This Article does not delve deeply into the substantive issues of Wal-Mart, Concepcion, or Italian Colors...My focus is on how Rule 23 has fared, structurally and practically, in the aftermath of the âcommon answerâ formulation of Wal-Mart; three other decisions of the Roberts Court, Dukes, Amgen, and Comcast; and three cases that the Roberts Court did not ultimately take in the wake of Amgen and Comcast: its denials of review in Whirlpool, Butler, and Deepwater. Also discussed is the newly intense debate on the use of cy pres, catalyzed by Chief Justice Robertsâ extraordinary âStatementâ accompanying the denial of certiorari in Marek v. Lane. This Articleâs brief Wal-Mart discussion focuses on the case as an instanceâperhaps anomalousâof the Courtâs indifference to the structural constraints of Rule 23 itself in transporting the requirement for predominance of common issues from Rule 23(b)(3) to Rule 23(b)(2). This structural disruption at once dismayed employment rights advocates and, intentionally or not, provided a practical tool for the design and trial of class cases by plaintiffs
On July 26, 2000, final approval was granted to a landmark 1.25billionsettlementoftheclaimsofaninternationalclassofHolocaustvictimsagainstSwissBanksthatengagedinmassivelootingandmisappropriationofassetsentrustedtothembyhundredsofthousandsofJewsandothergroupsimprisoned,murdered,anddislocatedbytheNaziregime.TheSwissBankscomplaintslinkedtheactionsofSwissfinancialinstitutionstotheNaziregimeanditsprogramofgenocide.TheSwissBankslitigationwasbroughtandsettledunderfederalclassactionrulesintheUnitedStatesDistrictCourtfortheEasternDistrictofNewYork.Theclassactionwasbroughtonbehalfoffiveplaintiffclasses,whosemembersresidedinoverfiftycountriesandspokeoverthirtylanguages.Mostofthecourtâappointedclasscounseleitherservedwithoutfeeinthefiveâyearprosecutionandsettlementofthelitigationordonatedtheircourtâawardedfeestointernationalhumanrightsendeavors.OnDecember5,2000,asecondcourt,theUnitedStatesDistrictCourtfortheDistrictofNewJersey,approvedaninternationaldiplomatic/legalagreementcreatingafoundationtitledRemembrance,ResponsibilityandtheFuture,(theFoundation),fundedwithDM10 Billion (approximately $5 billion U.S.D.). The funding for the Foundation was contributed in equal shares by the German government and German industry, to compensate those who worked as slave or forced laborers for the Nazi regime in German factories, were subjected to medical experimentation, were held in Kinderheims (children\u27s homes) or whose property or assets were misappropriated. Again, this litigation was brought, and its claims were settled, on behalf of an international class of Holocaust victims, survivors, and their families. A small set-aside fund paid notices, administrative costs, and all attorneys\u27 fees
As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The 2018 changes â along with other on-the-ground developments â are important steps toward improving the class action settlement process