To be sure, district courts enjoy “wide latitude” on the scope of a hearing necessary to “reach an informed, just and reasoned decision.” UAW v. Gen. Motors Corp., 497 F.3d 615, 635 (6th Cir. 2007) (citation omitted). So if the class notice required written objection as a prerequisite to participation at the fairness hearing, and the court receives no written objections, then a fairness hearing could theoretically be a one-minute exercise in taking appearances, acknowledging the lack of objectors, and accepting the motion for approval for consideration on the papers. As empty as such an exercise may be, Rule 23(e)(2) does appear to require it.
For defense attorneys, a judge’s sua sponte cancellation of a fairness hearing for an uncontested settlement raises practical questions. The trigger for a mandatory fairness hearing is if the settlement “would bind class members.” Could the failure to hold a fairness hearing risk an appeal, a collateral attack on the settlement, or a new action from an absent class member? Or would the failure to object in writing waive such a challenge? And if a failure to object in writing would lead to waiver, then why does Rule 23 require a fairness hearing even when no class members have objected to the proposed settlement?
It does not appear that this issue has ever been litigated. Indeed, it is admittedly improbable that a non-objecting class member would seek to disturb a class settlement post-approval. But defense attorneys seeking to ensure the enforceability of a release may still want to avoid such risk altogether by pushing to ensure that a fairness hearing take place, even if just as a formality. At times, this may include pushing back (or at least making a record) when a judge sua sponte adjourns a fairness hearing over an uncontested application for final approval.