The captioned parties to proposed class action lawsuits often settle before the court certifies the alleged class. The federal courts have not reached a consensus on the applicability of federal rule 23(e) to such "precertification settlements," but a growing number of federal courts order notice of proposed dismissals and compromises only when such notice is necessary to protect the legitimate interests of the putative class. The settled practice of looking to the Federal Rules of Civil Procedure when California authority is lacking supports adoption of this "functional approach" in California.
This Note argues that the settling parties should not be required to notify absent class members unless the court determines that the absentees are actually and justifiably relying on the captioned parties to champion their rights. By investing the courts with discretion to determine those cases in which notice is truly warranted, the laudable policies of protecting class members and encouraging settlements will be vindicated and litigants will be furnished with meaningful guidance when they seek nonadversarial resolution of their disputes.
J. Spencer Schuster,
Precertification Settlement of Class Actions: Will California Follow the Federal Lead,
40 Hastings L.J. 863
Available at: https://repository.uchastings.edu/hastings_law_journal/vol40/iss4/6