How is it possible that certain South American countries uphold the Due Process Clause of the Fourteenth Amendment more effectively than the United States?
The rise in public interest class actions has been a well-known fact by now. Significant milestones in public interest litigation include the Civil Rights Movement of the 1950s and 1960s and the environmental movement of the 1970s. 1 Since then, public interest litigation has continued to evolve and expand into various areas such as consumer rights, disability rights, and more. 2 In recent years, there has been a great shift from material concerns, such as rising wages, toward post-material concerns such as environmentalism. 3
These class action groups concerned with post-material concerns are diffuse, meaning they are widespread and lack clear boundaries, which makes it difficult to delineate and certify the class. 4 In considering a class action suit aimed at addressing pollution in a widespread area, how might the judge delineate this class? Which parameters will be used to ascertain all members? Will the judge use zip codes? How can all members be reached? These questions are important to raise due to the preclusive effects the judgement of the court will have on all members of the diffuse class.
Ascertaining and certifying all members of the diffuse class have been an ever-increasing issue for the courts in this country. 5 Consequently, there have been divided ‘solutions’ to this issue. One of the ‘solutions’ is that the courts refuse to certify the class due to the ascertainability, which entails the difficulty in defining who qualifies as a member through objective criteria in an administratively feasible manner. 6 For a few courts, it is crucial that they can effectively ascertain a class in an administratively feasible manner. 7 However, this can be a challenge when dealing with diffuse groups.
Despite the court’s refusal to certify, individuals can bring individual claims to the court. Yet, this is far from ideal. One of the downsides, namely, is the duplication of efforts. 8 Each individual claim would require separate litigation, potentially leading to repetition of claims and duplication of effort, which can be costly for the court system. 9 Ironically, repetition is what the class action system is designed to combat, as finality is of paramount importance for the functioning of the judicial system. 10
Whereas some courts refuse the certification of the class when preclusion issues become evident, determining that there is an ‘unmanageable’ risk of adverse preclusion consequences for absent members of the class in future proceedings, other courts opt to certify the diffuse class, often without addressing these risks, which may jeopardize the interests of absent members in future litigation. 11 The final judgement of the court will have a preclusive effect, commonly referred to as res judicata. The Supreme Court in Cooper v. Federal Reserve Bank of Richmond reinstated the elementary rule of res judicata within the context of class action litigation:
There is of course no dispute that, under elementary principles of prior adjudication, a judgement in a properly entertained class action is binding on class members in any subsequent litigation. 12
The issue with certifying a diffuse class within the United States class action litigation system is that some individual class members will not know that the class action suit exists. This effectively means that the individual class members will be bound to a judgement they had no say in. While notice or opt-out options may be available, it is administratively challenging to provide notice to a diffuse group. 13 Thus, these due process mechanisms may not be effective. This issue will be further elaborated upon in the article.
An adversary could say: “What about Hansberry v. Lee? It established that under the Due Process Clause, class members cannot be bound to a judgement unless their interests are adequately represented. 14 Surely this protects the members of the diffuse group.” The answer would be: “Yes, but this is not an adequate framework. While there is a consensus among legal scholars and practitioners regarding the importance of ensuring adequate representation in class action litigation, there is considerable disagreement about what constitutes adequate representation and how to effectively enforce this principle.” 15
Surely the great shapers of the class action system have thought of a sophisticated solution to protect the access of justice of diffuse members, right? The answer to this question is, perhaps surprisingly, no. Luckily, certain countries in South America have taken steps to combat the issues that res judicata can cause for diffuse groups in class action litigation. 16 Those foreign countries' class action frameworks better adhere to the Due Process Clause in the Fourteenth Amendment of the Constitution of the United States than the current United States class action system.
This short article will illustrate the shortcomings of the current res judicata framework and its due process tools within the context of class action litigation. Furthermore, examples of innovative solutions employed in countries with a rich public interest class action history, such as Brazil and Argentina, will be provided. The focus will be on diffuse groups only, as the issue of unconstitutionality is most prominent for members of this group.
II. The Difference between Diffuse and Collective Groups
There are two broad categories of classes within public interest class actions: the diffuse and collective groups. 17
Diffuse groups consist of individuals with collective rights that are indivisible. 18 It is, therefore, not the same as aggregated individual rights. The class actions involving diffuse groups typically concern aspects of quality of life, such as environmental rights, social welfare rights and equality rights. 19 There is a broad societal interest involved that impacts either all members of society or a significant portion of citizens facing similar situations. The group of ‘beneficiaries’ is thus often inherently indeterminate and indeterminable. 20 No legally binding relationships exist among the group members. 21
Collective groups involve individuals whose interests can likely be identified individually. 22 Such class actions aim to advance the shared interests of a specific or identifiable number of individual persons. 23 Collective groups are often associated with a specific organization, association, or identifiable entity that represents the interests of its members. 24 These entities concern associations that serve to unite individuals with common goals or concerns.
