 

court finds, “by the preponderance of the evidence, that the amount in controversy exceeds the 

amount specified in section 1332(a) [$5,000,000].” But what evidence is required to allow the 

district court to make that finding, and when that evidence must be submitted, is the subject of 

on-going dispute.

The Supreme Court recently addressed a portion of these concerns in its recent decision 

in Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547 (Dec. 15, 2014). There, it 

rejected a presumption against removal in CAFA cases and held that a defendant is not required 

to provide evidence as to the amount in controversy at the time of removal. In that case, the
9

evidence was essentially undisputed that the amount in controversy exceeded $5,000,000. 

Although the defendant asserted such in its notice of removal, the district court held it could not 

consider post-removal evidentiary submissions supporting that assertion and remanded the case. 

A divided Tenth Circuit refused to consider the defendant’s appeal. The Court granted the 

defendant’s certiorari petition to consider a split between the Tenth Circuit and between five and 

seven other courts of appeal on the question and the majority agreed the defendant was not 

required to attach evidence at the time of removal.

Nonetheless, we still comprehend two concerns about the current treatment of the amount 

in controversy requirement in class action cases. First, we question whether imposing a

$5,000,000 amount in controversy requirement over class actions makes sense when, to use the 

language of the Senate Judiciary Committee’s report on CAFA, “a citizen can bring a ‘federal 

case’ by claiming $75,001 in damages for a simple slip-and-fall case against a party from another 

state.” Senate Report No. 14, 109 Cong., 1st Sess., at 11 (2005). We believe that the Committee 

should consider whether putative interstate class actions involving minimally diverse parties 

should be subject to the same jurisdictional minimum as traditional diversity claims. This 

threshold would eliminate a considerable amount of procedural wrangling at the removal stage 

and place class action defendants on equal footing with other out-of-state defendants sued in

state court.

The second issue we believe warrants study goes directly to the courts’ treatment of the 

amount in controversy requirement and the inappropriate burdens some have placed on class 

action defendants seeking to remove cases to federal court. In particular, we believe a hard look 

at what “evidence” is required in order for a removing defendant to establish the requisite 

amount in controversy under 28 U.S.C. § 1446(c)(2)(B). We believe the approach taken by the
10

United States Court of Appeals for the Seventh Circuit in Back Doctors Ltd. v. Metropolitan 

Property and Casualty Insurance Company, 637 F.3d 827 (7th Cir. 2011) properly balances the 

amount in controversy issues and invite the Committee to consider whether the essence of its 

holding should be incorporated into unambiguous statutory language applicable to all diversity

removals.

In Back Doctors, Ltd., the court attempted to lay down a fairly simple test for determining 

whether a class action defendant had met the amount in controversy requirement. It began by 

noting that the Supreme Court had long-ago held that when a plaintiff initiates an action in

federal court (and thus is the proponent of federal jurisdiction), its allegations regarding the 

amount in controversy must be accepted unless it is impossible for it to recover the jurisdictional 

minimum. 637 F.3d at 829 (citing St. Paul Mercury Indemnity Company v. Red Cab Co., 303

U.S. 283 (1938)). The Seventh Circuit held, consistent with 28 U.S.C. § 1446(c)(2)(B), that the 

same rule applied where a removing defendant (as the proponent of federal jurisdiction), made 

allegations regarding the amount in controversy in the notice of removal. 637 F.3d at 830. The 

defendant alleged that the compensatory damages exceeded $2,900,000 and that a potential 

punitive award in light of nature of the claims was sufficient to push the amount in controversy 

above $5,000,000. The plaintiff countered by pointing out that it had not sought punitive 

damages on behalf of itself or the putative class and without the possibility of a “speculative” 

punitive award, the amount in controversy could not be met.

The court recognized that while jurisdictional facts must be alleged and, if challenged, 

proven by a preponderance of the evidence, that does not require the defendant to show it was 

more likely than not the plaintiff class would recover in excess of the jurisdictional amount. Id. 

at 829. It then identified what it considered to be jurisdictional facts:
11

The legal standard was established by the Supreme Court in St. Paul 

Mercury: unless recovery of an amount exceeding the jurisdictional minimum is 

legally impossible, the case belongs in federal court. Only jurisdictional facts, 

such as which state issued a party's certificate of incorporation, or where a 

corporation's headquarters are located, need be established by a preponderance of 

the evidence.

