BETTER LATE THAN NEVER - NOTICE AND OPT OUT AT THE SETTLEMENT STAGE OF CLASS-ACTIONS

Whether the Due Process Clause requires individual notice to class act ion members has not yet been resolved by the Supreme Court. Under the literal terms of Rule 23, however, courts currently require early indi vidual notice in (b)(3) class actions, while leaving notice to the dis cretion of the trial court in (b)(1) and (b)(2) actions. In this Artic le, Professor Rutherglen questions the difference in procedural protec tions afforded to (b)(3) class members, on the one hand and (b)(1) and (b)(2) class members, on the other. Arguing that effective notice nee d nor meet the rigorous standard of early individual notice in (b)(3) class actions, Professor Rutherglen suggests a new rule that would giv e class members the right to receive individual notice later in the pr oceeding, and, at least for (b)(3) class members, the right to apt out at the settlement stage. Such a rule would better protect class membe rs because it would provide notice at a time when information about ri te merits of the claim is more readily available, It also would empowe r class members to register their dissatisfaction with the performance of the class attorney by opting out. Where previously scholarship emp hasizes the procedural dimensions of notice and the right to opt out u nder the Due Process Clause, Professor Rutherglen emphasizes the subst antive aspects of the right lo opt out He stresses the importance of m aking substantive changes in rite law that would provide for better ma nagement of both large class actions and related individual claims.