While diffuse groups may also be associated with organizations, like Greenpeace, the key distinction lies in the fact that membership in these associations may not fully represent or reflect the entirety of the group affected by the issue at hand. 25 In other words, while individuals may belong to such organizations, there may be a broader and more diverse set of people impacted by the matter, extending beyond the immediate membership of the association. This differs from collective groups, where the individuals involved can often be more clearly identified through their association with a specific organization or entity. 26 Due to this complexity, it is harder for the courts to reach all members of the diffuse group.
Those members, who may not be aware of the case or involved in the legal proceedings, could still be bound by the judgement, resulting in limited access to justice in future litigation. This makes the preclusive effects of res judicata particularly problematic. A framework must be developed addressing diffuse groups specifically. Perhaps a moderate form of res judicata is more appropriate?
III. Hansberry v. Lee, the Adequacy Doctrine is Simply Inadequate
The Supreme Court sought to address the constitutional issue that res judicata caused in class action in Hansberry v. Lee. 27 The case concerns African American residents of Chicago, led by Hansberry, challenging a racially restrictive covenant that barred them from buying or leasing property in a specific area. 28 Despite a previous class action ruling upholding the covenant, Hansberry argued against the covenant’s validity, citing insufficient signatures. 29 The Illinois Supreme Court reinstated that Hansberry was bound to the judgement due to res judicata. 30 However, the Supreme Court recognized the adverse preclusive effects, such as losing to right to pursue individual claims or being subject to unfavorable judgements, on members of the class with conflicting interests, members who had not given consent, and inactive members. 31 Such preclusive effects violate the Due Process Clause of the Fourteenth Amendment. 32
Consequently, the Supreme Court introduced the doctrine of adequate representation. 33 The doctrine entails that a prior class action judgement cannot be binding on an individual whose interests were not adequately represented in the class action. Adequate representation through certification by the court was subsequently established in Rule 23(a)(4) of the Federal Rules of Civil Procedure. 34 One can see it as a precondition for the sake of due process prescribed by the Constitution. 35
The Supreme Court further stated that litigants whose rights have been adjudicated need to have been “afforded such notice and opportunity to be heard as requisite to . . . due process.(emphasis added).” 36 The Supreme Court also asserted that “it is impossible to say, solely because they are parties to [the agreement], that any two of them are of the same class.” 37 This implies that there must be a sophisticated procedure on class certification focusing on more elements than just one to qualify litigants as one collective. Yet, the Supreme Court does not provide such a procedure or any metrics on what an effective manner to confirm adequacy could be. 38 Additionally, the Supreme Court emphasized that only by certification “with the due regard for the protection of the rights of absent parties which due process exacts, can some be permitted to stand in judgement for all.” 39
This adequacy doctrine is an illusion of effectiveness. As it is close to impossible to require a ‘perfect harmony’ of interests between the class members and the representative, courts have departed from the main doctrine derivative of the Hansberry v. Lee case. 40 This is all because the adequacy doctrine lacks a clear, singular principle to guide it. 41 Instead, the doctrine has become disorganized, and currently, courts predominantly assess adequacy under Rule 23(a)(4) of the Federal Rules of Civil Procedure on an ad hoc basis, devoid of theoretical underpinnings. 42
This current framework is perpetuating unconstitutionality. Inadequate enforcement of the adequacy doctrine poses a particular risk: the interests of members of diffuse classes may not be fully considered or protected in the initial case. As a result, they could be unfairly bound by the judgement without being properly represented, thereby limiting their access to justice. In conclusion, members of the diffuse class cannot rely on this due protection mechanism.
IV. Effectively Notifying Diffuse Members: No Guarantees
In class action discussions, the debate over opt-in versus opt-out notices is often seen as pivotal for member involvement. 43 Yet, the core issue lies beyond this choice. Regardless of the system used, the challenge remains providing effective notice to all affected members. Notifying diffuse class members about the ongoing litigation and their inclusion in the class is crucial for involving the individuals, especially considering they will be bound to the judgement due to the res judicata principle. 44
Courts have encountered challenges with providing “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” 45 This is particularly challenging in diffuse groups, as courts struggle to accurately ascertain all members.