Back Doctors Ltd., 637 F.3d at 830. Because the defendant in that case could show that the 

compensatory damages sought exceeded $2,900,000 and because the plaintiff could not show 

that punitive damages were legally impossible to recover under state law, the court reversed the 

district court’s remand order and directed it to consider the case on the merits. Id. at 831. We 

believe this approach would best balance the federalism concerns inherent in diversity removals 

while allowing the courts to devote their resources to issues other than fights over jurisdiction.

Now, if I may, Mr. Chairman, let me spend a few minutes on the DRI National Public 

Opinion Poll on the Civil Justice System. Often time in discussing these issues we forget about 

the American people, to whom the civil justice system really belongs. And that’s why we created 

the DRI Poll.

As an advocacy group, we know that the integrity of our data has to be impeccable.

That’s why we selected Gary Langer of Langer Research Associates (NY) as our pollster. Langer 

is the former head of polling for ABC News and a former board member of the American 

Association of Public Opinion Researchers which sets the standards for the industry. All of our 

polls have been accepted by the Roper Center at the University of Connecticut, a premier 

repository that makes methodologically sound polls available to researchers. Summary results of

all of our polls are available on our web site at www.dri.org.

We’ve asked class action questions on each of our polls. Let me highlight some of the 

data that we’ve obtained. We found that 38 percent of all adult Americans say they’ve been 

invited to join a class action suit. Six in 10 of them declined. That means a total of 15 percent of
12

all adults report having participated in a class action suit, the equivalent of nearly 37 million 

adults. And while 68 percent feel their participation was worthwhile, nearly three-quarters of 

those who won an award say it was “insignificant.”

Basic attitudes on class actions are mixed. Fifty percent of Americans think most of these 

lawsuits as justified; 38 percent see them as unjustified, with the rest unsure. Ideology is a key 

factor: Liberals are 27 percentage points more apt than strong conservatives to see class-action 

suits as justified, 61 vs. 34 percent, as are Democrats over Republicans, 57 vs. 44 percent.

Yet there’s substantial bipartisan and cross-ideological consensus on two questions – the 

preference that a class-action plaintiff should show actual harm and opposition to opt-out 

enrollment. Regardless of partisan and ideological preferences, two-thirds or more agree on 

these.

I mentioned earlier that 78% of Americans would support a law requiring a showing of

actual harm in order for an individual to participate in a class action law suit. On another class 

action issue, 85% of Americans say class action lawyers should be required to obtain permission 

from individuals before enrolling them as plaintiffs.

Mr. Chairman, large majorities of the American public find it makes no sense to pay 

damages to people who have suffered no harm. They find it makes no sense to represent people 

in a lawsuit without asking their permission.

The public supports reform. It’s just common sense to them...and should be to us.
13

Feb. 27, 2015

Briefing Paper: Public Attitudes on Class-Action Litigation

Prepared for testimony of DRI-The Voice of the Defense Bar before the U.S. House

Subcommittee on the Constitution and Civil Justice

Independent public opinion polling sponsored by DRI-The Voice of the Defense Bar since 2012 

has found broad public support for significant reforms in the handling of class-action lawsuits, 

including opposition to opt-out enrollment and support for changes in who can join such suits.

These surveys also have demonstrated the vast reach of this type of litigation – 38 percent of all 

adult Americans say they’ve been invited to join a class action suit – as well as mixed feelings 

about their utility. While 54 percent think class actions often enable people to hold companies 

responsible, 62 percent say they often force companies that have done no wrong to pay damages.

Further, just half think most class action lawsuits that are filed are justified.

The random-sample telephone surveys have been conducted for DRI by the nonpartisan survey 

research firm Langer Research Associates, with rigorous methodology; neutral, balanced 

questions; and independent data analysis. The company, which polls for ABC News, Bloomberg 

and others, is a charter member of the Transparency Initiative of the American Association for 

Public Opinion Research and subscribes to its Code of Professional Ethics and Practices.

