tunity to dissociate themselves from the litigation. But it is a misreading of (b)(3) to suppose that it simply picks up any old spurious action and runs with it; 150 (b) (3) is well confined. In the actual handling of pioneer cases under the rule, the courts have prevailingly shown good understanding in spelling out and applying the delimiting criteria; 151 on this crucial matter the

150 A casually mistaken identification of spurious actions with those that will be accepted under new (b) (3) seems to underlie Mr. Comegys's criticisms in The Advantages and Disadvantages of a Class Suit Under New Rule 23, As Seen by the Treble Damage Defendant, 32 ANTITRUST L.J. 271 (1966), as Judge Frankel apprehended. Frankel, Amended Rule 23 From a Judge's Point of View, 32 ANTITRUST L.J. 295, 296-99 (1966). The very title of Comment, Spurious Class Actions Based Upon Securities Frauds Under the Revised Federal Rules of Civil Procedure, 35 FORDHAM L. REV. 295 (1966), invites the same confusion. The word "spurious" should ultimately disappear altogether from the classaction lexicon.

151 Thus we find district courts carefully examining whether the common questions "predominate" as required by subdivision (b)(3). See the contrasting opinions by Judge Christensen in Hirschi v. B. & E. Sec., Inc., 41 F.R.D. 64 (D. Utah 1966), and Harris v. Jones, 41 F.R.D. 70 (D. Utah 1966). Note that, while disallowing the class features of the action in Hirschi, the judge allowed the action to stand for the individual plaintiff with an indication that interventions would be welcomed. The result is something on the order of a spurious action as it was conceived under the old rule, in contrast to the (b)(3) action under the new. See also Kronenberg v. Hotel Governor Clinton, Inc., 41 F.R.D. 42 (S.D.N.Y. 1966); Fischer v. Kletz, 41 F.R.D. 377 (S.D.N.Y. 1966); Berger v. Purolator Prods., Inc., 41 F.R.D. 542 (S.D.N.Y. 1966). Courts have shown a heightened concern about adequacy of representation in (b)(3) actions- a question related to the predominance of common questions and thus to the solidarity of the class-because the eventual judgment now extends in terms to the whole class as defined. See Hohmann v. Packard Instrument Co., II FED. RULES SERV. 2d 23a.52, Case 1 (N.D. Ill. June 30, 1967); Eisen v. Carlisle & Jacquelin, 41 F.R.D. 147 (S.D.N.Y.), motion to dismiss appeal denied, 370 F.2d 119 (2d Cir. 1966), cert. denied, 386 U.S. 1035 (1967); and the Fischer and Kronenberg cases, supra. With respect to the required finding that a class action is "superior" to other adjudicative procedures, see the Fischer, Berger, and Hohmann cases, supra.

Two highly interesting attempts have been made to bring habeas corpus proceedings on a class basis on behalf of prisoners in state prison under death sentence, the ground asserted being the unconstitutionality of the death penalty or the procedures leading to that sentence. The question of the propriety of a class action has been deferred in Adderly v. Wainwright, 36 U.S.L.W. 2128 (M.D. Fla. Aug. 9, 1967). It has been ruled against petitioners in Hill v. Nelson, 36 U.SL.W. 2146 (N.D. Cal. Aug. 24, 1967), for the reason of impracticality on the particular facts, but the court is reshaping the proceedings to try to insure representation for the prisoners and consolidation of common questions.

In the Northern District of Illinois, Eastern Division, Judge Becker is presiding over an effort to obviate the individual handling of parallel claims against numerous alleged patent infringers through the use of an omnibus rule 23 action with defendant subclasses. Certain of the subclasses have been held to qualify under both (b)(1) and (b)(2), others under (b) (3). See Memorandum and Order, Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., Civil No. 62 C 1761 (July 3, 1967), as corrected, (July 27, 1967).

i

record, as far as it goes, should allay the fear expressed by Justice Black that the new rule does not afford sufficiently intelligible standards, and thus gives district judges power without bounds.": Again, the critics undervalued the (c) (2) notice, even when considered apart from the discretionary notice possibilities of subdivision (d). In particular cases it may be practicable to give notice under (c) (2) which will reach each member of the class. That will not be possible in all cases, but when large numbers of people are dealt with, perfect notice, while on the one hand hard to attain, becomes on the other hand unnecessary because of the probability that some individuals who are representative of differing opinions within the group (if such differences exist) will in fact be reached and will speak up.153 Notice which is fair in the circumstances of the case is a constitutional requirement. We can therefore expect courts to work toward providing the best practicable notice, as indeed (c)(2) in terms requires. And in the end, if the notice has not been actually fair to the level of due process, the Constitution can be relied on to deny binding force to the judgment.15 In other words, it need not be pretended here, of all places, that the procedure can never misfire.13