Courts are required by both Rule 23 of the Federal Rules of Civil Procedure and considerations of procedural due process to ensure individual notice is provided to those class members identifiable with reasonable effort. 46 These due process considerations have been expressed by the Supreme Court in Mullane v. Central Hannover Bank and Trust Company:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. 47
When individual notice proves unattainable, courts must then utilize the best available substitute method of notice. 48 There are multiple avenues to notify class members, at times in a supplementary manner, including individual mail notice, newspaper announcements and through email. 49 However, despite the given importance to due process, none of these methods can guarantee reaching every member.
i. Notice per Standard Mail
Mail notice presents challenges in informing class members of their rights effectively. In usual practice, either a litigating party or an expert in class action notices dispatches individual notices through first-class mail to the most up-to-date addresses of class members. 50 They compare the list of addresses with the United States Postal Service’s National Change of Address Database to locate the most up-to-date addresses. 51 If a notice is returned as undeliverable, the litigating party or expert tries to find the new address of the class member and sends the notice there. 52 Yet, the mailing lists often contain many inaccuracies due to individuals moving and changing addresses. 53 According to Klonoff, “in some class action lawsuits, current correct addresses may be found for only 50% of identifiable class members.” 54
Besides, even when the accurate addresses are acquired, studies show that individuals do not consistently read all the mail they receive. 55 As a result, although mail notices may reach class members, there is no guarantee they will be read. 56
ii. Notice per Publication
Apart from mail notices, courts can authorize parties to utilize newspapers as a medium for notifying class members. This practice typically occurs in two scenarios. Firstly, courts authorize newspaper notices to supplement individual notices when the exact names and addresses of certain class members are unknown. 57 Secondly, courts employ newspaper notices as the primary means of notice when the entire identities of individual class members cannot be reasonably ascertained. 58 Such notices often feature in national periodicals. 59
Notice through publication also poses issues regarding the principle of due process. Firstly, for notice through publication, courts rely entirely “on the legal fiction that publication in newspapers which class members are somewhat more likely to read is sufficient to put class members on notice of the pending action and their rights.” 60 Courts have acknowledged that this fiction is based on wishful thinking. 61
Additionally, another significant issue is the declining readership of newspapers. In 2003, The New York Times, The Wall Street Journal and USA Today had an average daily readership exceeding eleven million individuals. 62 However, during the period of 2003 to 2013, this figure declined to approximately three million daily readers. 63 This decline is particularly worrisome considering that only twenty-three percent of individuals aged eighteen to thirty-four reported reading a daily newspaper, pointing to a decreasing readership among younger demographics. 64 As older generations diminish, "the readership base of newspapers" is expected to further decrease. 65
Lastly, the readers of newspapers are not usually representative of the general population. 66 Print newspaper readers are typically older, high-income, college-educated individuals who are not minorities. 67
iii. Notice per Email
Some courts use of email notices has increased due to technological developments. 68 However, there are challenges paired with email notices. Firstly, there is a risk that individuals may share email notices with others outside the class, potentially distorting the approved notice. 69 Secondly, spam filters can block email notices, preventing them from reaching their intended recipients. 70 Another issue is the accessibility of email notices. Not everyone has email or internet access, rendering electronic notice impossible for some individuals. 71 These factors underscore the complexities involved in utilizing email as a means of notice in class action proceedings.
In summary, while various methods such as mail, publication, and email notices are utilized to reach diffuse members in class action litigation, there are no guarantees of their effectiveness. Factors such as inaccurate mailing lists, declining readership of newspapers, and challenges with email accessibility display uncertainties inherent in the notice process. The shortcomings of all notice methods indicate that a change in notice type cannot guarantee every member of the diffuse class being reached. This failure may result in members of the class remaining unaware of the existence of the case and subsequently being bound by it. Therefore, this due protection mechanism cannot be relied on either by members of the diffuse group.
V. Brazil and Argentina: A Moderate Form of Res Judicata.
To examine the viability of a framework that harbors the efficacy of public interest class action litigation, while honoring the Due Process Clause of the Fourteenth Amendment, Brazil and Argentina stand as illuminating examples.
These countries both have an opt-out system similar to the United States. 72 The opt-in approach, while theoretically appealing, presents significant drawbacks by reducing participation rates, according to research focused on England and continental Europe. 73 Besides, both systems encounter a fundamental challenge: reaching every member of the diffuse group effectively. 74 Therefore, the crux of the matter lies more in the application of the res judicata principle than in the choice between opt-out and opt-in mechanisms.
i. Brazil In 1985, the Brazilian people's desire for democratization and active participation in social issues resulted in the Law of Public Civil Action (LACP). 75 This law is particularly focused on class action lawsuits for the protection of the environment, cultural and historical heritage, and state assets. 76 All these interests can be categorized as collective and even as diffuse.