This memo summarizes some key findings from the research to date. Full results are available at 

DRI’s website, http://www.dri.org, including analyses, full questionnaires, topline results and 

methodological details. Raw datasets from these surveys have been deposited with the nonprofit 

Roper Center for Public Opinion Research at the University of Connecticut for unfettered 

secondary analysis.

Among the findings:

• Just 26 percent of Americans say that showing the potential for harm should be adequate 

to join a class-action lawsuit. Sixty-eight percent instead say plaintiffs should be 

permitted to join a class only if they can show they’ve actually been harmed.

The question: Do you think people should be allowed to join class-action lawsuits as 

plaintiffs only if they can show that they’ve been harmed by a company’s products or 

actions, or is it enough for them to show the potential for harm, regardless of whether 

they’ve actually been harmed?
14

• A vast 85 percent say class-action lawyers should be required to obtain permission from 

individuals before enrolling them as plaintiffs. Just 10 percent support the current 

practice allowing lawyers to include individuals whom they believe are eligible without 

getting their permission first, then providing them the opportunity to opt-out later.

The question: Lawyers who file class-action suits often include people who they think are 

eligible to be plaintiffs without first getting their permission. People who don’t want to 

participate can drop out later. Do you think lawyers should or should not be required to 

get permission from people before including them as plaintiffs in class-action lawsuits?

It’s probable that few Americans are closely following these issues; as such their expressed 

attitudes most likely reflect underlying world views, for example favoring personal precepts of 

fairness, individualism and self-determination. While additional information and argumentation 

could influence public views, the DRI survey’s baseline measurements provide valuable insight

into public preferences on these relatively little-studied issues.

Most broadly, basic attitudes on class actions are mixed. Fifty percent of Americans see most of 

these lawsuits as justified; 38 percent see them as unjustified, with the rest unsure. Ideology is a 

key factor: Liberals are 27 percentage points more apt than strong conservatives to see classaction suits as justified, 61 vs. 34 percent, as are Democrats over Republicans, 57 vs. 44 percent.

Yet there’s substantial bipartisan and cross-ideological consensus on the preference that a classaction plaintiff should show actual harm and on opposition to opt-out enrollment. Across partisan 

and ideological groups, two-thirds or more agree on the former, eight in 10 or more on the latter.

As noted, 38 percent say they’ve been invited to join a class action; six in 10 of them declined. 

That leaves a total of 15 percent of all adults who report having participated in a class action suit, 

the equivalent of nearly 37 million adults. As many say they joined “to send a message” as to

win an award. And indeed while 68 percent feel their participation was worthwhile, nearly threequarters of those who won an award say it was “insignificant.”

Selected results follow. Full results are available at http://www.dri.org.

Respectfully submitted,

Gary Langer, president 

Langer Research Associates 

New York, N.Y.

2012:

12. Have you yourself ever been invited to participate in a class action lawsuit, or 

not?

Yes No No opinion

8/19/12 38 62 *
15

13. (IF INVITED TO PARTICIPATE) Have your ever participated in a class action lawsuit, 

or not?

Yes No No opinion

8/19/12 39 61 1

12/13 NET:

--------------- Invited --------------- Never been No

NET Participated Never participated invited opinion

8/19/12 38 15 23 62 *

15. (IF EVER PARTICIPATED) Did you participate mainly to (win damages), to (send a 

message to the company involved) or some other reason?

Win damages Send a message Other reason No opinion

8/19/12 43 45 10 1

16. (IF EVER PARTICIPATED) Did you receive an award, or not?

Yes No No opinion

8/19/12 70 28 2

17. (IF EVER PARTICIPATED AND RECEIVED AN AWARD) Would you describe that award as 

substantial, modest or insignificant?

Substantial Modest Insignificant No opinion

8/19/12 8 19 73 *

18. (IF EVER PARTICIPATED) Do you think your participating in this suit was 

worthwhile, or not worth the trouble?