The entire regulation of (b)(3) cases should be seen in contrast to the previous practice. Because of difficulties in distinguishing true from spurious actions, some proceedings now under (b)(3) might have wound up as true actions without any notice to members or opportunity to opt out; or they might have wound up as spurious actions with the judgment not a class judgment

182 See note 10 supra.

153

Cf. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 319 (1950). 154 Considering an action with a plaintiff class, the question of constitutional sufficiency of notice could be raised by a member who was not notified and did not learn of the class action while it was pending, and, after a judgment in that action which he considered unfavorable, brought his own lawsuit — but still within the period of limitations. Meanwhile his interests would ordinarily have been represented in the action, although in a sense in invitum, and he would have to consider whether he could ultimately achieve more in his separate suit.

155 In a thoughtful address on class actions to the Eighth Circuit Judicial Conference on Sept. 18, 1967 (to be published in Federal Rules Decisions), Judze Frankel makes the point that in an extremity the Constitution will backstop the rule, but he believes there will be no incongruity in according full binding effect to the judgments in (b) (3) cases where the relevant criteria are faithfully pursued. It is not unprecedented "to conclude in one fair proceeding the interests of people who do not participate in person or by counsel"; old examples are the true class action and in rem proceedings. But the "familiar notions of necessity or convenience or 'practicability' weighed with or against basic principles of fairness" do not exhaust themselves with these examples; they are "flexible and adaptable to the emerging needs of an increasingly complex community."

i

39-281 O 70 - 21

and nonintervening members untouched, at least according to the conventional learning. In sum, the new pattern is preferable.

It was suggested that the judgment in a (b)(3) class action, instead of covering by its terms all class members who do not opt out, should embrace only those individuals who in response to notice affirmatively signify their desire to be included (others might perhaps be included if considered essential by the court).156 It is unfair to a defendant opposing the class, so the argument goes, to subject him to possible liability toward individuals who remain passive after receiving notice or who may, indeed, have had no notice of the proceeding: under the previous law, some, perhaps many, of those persons might simply have foregone any claims against the defendant; they might in fact have remained ignorant of having any possible claims. Running through this argument was the idea that litigation should be a matter for distinct action by each individual.

The argument again often slipped away from the terms of subdivision (b)(3) and loosely equated such a case with the spurious action as commonly described in the textbooks. In suggesting that under the previous regime the defendant's exposure was limited to individuals who had actively pushed their own claims, the argument ignored certain realities; namely, that courts had sometimes evidently classified actions as true in order to attain judgments covering the class; that they were tending to allow interventions in spurious actions although the limitations period would otherwise have run on the claims; that they were going to the length of permitting "one-way" interventions. Thus the previous law was slackening its demand for vigilant pursuit of claims by the individuals making up the so-called spurious class. In fact in a spurious action the defendant must have realized that many claims stood back of those held by the named plaintiffs and intervenors; therefore he defended strongly knowing that the determination in the litigated case would at least affect settlements with other individuals. It emerges, therefore, that as a practical matter the new rule is not a violent change injurious to the defendant. The rule has advantages for the defendant, too, in that it attempts to conclude the class when the decision is unfavorable to it. If, now, we consider the class, rather than the party opposed, we see that requiring the individuals affirmatively to request inclusion in the lawsuit would result

156 This issue was mentioned by Judge Frankel, supra note 150, at 299-300; cf. Cherner v. Transitron Electronic Corp., 201 F. Supp. 934, 936 (D. Mass. 1962), supplemental memorandum, 221 F. Supp. 48 (D. Mass. 1963).

in freezing out the claims of people—especially small claims held by small people — who for one reason or another, ignorance. timidity, unfamiliarity with business or legal matters, will simply not take the affirmative step. The moral justification for treating such people as null quantities is questionable. For them the class action serves something like the function of an administrative proceeding where scattered individual interests are represented by the Government. In the circumstances delineated in subdivision (b)(3), it seems fair for the silent to be considered as part of the class. Otherwise the (b)(3) type would become a class action which was not that at all-a prime point of discontent with the spurious action from which the Advisory Com mittee started its review of rule 23.

