Academic journal article Defense Counsel Journal

Unfinished Business

Academic journal article Defense Counsel Journal

Unfinished Business

Article excerpt

As this history may demonstrate, the committee has reason to be both humble, given the complexity and magnitude of the issues, but also proud of its work over the past ten years. It has done much to enhance judicial supervision of the class action process and provide new tools for judicial review, at both the trial and appellate levels.

There are several areas that may yet deserve additional attention and that have not received definitive answers from the committee. Each has proven controversial and difficult.

The first is whether the rule should incorporate a separate standard for settlement classes. This is a familiar topic. We may wish to reconsider this issue in light of case law under Amchem as well as the new proposal on settlement review, including the permission to class members to exclude themselves from `settlement upon review of the terms. There may be need for further empirical work in this area.

Second, the unique questions surrounding the settlement of future claims in mass tort cases may also merit continued study.

Third, we may wish to reconsider the opt in/opt out question. …

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