Worthwhile Not worth trouble No opinion

8/19/12

2013:

68 27 5

8. In class-action lawsuits, a group of people known as plaintiffs sue a company for 

what they see as a faulty product, bad service or an unfair policy. Do you think most 

class-action lawsuits filed in this country are justified or unjustified?

Justified Unjustified No opinion

10/6/13 50 38 13

9. Do you think people should be allowed to join class-action lawsuits as plaintiffs 

only if they can show that they’ve been harmed by a company’s products or actions, or 

is it enough for them to show the potential for harm, regardless of whether they’ve 

actually been harmed?

Show harm Show potential for harm No opinion

10/6/13 68 26 6

Compare to (2014): 4. Would you support or oppose a law saying that in order to join a 

class action lawsuit a person has to show that he or she has been actually harmed by a 

company’s products, services or policies, rather than just showing the potential for 

harm?
16

Support Oppose No opinion

9/21/14 78 19 4

10. Lawyers who file class-action suits often include people who they think are 

eligible to be plaintiffs without first getting their permission. People who don’t 

want to participate can drop out later. Do you think lawyers should or should not be 

required to get permission from people before including them as plaintiffs in classaction lawsuits?

Should be required Should not be required No opinion

10/6/13 85 10 5

Selected Charts
17
Filing Date Case Name Court

Cert/Merit 

(SCOTUS)

12-Mar-12 Ticketmaster v. Stearns U.S. Supreme Court C

21-Mar-12 Genesis Healthcare v. Symczyk U.S. Supreme Court C

18-May-12 Kia Motors v. Samuel-Basset U.S. Supreme Court C

18-May-12 Glazer v. Whirlpool Corporation Sixth Circuit

22-Aug-12 Willis of Colorado v. Troice U.S. Supreme Court C

24-Aug-12

Comcast Corporation v. 

Behrend U.S. Supreme Court M

27-Aug-12 Merrill Lynch v. McReynolds U.S. Supreme Court C

6-Sep-12 Genesis Healthcare v. Symczyk U.S. Supreme Court M

29-Oct-12

Standard Fire Insurance Co. v. 

Knowles U.S. Supreme Court M

3-Dec-12

, 

IBEW Health & Welfare Fund U.S. Supreme Court C

29-Mar-13 Sears v. Butler U.S. Supreme Court C

10-May-13 Willis of Colorado v. Troice U.S. Supreme Court M

9-Sep-13

Mississippi ex rel Hood v. AU 

Optronics Corp U.S. Supreme Court M

11-Oct-13 Halliburton v. Erica P. John Fund U.S. Supreme Court C

6-Nov-13

Sears v. Butler; Whirlpool v. 

Glazer U.S. Supreme Court C

6-Jan-14 Halliburton v. Erica P. John Fund U.S. Supreme Court M
24-Feb-14

US Foods v. Catholic Healthcare 

West U.S. Supreme Court C

3-Mar-14

Allstate Insurance Co. v. 