The intention of the drafters was to integrate mechanisms into the Brazilian legal framework to protect collective and diffuse rights from infringements by private entities. 77 The group of jurists who drafted this were notably influenced by Italian legal principles, especially by the work of Professor Mauro Cappelletti. 78
Article 129(III), Chapter IV of the Constitution of Brazil has incorporated the LACP, which authorizes “public civil actions to protect public and social patrimony, the environment, and other diffuse and collective interest.” 79 Article 129(III) of the Constitution of Brazil is aimed at the Public Ministry, an independent state body. 80 The ‘relevant law’ extends standing to both governmental entities and private associations. 81 The absence of standing for private individuals to represent the class does not necessarily contravene the Due Process Clause. Instead, it underscores the adequacy notion, as private organizations (or the Ministry) frequently possess the resources, networks, expertise, and vested interests requisite for representing the public interest on behalf of these individuals. 82 This approach warrants consideration by the United States, as it more effectively addresses the adequacy notion, ensuring an adequate representation of diffuse interests in proceedings.
The LACP forms the basis for safeguarding collective and diffuse rights. This framework is further supplemented by Brazil's Consumer Defense Code (CDC), enacted in 1990. 83 Despite what its name suggests, the CDC covers all types of class actions, not solely those related to consumer matters. 84 Under the CPC, collective action is taken in cases where either (1) “trans-individual rights of an indivisible nature in which the parties involved are indeterminate persons connected by circumstances of fate,” or (2) the involved party is a group, category or class of people connected amongst each other or with the defending party through a judicial relationship.” 85 Article 103 of this Consumer Code introduces a preclusion rule that is applicable to the LACP. It asserts that a judgement shall have an erga omnes effect. 86
In Brazil, the res judicata secundum eventum litis principle establishes a one-way preclusion in which the finality of a court ruling is dependent on the outcome of the case. 87 Article 103 in paragraph 1 adds that “the substantive rejection of a claim . . . does not “impair the individual interests and rights of the members of the collectivity.” 88 Consequently, an individual of a diffuse group can still invoke their rights through an individual claim. 89 In summary, this principle entails that the finality of a judgement applies only if there is a substantive validation of the claim. 90 This means that decisions with a favorable outcome for the diffuse group are conclusive, and individuals cannot invoke any additional claims in a separate individual lawsuit. 91 The res judicata secundum eventum litis principle preserves the finality crucial to the utility of class action litigation, while also effectively upholding the due process considerations of the U.S. framework.
ii. Argentina
Argentina presents a parallel to the United States class action system, as it features a opt-out mechanism. 92 This similarity enhances the effectiveness of the comparison between the two systems. Like Brazil, Argentina has adopted a framework addressing public interest class action litigation involving diffuse groups through its constitution, supplementary laws and jurisprudence. 93
In 1957, the Argentina Supreme Court implemented a legal instrument known as the writ of protection, designed for the judicial enforcement of individual rights. 94 This distinctive legal procedure originated in Mexico during the nineteenth century, allowing individuals and groups to assert their legal rights. 95 Over time, it has been adopted in other Iberian American legal systems, including Argentina. 96 This instrument was later incorporated into Article 43 of Argentina's Constitution following amendments in 1994, enabling individuals to initiate collective actions. 97
Article 43 of the Constitution provides protections “against any form of discrimination and about rights protecting the environment, competition, users and consumers, as well as about rights of general public interest.” 98 However, the Collective Writ of Protection, unlike the Brazilian framework, extends the right to file complaints beyond governmental entities and private associations to any individual affected. 99 This makes the Argentina system less divergent of the U.S. framework. 100 The collective action is further developed in the following acts: the Consumer Protection Act (CPA) and the Environmental General Act (EGA). 101 Yet, the practice of class action procedures, even those falling outside the scope of the CPA and EPA, is largely shaped by case law. 102
The Supreme Court of Argentina has set forth several procedural safeguards through cases such as Halabi v. the National Executive Branch and PADEC v. Swiss Medical. 103 These safeguards are deemed essential by the court to uphold the constitutional due process rights of members of the class. 104 The safeguards include a clear definition of the group, ensuring the adequacy of representation (which must be overseen by the court), providing notice to absent members, granting class members the right to opt out and intervene, and ensuring public awareness of the proceedings to prevent duplicate and concurrent litigations. 105
Argentina, like Brazil, takes the additional step of embracing the res judicata secundum eventum litis principle. 106 The court in Halabi makes a distinction between “collective rights that relate to individual homogenous interests” and collective rights “that pertain to collective goods.” 107
Therefore, the legal principle of res judicata secundum eventum litis generally binds all members in similar circumstances when the class claim is granted, except for those who opt out of the class. 108 It is worth noting that this res judicata secundum eventum litis applies specifically to adjudication and not to settlement agreements, as the latter affects all individuals within the diffuse group regardless. 109
Brazil’s and Argentina's focus on establishing a framework to address class actions involving diffuse groups reflects a proactive approach to managing complex litigation. By enacting a tailored framework addressing diffuse groups, the United States can provide clearer guidelines and procedures specifically designed to navigate the complexities of public interest class action litigation.