The provisions for informal notice in the new rule-notably the mandatory notice advising class members of their option in (b)(3) cases will certainly raise administrative or managerial questions, and we may expect judges to react variously at the beginning, a few with petulant predictions of doom, many with cheerful readiness to experiment. There have been questions deciding upon the best practicable medium of notice and the timing of notices.158 There is the problem of preserving throughout accuracy and impartiality in the substance of statements sent to class members, as well as a general tone which will not lend itself to unseemly solicitation of clients or imply official approval of claims as yet untried.159 These are undoubted difficulties, but control is in the court, and it should be recognized that court

157 See, under the new rule, Brennan v. Midwestern United Life Ins. Co.. F. Supp. 673, 634 (N.D. Ind. 1966); Kronenberg v. Hotel Governor Clinton, Inc. 41 F.R.D. 42 (S.D.N.Y. 1966); cf. Booth v. General Dynamics Corp., 264 F. Supp. 465 (N.D. Ill. 1967). Difficulties in hitting upon an effective means of notice wil probably be found linked with more basic deficiencies in the action. See Richland v. Cheatham, II FED. RULES SERV. 2d 23a.52, Case 2 (S.D.N.Y. July 27, 196T): Eisen v. Carlisle & Jacquelin, 41 F.R.D. 147 (S.D.N.Y.), motion to dismiss cppeal denied, 370 F.2d 119 (2d Cir. 1966), cert. denied, 386 U.S. 1035 (1957).

It may be assumed that, when the method of notification has been decided upon. plaintiffs ordinarily will be asked to attend to the mechanics of publication an! distribution and will initially bear the expense. The suggestion in Scheel Dist. v. Harper & Row Publ., Inc., 267 F. Supp. 1001, 1004-05 (E.D. Pa. 1957), that court facilities must inevitably be used to prepare and forward notices, seems unwarranted. The court may surely call on the parties for assistance in preparing drafts of notices and criticizing them.

158 This is related to the determination and order under subdivision (c)(1). Some of the questions involved in setting up a timetable are discussed in Julie Frankel's address, supra note 155. As to the status of the action pending the (c) (1) determination, see the careful opinion in Philadelphia Elec. Co. v. Anaconda Am. Brass Co., 41 F.R.D. 518 (E.D. Pa. 1967).

159

Cf. Cherner v. Transitron Electronic Corp., 201 F. Supp. 934, 936 (D.

controlled notice is an alternative to private activities that can be quite unpalatable.

We need not be long delayed by the suggestion that the provisions for the (b)(3) action, especially those which state that the judgment shall cover in terms all members of the class as defined (apart from opters-out), have the effect of extending jurisdiction despite the declaration of rule 82 that the rules "shall not be construed to extend ... the jurisdiction of the United States district courts "Jurisdiction" here means subject matter jurisdiction, and in this respect rule 82 may describe an inherent limitation on the rulemaking power.160 The argument seems to be that only in the more "standard" situations for class actions may the citizenship of members other than the actual parties be disregarded for diversity of citizenship purposes; that is, it is only in those situations that an ancillary principle operates to permit the judgment to cover the class notwithstanding absence of diversity as to some of the class members; and this principle cannot be modified by rule.161 Thus it would be argued that in actions under the new rule which would formerly have been spurious, the judgments cannot be given full reach to a class with nondiverse elements.162 But even if one should accept dubious doctrine about the outworn spurious category as immovable law,163 it would not be decisive of problems under the new rule. New rule 23 alters the pattern of class actions; subdivision (b)(3), in particular, is a new category deliberately created. Like other innovations from time to time introduced into the Civil Rules, those as to class actions change the total situation on which the statutes and theories regarding subject matter jurisMass. 1962), supplemental memorandum, 221 F. Supp. 48, 51-52 (D. Mass. 1963). See also Eisen v. Carlisle & Jacquelin, 41 F.R.D. 147, 152 (S.D.N.Y.), motion to dismiss appeal denied, 370 F.2d 119 (2d Cir. 1966), cert. denied, 386 U.S. 1035 (1967); Baim & Blank, Inc. v. Warren-Connelly Co., 19 F.R.D. 108, 111 (S.D.N.Y. 1956).

160 See Mississippi Publ. Corp. v. Murphree, 326 U.S. 438, 445 (1946); cf. Sibbach v. Wilson & Co., 312 U.S. 1, 11-14 (1941).

161 The argument appears to be made in Cohn, supra note 1, at 1219-22. This article is cited in School Dist. v. Harper & Row Publ., Inc., 267 F. Supp. 1001, 1005 (E.D. Pa. 1967), but here the judge seems concerned with extension of jurisdiction in the sense of jurisdiction over the person, a power not denied to the rulemakers. The Harper & Row case is questioned in Siegel v. Chicken Delight, Inc., II FED. RULES SERV. 2d 23b.3, Case 2 (N.D. Cal. Aug. 17, 1967).

163 The logic of this argument would actually put in question the permissible extent of the judgment in some (b)(2) cases as well, which might formerly "have been thought spurious. See Cohn, supra note 1, at 1219-21.

163 The doctrine was itself eroded by the cases allowing interventions by nondiverse class members in spurious cases. See note 110 supra.