1 Class actions in United States federal courts are governed by rule 23 of the Federal Rules of Civil Procedure. Rule 23 subdivides class actions into three categories with somewhat different certification criteria and different provisions relating to notice and exclusions from the class. This tripartite division can be understood only in terms of the history of class actions in United States federal courts and is dropped by the Commission (at 334–36). The structure of rule 23 is discussed by the Commission at 52–56 of its report.Google Scholar

2 See, e.g., Arthur R. Miller, An Overview of Federal Class Actions: Past, Present and Future 26 (Washington, D.C.: Federal Judicial Center, 1977); Comment, Federal Rule of Civil Procedure 23(a)(3) Typicality Requirement: The Superfluous Prerequisite to Maintaining a Class Action, 42 Ohio St. L.J. 797 (1981).Google Scholar

3 A major barrier to class recovery by franchisees and dealers in the United States has been the refusal of courts because of a possible conflict of interest to permit former franchisees and dealers to represent current franchisees and dealers. See DuVal, Benjamin S. Jr., The Class Action as an Antitrust Enforcement Device: The Chicago Experience (II), 1976 A.B.F. Res. J. 1273, 1332–34.Google Scholar

4 See, e.g., In re Hotel Telephone Charges, 500 F.2d 86 (9th Cir. 1974).Google Scholar

5 Under rule 23 the predominance of common questions and the superiority of the class action to other relief mechanisms are independent elements, both of which must be satisfied for a class to be certified under (b)(3). The “difficulties likely to be encountered in the management of a class action” is listed as a factor to be considered in determining predominance and superiority. In practice, however, manageability has often been treated as a separate element.Google Scholar

6 Rule 23 requires that notice of class certification and a right to opt out of the class be afforded in class actions certified under (b)(3), the principal basis for damage class actions. There is no express requirement of certification notice or a right to opt out in actions certified under (b)(1) or (b)(2) (which may also contain a prayer for monetary relief). Although there is some authority that to bar a claim for monetary relief in a subsequent proceeding, class members must be given notice (although not necessarily a right to opt out) at some stage in the proceeding, the preponderance of lower court opinions have concluded that notice is not constitutionally required in (b)(1) and (b)(2) class actions prior to judgment.Google Scholar

7 Fed. R. Civ. P. 23 (c)(2). See Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).Google Scholar

8 See DuVal, supra note 3, at 1339–40.Google Scholar

9 The Commission's discussion, although distinguishing carefully between the proof of damages and the distribution of the recovery (at 536–37), tends to blur the distinction between the proof of the damages of the class and the determination of the damages of individual class members. This is particularly evident in the Commission's discussion of United States law where it cites as cases supporting an aggregate assessment cases which support only the proposition that the damages sustained by individual class members need not be proved by them individually if they can be established in some other way (at 540–43).Google Scholar

10 In re Hotel Telephone Charges, 500 F.2d 86, 89 (9th Cir. 1974). See also Windham v. American Brands, Inc., 565 F.2d 59, 668 (4th Cir. 1977) (en banc), cert. denied, 435 U.S. 968 (1978) (contrasting cases in which minitrials were necessary with those in which damages could be shown on a formula basis).Google Scholar

11 See, e.g., In re Corrugated Container Antitrust Litigation, 1980-81 Trade Cas. ¶63810 (S.D. Texas 1981) (purchases of class members to be determined from defendant's records); In re Mid-Atlantic Toyota Antitrust Litigation, 525 F. Supp. 1265, 1283–85 (D. Md. 1981) (determination of aggregate damages from defendants' records or through sampling permissible).Google Scholar

12 The Commission states that “the only American class action cases in which…[cy-preGs] distributions have been approved are cases involving settlements” (at 574). Although, so far as I know, this statement is literally true, it should be noted that a minority of federal court decisions, including a recent Seventh Circuit opinion in which the issue was given detailed analysis, have concluded that under some circumstances the amount remaining after payment of claims need not be returned to the defendant. See Simer v. Rios, 661 F.2d 655,675–77(7thCir. 1981), cert. denied, 456 U.S. 917 (1982)(dictum); In re sugar Industry Antitrust Litigation—Western Cases, 1977-1 Trade Cas. ¶61373, at71331 (N.D. Cal. 1976); In re Antibiotic Antitrust Actions, 333 F. Supp. 278, 282 (S.D.N.Y. 1971).Google Scholar

13 D. N. Dewees, J. R. S. Prichard, & M. J. Trebilcock, Class Actions as a Regulatory Instrument 36–37 (Toronto: Ontario Economic Council, 1980).Google Scholar

14 American Bar Association, Model Code of Professional Responsibility DR 5–103(B). The Model Rules approved by the House of Delegates of the Association on August 2, 1983, replace this provision with one allowing the repayment of advances to be made contingent on the outcome of the litigation. American Bar Association, Model Rules of Professional Conduct rule 1.8(e)(1), reprinted in 52 U S.L.W. 8 (1983).Google Scholar

15 The Commission recommends that when the action is handled on a contingent basis, in setting the fee the court should include an amount to compensate the attorney for assuming the risk of undertaking the action on such a basis (at 737, 750). Although a contingency factor is often included in fee awards in the United States, this is not a uniform practice.Google Scholar

16 See my Review Essay, 3 Windsor Yearbook of Access to Justice (forthcoming 1983).Google Scholar