Conclusion
By adopting a moderated res judicata framework, the United States can address some of the limitations of traditional res judicata principles and promote fairness in the public interest litigation process. Such framework would honor the Due Process Clause in the Fourteenth Amendment more effectively, as the adequacy doctrine that is currently in place is simply insufficient. 110 The interpretation and application of the notion vary among the courts, which can result in inconsistent outcomes and may not always ensure adequate representation. 111 Additionally, none of the available notice methods guarantee that a notice will reach every member of the diffuse class, leaving many unable to participate and unfairly bound by the judgement.
Given the growing number of diffuse public interest cases, it is imperative that change is brought about. 112 Pursuant to “the deep-rooted historic tradition….everyone should have their own day in court,” a genuine opportunity ought to be available. 113 A genuine opportunity ought to be available. The res judicata principle, in conjunction with the inadequate due process mechanisms, shuts that door too quickly for members of the diffuse class. While the res judicata secundum eventum litis principle closes it a bit slower, balancing finality and due process.
1 MICHAEL T. HEANEY, Public Interest Advocacy in INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL SCIENCES, 614, 614 (2nd ed., 2008); see also Mark C. Weber, Preclusion and Procedural Due Process in Rule 23(b)(2) Class Actions, 21 U. MICH. J.L. REFORM 347, 350—51 (1988) (“As the antiwar and environmental movements gathered momentum in the late sixties and early seventies, the lawyers at work in these campaigns also saw class actions as a useful means to vindicate their clients' rights.”); see also KATHARINA C. HEYER, RIGHTS ENABLED: THE DISABILITY REVOLUTION, FROM THE US, TO GERMANY AND JAPAN, TO THE UNITED NATIONS 30 (2015).
2 Id.
3 Id.
4 Colin Crawford, Access to Justice for Collective and Diffuse Rights: Theoretical Challenges and Opportunities for Social Contract Theory, 27 IND. J. GLOB. LEGAL STUD. 59, 78 (2020).
5 David Marcus, The Public Interest Class Action, 104 GEO. L.J. 777, 777 (2016) (“In recent years, however, the procedural law regulating the public interest class action has changed dramatically, with recurring doctrinal problems splitting the federal courts. Should a nascent trend against class certification continue, class action doctrine will soon present a formidable obstacle—possibly a barrier—to the successful prosecution of a sort of litigation that has produced innumerable changes to prisons, foster care systems, and other government agencies and services over the last fifty years.”).
6 Geoffrey C. Shaw, Class Ascertainability, 124 YALE L.J. 2356, 2382 (2014); see also DeBremaecker v. Short 433 F.2d 733, 734 (5th Cir. 1970) (Court of Appeals for the Fifth Circuit blocked certification of a class defined as "residents of this State active in the 'peace movement.'" In refusing to certify the class, the court pointed to the "uncertainty of the meaning of 'peace movement.;”); see also Marcus v. BMW of N. Am, LLC, 687 F. 3d 583, 593 (3d Cir. 2012) (“If class members are impossible to identify without extensive and individualized fact-finding or 'mini-trials,' then a class action is inappropriate.”); see also Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013) (“Ascertainability entails two important elements. First, the class must be defined with reference to objective criteria. Second, there must be a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.”).
7 Carrera v. Bayer Corp., 727 F. 3d 300, 305–306 (3d Cir. 2013); see also Robert H. Klonoff, The Future of Aggregate Litigation in the United States, in THE CAMBRIDGE HANDBOOK OF CLASS ACTIONS 71, 72 (Brian T. Fitzpatrick & Randall S. Thomas eds., 2021).
8 Debra Lyn Bassett, Just Go Away: Representation, Due Process, and Preclusion in Class Actions, 2009 BYU L. REV. 1079, 1117 (2009); see also Rhonda Wasserman, Dueling Class Actions, 80 B.U. L. REV. 461, 470 (2000).
9 Id.; Think of gathering evidence, filing motions, and conducting legal proceedings.
10 Id.; see also Rex R. Perschbacher, Rethinking Colatteral Estoppel: Limiting the Preclusive Effect of Administrative Determinations of Judicial Proceedings, 35 U. FLA. L. REV. 422, 425 (1983).
11 Tobias Barrington Wolff, Preclusion in Class Action Litigation, 105 COLUM. L. REV. 717, 725 (2005) (In the following cases, the court rejected certification motions: Vallario v. Vandehey, 554 F.3d 1259 (10th Cir. 2009); Shook v. Bd. of Cty. Comm’rs of El Paso, 543 F.3d 597 (10th Cir. 2008); Elizabeth M. v. Montenez, 458 F.3d 779 (8th Cir. 2006); but see Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 143 (N.D. Cal. 2004) (certifying a class of 1.5 million former and current female employees of the store)).
