Due Process and the Absent Class Member – How Due Process Rights Affect The Prosecution, Defense and Settlement of Class Actions in State and Federal Courts

Class Action litigation remains high stakes litigation wherein the size of the class can ultimately dictate whether a class action can be maintained, defended or settled. Size of the class does not merely depend on the allegations of conduct and harm, but also depends on the extent that a Court can obtain jurisdiction over absent class members. The Court's interpretation of the extent to which it can obtain jurisdiction over absent class members can be the difference between obtaining or defeating class certification in the first instance and the ability to resolve a class action in the second instance.

In Wal-Mart v. Dukes, the United States Supreme Court addressed the issues of due process rights of absent class members under Federal Rule of Procedure 23 in connection with a proposed class action. In its decision, the Court specifically left unanswered certain questions surrounding the extent to which due process impacts the ability to prosecute, certify, and settle class actions. Not only has this left for interpretation the due process issues at the lower court levels, state courts have addressed these issues in connection with their own state rules governing class actions (which at times may materially differ from the federal court rules) leading to some unpredictability in how due process rights of absent class members can alter the course of litigation and/or settlement.

This course examines the most recent decisions in the area and look at various state court decisions, including Alabama, Alaska, Arkansas, California, Delaware, Massachusetts, New York, Oho, South Carolina and Texas, that practitioners and in-house counsel should be aware when faced with a class action. 

1. Articulate the general concepts of class actions and basic jurisdictional issues related to absent class members
2. Understand how constitutional due process for absent class members can be a major factor in litigation and resolution of class actions in state and federal court
3. Examine how state and federal courts have interpreted and applied constitutional due process principles to class actions for purposes of certification and settlement of class actions