Notice in Rule 23(b)(2) Classes

This past April, the 21st Annual Clifford Symposium on Tort Law focused on The Supreme Court, Business, and Civil Justice, which prompted me to return once again to the notion of participation rights in aggregate litigation.  It’s a broad and nuanced topic, but one of those nuances involves how to address participation opportunities in mandatory classes under Rule 23(b)(1) and (b)(2).  As it stands now, those rules do not require parties to notify class members at all until they reach a settlement, even though membership within the class is mandatory.  Presumably, if the class is fully litigated, those rules require no notice whatsoever.

One can surmise the rationale lies in the remedy: mandatory classes entail indivisible remedies that apply to all or to none equally.