Jacobsen U.S. Supreme Court C

16-Jan-15 Tibble v. Edision International U.S. Supreme Court M

26-Feb-15

Jimenez v. Allstate Insurance 

Co. U.S. Supreme Court C

2-Apr-15

Sandquist v. Lebo Automotive, 

Inc. California Supreme Court

15-Apr-15 Braun v. Wal-Mart Stores, Inc. U.S. Supreme Court C

18-Jun-15 Spokeo, Inc. v. Robins, Thomas U.S. Supreme Court M

9-Jul-15 Campbell-Ewald Co. v. Gomez U.S. Supreme Court M

Jul-15

Tyson Foods, Inc. v. Peg 

Bouaphakeo, et al. U.S. Supreme Court M
Issue Author

Committee 

Member

Class Actions - Articles Standing

Mary Massaron, Hilary Ballentine, 

Josephine DeLorenzo Y

Collective Actions - Standing FLSA 

Jeffrey A. Lamken, Martin V. Totaro, Lucas 

M. Walker N

Class Actions (State) - Constitutional Due 

Process John P. Elwood, Eric A. White N

Class Actions - Certification Mary Massaron, Hilary Ballentine Y

Class Actions - Securities - State law Linda Coberly, Gene Schaerr Y

Class Actions - Certification - Expert 

Testimony

Carter G. Phillips, Jonathan F. Cohn, 

Matthew D. Krueger, Eric G. Osborne N

Class Actions - "Issue" certification Mary Massaron, Hilary Ballentine Y

Collective Actions - Standing FLSA 

Jeffrey A. Lamken, Martin V. Totaro, Lucas 

M. Walker N

Class Actions - CAFA Removal Paul D. Clement, Erin Morrow Hawley N

Class Actions - Standing

 , p p , 

Timothy S. Bishop, Emily C. Rossi N

Class Actions - certification - Consumer 

products Mary Massaron, Hilary Ballentine Y

State law securities class actions

Linda Coberly, Gene Schaerr, Marissa 

Ronk, Steffen Johnson Y

Class Actions - State AG mass actions - 

CAFA removal Mary Massaron, Hilary Ballentine Y

Class Actions - Securities Fraud 

Timothy R. McCormick, Richard B. Phillips, 

Jr., Michael W. Stockham N

Class Actions - certification - Consumer 

products Mary Massaron, Hilary Ballentine Y

Class Actions - Securities Fraud 

Timothy R. McCormick, Richard B. Phillips, 

Jr., Michael W. Stockham N
RICO and breach of contract class actions

John Cohn, David Carpenter, Wen Shen, 

Kate Comeford Todd, Sheldon Gilbert N

Class Actions - punitive damages David Axelrad, Curt Cutting, Felix Shafir Y

Class action; ERISA; statue of limitations Scott Smith Y

Class actions; overtime; commonality Willy Jay Y

Class actions; arbitration Jerry Ganzfried Y

Wage & Hour Class Actions Scott Smith Y

standing; statutory violations Mary Massaron Y

Class action mootness (Linda Coberly) Y

Class action certification - FLSA - wage and 

hour Willy Jay Y
TAB 6 

TESTIMONY OUTLINE OF 

SCOTT BURNETT SMITH,

BRADLEY ARANT BOULT CUMMINGS LLP

TAB 7

TESTIMONY OF

THOMAS SOBOL, HAGENS BERMAN SOBOL SHAPIRO LLP
Testimony of Thomas M. Sobol, Hagens Berman Sobol Shapiro LLP1

Advisory Committee on Civil Rules

Wednesday, January 4, 2017

United States District Court, Special Proceedings Courtroom

Phoenix, Arizona

Good morning. My name is Tom Sobol. I am a partner at the law firm of Hagens

Berman Sobol Shapiro LLP. My office is in Cambridge, Massachusetts. I have practiced 

complex civil litigation for almost 35 years – the first half with a large, primarily defense firm 

representing institutional clients, and since then I have represented consumers, health benefit 

providers, and others in class actions involving pharmaceutical pricing and other important 

issues affecting the delivery of affordable and effective health care.

I wish to address three issues regarding the proposed amendments to Rule 23 – two 

specific, and one general. These are my views; they are not necessarily those of my firm or my 

partners.

First. The proposed amendments to Rule 23 take an important step in expressly 

addressing – for the first time in the text of the rule itself – the effectiveness of distribution of 

relief to class members as a consideration in approval of a proposed class settlement. This is a 

very good thing. 

Historically, responsible class lawyers have made sure that the most effective means of 

distribution was used to get funds into the hands of class members. Most class counsel continue

these efforts long after the court has signed off on the settlement (and perhaps even released 

																																																							 1 This submission summarizes the testimony given on January 4, 2017. It is not a verbatim 

transcript.
2

funds for payment of class counsel fees). And many courts have been vigilant in working with 

class counsel to protect class member interests in receiving the benefits of settlement. As just 

one example, in presiding over a large pharmaceutical settlement seeking to distribute tens of 

millions of dollars to consumers of a widely sold pain medication, District Judge William Young 

from the Massachusetts bench pushed class counsel to gain confidential access to electronic drug 

purchasing records so that check could be sent directly to hundreds of thousands of consumers, 

bypassing the need for every consumer to submit cumbersome and largely ineffective claims

submissions.2

This process, and others like it, is now state of the art. But the state of the art remains 

largely uncodified and often unnoticed. Class actions are vulnerable to criticism – sometimes 

fairly, sometimes not – in the manner and content of distribution of settlement proceeds. Having 

the rule codify the importance of distribution puts appropriate focus on this issue by counsel and 

the courts.

