Over the past couple of decades, tens of millions of Americans have become used to using new technology for routine communication and business transactions. But the class notice requirements of Rule 23 have not kept pace with these real-world conditions. Today, the rule’s class notice provisions look like relics of the pre-Internet world, in obvious need of an upgrade.
In its draft proposals, the Rule 23 Subcommittee of the Advisory Committee on Civil Rules presents a timely but incomplete solution to the problem created by the antiquated class notice provisions. If adopted, they would explicitly allow notice of class certification to class members by electronic or other means. This is a laudable and necessary proposal, but a revision that would also include such language in the rule’s provisions governing settlement notice, fee notice, and discretionary notice would make the change comprehensive and, therefore, more effective.