Robert H. Klonoff · May 2014
82 GEO. WASH. L. REV. 798 (2014)
The courts are in disarray regarding the due process rights of absent class members in mandatory Rule 23(b)(1)(A) and (b)(1)(B) class actions involving money damages. That confusion is the result of a series of Supreme Court decisions, culminating in Wal-Mart Stores, Inc. v. Dukes in 2011, in which the Court suggested in dictum that the Due Process Clause requires that absent class members be given notice and the right to opt out of class suits involving money damages.
After examining the history and purpose of Rule 23(b)(1)(A) and (b)(1)(B), and after considering the due process issues raised by such classes, this Article concludes that due process requires reasonable notice in (b)(1) suits involving money damages. Notice enables class members to monitor the litigation and, if necessary, intervene. By contrast, due process does not re- quire opt-out rights. Indeed, were opt-out rights required, the entire purpose of a (b)(1) class—to protect the rights of the defendant or absent class members—would be thwarted.