12 Cooper v. Fed. Rsrv. Bank of Richmond, 467 U.S. 867, 874 (1984); see also Tobias Barrington Wolff, Preclusion in Class Action Litigation, 105 COLUM. L. REV. 717, 724 (2005) (“Cooper is the only occasion on which the Court has purported to speak in any detail about the operation of preclusion doctrine in class litigation, and the Court articulated a deceptively simple set of postulates in that case to arrive at the outcome that it produced. The meaning and import of the resulting decision are often misunderstood. Unsurprisingly, Cooper has proven inadequate as a framework for the analysis of subsequent preclusion disputes.”).
13 See Alexander W. Aiken, Class Action Notice in the Digital Age, 165 U. PA. L. REV. 967 (2017) (It is reasonable to surmise this, as many notification methods cannot guarantee comprehensive coverage or effective communication due to the dispersed nature of the group); see Pellegrini Grinover, A., The Defense of Transindividual Interests: Brazil and Ibero-America, I(1) BRICS L.J. 45, 53 (2014) (“Just have in mind the famous Eisen case, in which the obligatory notification put an end to the class action. Nowadays the notification is more parsimonious but in this way one cannot tell that the knowledge has been brought to all the members of the class”).
14 Hansberry v. Lee, 311 U.S. 32, 44 (1940).
15 Robert H. Klonoff, The Judiciary’s Flawed Application of Rule 23’s "Adequacy of Representation" Requirement, 2004 MICH. ST. L. REV. 671, 678 (2004) (discussing incoherent application of Rule 23(a)(4) by federal courts); see also Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1765 (“What constitutes adequate representation . . . depends on the circumstances of each case.”) (3rd ed. 2008); see also David Marcus, Making Adequacy More Adequate, 88 TEX. L. REV. 137, 138 (2009) (“…Hansberry is a confused decision…”).
16 See Grinover, supra note 13 (explaining how Brazil has opted for another system than res judicata and refers to other South American countries also who have adopted the same method.)
17 Id., at 47.
18 Id.
19 Richard B. Cappalli & Claudio Consolo, Class Actions for Continental Europe - A Preliminary Inquiry, 6 TEMP. INT'L & COMP. L.J. 217, 264, n. 270 (1992) (suggesting that diffuse interests often arise in situations where there is not a clear, pre-established normative framework to address emerging issues. Examples of such issues include environmental concerns, consumer protection, mass communication, and transportation).
20 Robert A. Weninger, The VW Diesel Emissions Scandal and the Spanish Class Action, 23 COLUM. J. EUR. L. 91, 111 (2016); see also Colin Crawford, Access to Justice for Collective and Diffuse Rights: Theoretical Challenges and Opportunities for Social Contract Theory, 27 IND. J. GLOBAL LEGAL STUD. 59, 78 (2020); see also Enrique González Mac Dowell, Judicial Action for the Protection of Collective Rights and Its Legal Impact- A Case Study, 30 J.L. MED. & ETHICS 644, 644 (2002) (“…affects an identifiable group of people (collective interests) or a nondeterminable group of people (diffuse interests)…”).
21 Crawford, supra note 4.
22 Id.
23 Grinover, supra note 13.
24 Id.
25 Id.; see also Dutch citizens launch legal action against The Netherlands over climate impacts on Caribbean island Bonaire, GREENPEACE (May 11, 2023), https://www.greenpeace.org/nl/kli maatverandering/ 58112/bonaire- legal-action- launched-ipr/ [https://perma.cc/ 7P7W-34LD].
26 Cappalli & Consolo, supra note 19 (“Key is the ‘corporate’ character of the interest itself, not the mere fact that individuals have organized themselves around the interest. An important example of this type of ‘corporate’ protection is provided by Article 28 of the Workers' Code, which vests in the worker's union the right of suit against anti-organizational efforts of employers. Although this example pertains only to employment situations, the ‘corporate’ phenomenon is not unknown to the ordinary legal order. For example, it is quite feasible for an organization of producers to be a civil party in a lawsuit to stop marketplace fraud. While diffuse interests, then, are and remain general interests - even when advanced by an organization - collective interests are categorical interests, necessarily vested in the group encharged with their defense.”); see also Weninger, supra note 20, at 111; see also Crawford, supra note 4, at 78.
27 Hansberry v. Lee, 311 U.S. at 32.
28 Allen R. Kamp, The History Behind Hansberry v. Lee, 20 U.C. DAVIS L. REV. 481, 482—83 (1987).
29 The previous case being Burke v. Kleiman, 277 Ill. App. 519, 534 (1934); see also Kamp, supra note 28, at 485 (“The covenant was useful only if most of the owners had signed it. Thus, a covenant's effectiveness required that a certain percentage of owners participate”).