In execution, however, the proposal must be modified in order to avoid an unintended 

ambiguity. The proposal currently reads that, in determining whether the relief provided for the 

class is adequate, the court must take into account “the effectiveness of the proposed method of 

distributing relief to the class, including the method of processing class-member claims, if 

required.”3 

This language is capable of two quite different interpretations. On the one hand, the 

language suggests that there is some absolute standard of distribution effectiveness; that for all 

cases, there is a general standard of how effective settlement distribution must be and, failing 

																																																							 2 See In Re Relafen, 231 F.R.D. 52 (D. Mass. 2005). (Claims were available both through a 

traditional publication for notice and claims submissions, and through the “subpoena project” to 

augment claims participation with a direct mailed check).

3 Proposed Rule 23(e)(2)(C)(ii).
3

that, the court should reject the proposal. On the other hand, the language might be interpreted 

as requiring consideration of the comparative effectiveness of reasonably diligent, alternative 

methods of distributing relief – given the class involved and facts of the case.

The first interpretation is quite troublesome; the second, not. There is no acknowledged 

absolute standard of effectiveness, no source by which one might be created, and little basis to 

impose one. In some situations – particularly for consumer classes of the elderly or sick – class 

membership is ascertainable but not easily accessed for distribution. Rejecting the proposal 

because it might not achieve some absolute standard, and thereby denying relief to those 

consumers who can be reached, would be neither just nor in the interests of any of the parties. 

And it does not appear to be the intent of the Advisory Committee to impose a new standard of 

effectiveness. 

Accordingly, I respectfully suggest that the proposed amendments to Rule 23(e)(2)(C)(ii) 

read: “the effectiveness of the proposed method of distributing relief to the class as compared to 

other, reasonably available methods of distribution under the circumstances, including the 

method of processing class-member claims, if any.”

Second. The proposed amendments also take an important step in addressing objections

to class settlements, both in proceedings before the district court and when pressing an appeal. 

Objections can serve good, but sometimes not-so-good, purposes; the proposals seek to achieve 

the balance needed to protect legitimate objections and deter self-serving ones.

One proposal requires the objection to “state whether [the objection] applies only to the 

objector, to a specific subset of the class, or to the entire class, and also state with specificity the 

grounds for the objection.”4 This makes sense. As the Committee Note states, objections should 

																																																							 4 Proposed Rule 23(e)(5)(A).
4

“provide sufficient specifics to enable the parties to respond to them . . . .”5 But this requirement 

does not go far enough, as it does not address a significant inconsistency in the rules relating to 

objectors.

Contrast the situation for class representative and their lawyers. To gain class 

certification status, Rule 23 contains specific requirements to ensure that the proposed class 

representative and class counsel will adequately represent the interests of the class. Rule 23(a) 

requires that “the claims or defenses of the representative parties [be] typical of the claims or 

defenses of the class” and that “the representative parties . . . fairly and adequately protect the 

interests of the class.”6 Rule 23(g) has extensive requirements for the appointment of class 

counsel, including the need to ensure that they will “fairly and adequately represent the interests 

of the class.”7 These rules ensure that those people who may affect the interests of the class 

members – representatives and lawyers – satisfy basic requirements to make sure their actions

are on behalf of the class, not self-interest. We spend a lot of energy in class practice ensuring 

the procedural integrity of the system by vetting the players.

These detailed rules do not apply to objectors and their counsel. Yet when an objection is 

filed, when it is pressed before the district court, and when an objector lodges an appeal, the 

substantial rights of all class members are affected. Objections can incur the expenditure of class 

resources, they can delay proceedings, and they can stall the issuance of relief to class members. 

