Court-Facilitated Notice in Age Discrimination Class Actions

This article previews the issues and arguments in Hoffman-La Roche, Inc. v. Sperling, on the Supreme Court’s 1989-90 appellate docket. The issue in Hoffman-La Roche Inc. is the extent to which a federal district court may facilitate giving notice to individuals that a class action brought under the Age Discrimination in Employment Act is pending against their employer.The notion that large numbers of people together can seek remedial or compensatory relief under the law is now a mainstay of the federal rules of procedure and many federal statutes. The most common device for obtaining such aggregate justice is the class action, the bedrock of civil rights litigation in the 1960s and 1970s. When a large group of individuals collectively institute a lawsuit, the problem of giving notice to the class claimants has dogged the courts for years. In broad outline, the issue entails questions concerning who must give and receive notice of the lawsuit, when, in what form, and the burden of expense. The efficacy of certain types of class actions was curtailed in the 1970s when the Supreme Court ruled that the party bringing the class action must pay the costs of giving notice to all the class members.Hoffman-La Roche raises yet another interesting issue relating to the problem of getting the word out in lawsuits involving multiple claimants under a federal remedial statute, ADEA. The issue concerns the extent to which the court may involve itself in facilitating or assisting the initial complainants in notifying similarly aggrieved individuals that a lawsuit exists and that they may join the lawsuit against the alleged wrongdoer. Characterized in less neutral fashion, the issue involves the extent to which the court may engage, in effect, in client solicitation for a class action. Not only will this case flesh out Supreme Court doctrine on the problem of giving notice in aggregate lawsuits, but it will give the Court an additional opportunity to comment on another aspect of client solicitation after its recent decision in Shapero v. Kentucky Bar Association, 108 S.Ct. 1916 (1988).As an initial matter, the Supreme Court will have to resolve whether court-authorized notice is permissible in light of the legislative intent of the Fair Labor Standards Act and Age Discrimination in Employment Act. The Court may resort to canons of construction concerning legislative silence, or look more broadly to effectuating the intent of so-called "remedial statutes." The Court also may resort to more general considerations behind the notice requirements of Rule 23 class actions, or to an array of policy reasons why federal courts should or should not assist plaintiffs in locating and notifying potential parties to age discrimination lawsuits.Finally, lurking in these dense procedural thickets is an ethical question regarding the propriety of a court assisting a party to a lawsuit in notifying others of the right to sue. To an extent, this is a problem of characterization; Hoffman La-Roche views court-authorized notice as little short of stirring up litigation, with overtones of "barratry and champerty" (two legal concepts that have not graced Supreme Court argument in quite some time). Sperling, on the other hand, views court-facilitated notice as enabling him to notify fellow workers whom he might not otherwise be able to reach. In any event, the Court's decision in Hoffman will affect litigants' ability to proceed effectively in age discrimination cases.