30 Lee v. Hansberry, 24 N.E.2d 37, 40 (Ill. 1939).
31 Hansberry v. Lee, 311 U.S. at 44.
32 Id. at 44–45.
33 Bassett, supra note 8, at 1089.
34 Developments in the Law: Class Actions, 89 HARV. L. REV. 1318, 1471 (1976).
35 Id.
36 Hansberry v. Lee, 311 U.S. at 40.
37 Id. at 44.
38 Marcus, supra note 15, at 138.
39 Hansberry v. Lee, 311 U.S. at 44.
40 Marcus, supra note 15, at 138.
41 Id. (“[N]othing anchors adequacy doctrine to a single straightforward principle…”).
42 Id.
43 See e.g. RACHAEL MULHERON, REFORM OF COLLECTIVE REDRESS IN ENGLAND AND WALES (2008).
44 Robert H. Klonoff et al., Making Class Actions Work: The Untapped Potential of the Internet, 69 U. PITT. L. REV. 727, 730 (2008); see also MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.31 (2004). (“Notice is a critical part of class action practice. It provides the structural assurance of fairness that permits representative parties to bind absent class members."); see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 627 (1997); see also Andrew S. Tulumello & Mark Whitburn, Res Judicata and Collateral Estoppel Issues in Class Litigation, in A PRACTITIONER’S GUIDE TO CLASS ACTIONS 605, 605 (2010).
45 Fed R. Civ P. 23(c)(2); Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).
46 Aiken, supra note 13, at 976.
47 Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 314 (1950).
48 Id. at 315. (“…not substantially less likely to bring home notice than other of the feasible and customary substitutes.”).
49 Id. at 317; see also Aiken, supra note 13, at 970 n. 11—12 (referring to two cases in which modern notice methods are used: Noll v. eBay, Inc., 309 F.R.D. 593, 601 (N.D. Cal. 2015) (approving eBay’s plan to disseminate notice to class members using email addresses possessed by the company, and by direct mail notice if the emails were undeliverable) and In re Briscoe, 448 F.3d 201, 207 (3d Cir. 2006) (affirming the trial court’s decision to allow a notice plan including “banner advertisements on the Internet directing class members to the official settlement website,” where the proposed class included “all persons in the United States, including their representatives and dependents, who had ingested [a particular diet drug]”)).
50 Aiken, supra note 13, at 977.
51 Id.
52 Id.
53 Id. at 978.
54 Robert H. Klonoff et al., supra note 44, at 731; see also Todd B. Hilsee et al., Hurricanes, Mobility and Due Process: The “Desire-to-Inform” Requirement for Effective Class Action Notice is Highlighted by Katrina, 80 TUL. L. REV. 1771, 1791 (2006).
55 Hilsee et al., supra note 54, at 1794.
56 Aiken, supra note 13, at 978.
57 Id. at 979–80 n. 71 (“Bauer-Ramazani v. Teachers Ins. & Annuity Ass’n of Am.-Coll. Ret. & Equities Fund, 290 F.R.D. 452, 464 (D. Vt. 2013) (approving a notice plan using publication notice in The New York Times and The Wall Street Journal to supplement mail and email notice where a number of potential class members were unknown)”).
58 Aiken, supra note 13, at 980, n. 72 (“In re Motor Fuel Temperature Sales Practices Litig., 279 F.R.D. 598, 617-18 (D. Kan. 2012) (approving publication notice in a number of newspapers where individual members of the class—comprised of current state residents who had purchased motor fuel from a particular gas station—could not be identified)”).
59 Id.
60 Brian Walters, “Best Notice Practicable” in the Twenty-First Century, UCLA J.L. & TECH. 1, 8 (2003).
61 Aiken, supra note 13, at 982; see e.g. Hughes v. Kore of Ind. Enter.,731 F.3d 672, 677 (7th Cir. 2013) (“We are mindful that notice by publication involves a risk that a class member will fail to receive the notice and as a result lose his right to opt out of the class action—a right that can be valuable if his individual claim is sizable.”).
62 Aiken, supra note 13, at 981.
63 Id.
64 Id.
65 Id.
66 Id.
67 Rick Edmonds et al., The State of the News Media 2013, PEW RSCH. CTR. (May 7, 2013), http://www.stateofthemedia.org/2013/newspapers-stabilizing-but-still-threatened/newspapers-by-the-numbers [https://perma.cc/XK32-XCWG]; see also Aiken, supra note 13, at 981.
68 Aiken, supra note 13, at 967.
69 Id. at 989.
70 Id.
71 Id.
72 Hugo Acciarri & María José Azar-Baud, Alternative Models of Res Judicata in Class Actions: A Comparative Law & Economics Approach, 2, 11–13 (June 22, 2016).