They may urge changes that are not in the best interests of the class. But under the rules, merely 

by filing an objection, an objector and his or her counsel gain the de facto status of class 

																																																							 5 Committee Note for Subdivision (e)(5)(A).

6 Rule 23(a)(3) and (4), respectively.

7 Rule 23(g)(1)(B).
5

representative and class counsel. Their acts impact the class just as surely as those of bona fide

class representatives and counsel who have been vetted by the court under Rule 23(a) and (g).

Rule 23 – even with the proposed amendments – neither imposes nor suggests vetting 

requirements for objectors or objector counsel to ensure their actions are directed to benefit the 

interests of the class, rather than some other agenda. To file an objection, an objector simply 

files a pleading. An objector often professes to be doing so in the interest of the class as a 

whole. But there is no factual showing required (by declaration or otherwise) that the objector is 

legitimately a member of the class. Nor is there an explicit requirement that the court, to 

consider an objection, first determine that the objector is indeed a class member. There is no 

factual showing required by which an objector’s counsel establishes they are qualified to fairly 

and adequately represent the interests of the class, nor a requirement that the district court first so 

find in order for an objector’s counsel to press for changes to, or rejection of, a proposed class 

settlement. Yet those actions, again, may as surely impact the class as those of class counsel.

Accordingly, I respectfully suggest that the following be added to the end of the proposed 

amendment to Rule 23(e)(5)(A): “If an objection applies to a specific subset of the class or to the 

entire class, the court may require the class member filing such an objection to make a factual 

showing sufficient to permit the court to find (i) that the class member is a member of affected 

class or subset of the class, (ii) that the class member will fairly and adequately represent the 

interests of the class, and/or (iii) that the counsel for such class member is qualified to fairly and 

adequately represent the interests of the class. Absent such a finding, a court may overrule the 

objection without considering it further.” I note that this process is a “may” process; it codifies 

the inherent Article III powers of a district court judge; if under the circumstances the court finds 

no need to conduct the vetting, it need not do so.
6

Third. My final comment is a general observation. The nature of the proposed changes 

to Rule 23 are to me most noteworthy for the underlying principles they evince – principles 

which are not often publicly stated, and which are shared on both sides of the “v” and whether 

one’s political views are red state or blue. 

Rule 23 affords the federal judiciary with an administrative tool of enormous power. Our 

increasingly complex and consolidated economy brings about legal disputes with far-reaching 

consequences. We need jurists to be empowered to administer and adjudicate these large-scale 

disputes fairly and efficiently across large populations. We lean heavily on the judiciary to 

provide the forum to enforce complex environmental, civil rights, racketeering, consumer, and 

antitrust laws. And we lean on that same judiciary to protect defendants from unwarranted 

accusations. Rule 23 aids the courts in performing those functions.

These advisory proceedings involve lawyers from all backgrounds, judges from all over 

the country, academics both conservative and progressive, consumer advocates, and in-house 

industry counsel. We debate rule changes regarding considerations for class settlements, notice 

verbiage, and the terms for letting objectors out of a class objection. We see these issues as 

important to the administration of civil justice. They are. 

While we may come out differently on particular rules changes or how particular class 

actions should have come out, we do not debate the importance of the endeavor. We do not 

debate whether Rule 23 should exist, or if it can apply to classes whose members have different 

sized claims. Of course it should, and of course it does. We share a belief so fundamental that it 

almost goes without saying: that Rule 23 procedures are vital to administration of justice, both in 

enforcing the rights of civil plaintiffs and in protecting defendants from the cost and time of 

multiple litigations. 
7

Segments from the other two branches of the federal government need not meddle with 

Rule 23’s broad application, carefully enforced by an energetic and capable judiciary. And some 

comments have been presented to this Committee to undertake rules changes that would work 

sweeping limitations on the power of the judiciary to exercise Rule 23 powers. Any such 

suggestion should only be entertained on the basis of clear and convincing evidence that 

documented abuses have occurred, and that the proposed limitation is narrowly tailored to 

address only that documented, systemic abuse. None have been shown to the Committee at this 

time.

Thank you.