How Like a Winter? The Plight of Absent Class Members Denied Adequate Representation

Authors

Susan P. KoniakFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

10-2004

ISSN

0745-3515

Publisher

University of Notre Dame Law School

Language

en-US

Abstract

Class actions assume absent class members. ² Notices in class actions tell class members that they need not show up in the courthouse, although they may if they choose.³ Class members are told that class counsel and the named class representatives will look out for them, although if they choose to hire their own lawyer, she may appear on their behalf.⁴ They are also routinely told that once the decision in the class action becomes final they will be bound by it, losing any and all right to protest the resolution of their claims by the class action court or to bring an individual proceeding on the claims resolved by the class suit.⁵ They will be bound by it, that is, unless they opt out in those class actions that provide an opt-out right.⁶

Is the language in notices telling absent class members that their claims cannot be brought in any other court true in all circumstances? If one sits out a class action, trusting that her rights will be protected by class counsel and the named representatives, and those rights are not, is she nonetheless bound by the judgment?

Recommended Citation

Susan P. Koniak, How Like a Winter? The Plight of Absent Class Members Denied Adequate Representation , in 79 Notre Dame Law Review 1787 (2004).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2131