73 Mulheron, supra note 43, at 154.
74 Sending a notice, whether it concerns an opt-in or opt-out message, is essentially the same act, namely sending a piece of information to a class member. As discussed in the previous section, 'IV. Effectively Notifying Diffuse Members: No Guarantees,' ensuring that every member of a diffuse group is reached is challenging due to the obstacles and limitations inherent to the various notification methods.
75 Law No. 7347, Public Civil Action Law, (Braz.); see also Carlos Portugal Gouvêa & Helena Campos Refosco, Class Action in Brazil: Overview, Current Trends and Case Studies, in THE CAMBRIDGE HANDBOOK OF CLASS ACTIONS 129, 130, 132 (Brian T. Fitzpatrick & Randall S. Thomas eds., 2021).
76 Law No. 7347, Public Civil Action Law, (Braz.); see also Gouvêa & Refosco, supra note 75, at 130, 132.
77 Law No. 7347, Public Civil Action Law, (Braz.); see also Gouvêa & Refosco, supra note 75, at 131.
78 Oscar Vilhena Vieira, Public Interest Law: A Brazilian Perspective, 13(1) UCLA J. OF INT'L L. AND FOREIGN AFF., 219, 238 n. 72 (2008). Professor Cappelletti has examined the concept of collective actions, considering broader proposals for protecting collective interests and analyzing it through a North American legal lens.
79 Brazilian Constitution of 1988 art. 129 § III, ch. IV.
80 Ángel R. Oquendo, Down the Final Stretch: State Societal Settlements' Rest Judicata Repercussions, 18 WASH. U. GLOBAL STUD. L. REV. 1, 2019, at 27.
81 Law No. 7347, Public Civil Action Law, (Braz.); see also Gouvêa & Refosco, supra note 75, at 130, 132.
82 Roger Van den Bergh & Louis Visscher, The Preventive Function of Collective Actions for Damages in Consumer Law, 1(2) ERASMUS L.R. 5, 2008, at 5 (“If consumer associations have standing, they might be able to acquire better information regarding infringements than individual consumers are able to do.”); see also Article 3:305a BW of the Dutch Civil Code (The private association will be assessed on whether they are sufficiently representative of their members, based on criteria such as their website, the statutes of the association, the number of de facto members who are subscribed, etc.).
83 CODE CIVIL {C.D.C.} {Law No. 8.078} art. 81(1) (Fr).
84 Portugal Gouvêa & Campos Refosco, supra note 76, at 131.
85 CODE CIVIL {C.D.C.} {Law No. 8.078} art. 81(1) (Fr).
86 CODE CIVIL {C.D.C.} {Law No. 8.078} art. 103(1) (Fr) (“In the collective lawsuits mentioned in this code, the ruling sentence will be: erga omnes…”).
87 Acciarri & Azar-Baud, supra note 72, at 11.
88 “…does not impair the individual interests and rights of the members of the collectivity…” translation by Oquendo, supra note 80, at 27.
89 Acciarri & Azar-Baud, supra note 72, at 11.
90 Id.
91 Oquendo, supra note 80, at 27.
92 Law No. 24240, 1993 [COD. CIV.] A.D.L.A. ¶ 54 (Arg.); see also Acciarri & Azar-Baud, supra note 89, at 11–13; see also Héctor A. Mairal, Argentina, 622 THE ANNALS OF THE AM. ACAD. 54, 58 (2009).
93 Oquendo, supra note 80, at 30–31; see also Acciarri & Azar-Baud, supra note 72, at 12; see also Mairal, supra note 93, at 54 (“Argentina does not have a general class action statute, but a 1994 constitutional reform allowed actions that defend collective interests.”).
94 Angel Siri v. Police Commissioner, District of Mercedes, (Dec. 27, 1957) Ct. Supr. (Arg.) and Samuel Kot, L.L.C. v. Aron Fistein, (Nov. 5, 1958) Ct. Supr. (Arg); see also Ángel R. Oquendo, The Solitude of Latin America: The Struggle for Rights South of the Border, 43 TEX. INT'L L. J. 185, 213–14 (2008) (“In Argentina, for instance, the Supreme Court created the action in the 1950s in two cases that Argentine lawyers still cite and refer to using the English term "leading cases”).
95 Oquendo, supra note 94, at 208.
96 Id.
97 Id. at 214; see also Mairal, supra note 93, at 59; see e.g., Chamber E, Union d bge Usarios y Consumidores v. Citibank N.A., (May 12, 2006), Ct. App. for Com. Matters (Arg.) (“An association of users and consumers was recognized as having standing to sue to stop a bank from using its clients' data for advertising purposes and from assigning such data to third parties unless the client had sent a specific request to be excluded”).
98 ART. 43, CONST. NAC. (ARG.).
99 Oquendo, supra note 80, at 27, 31.
100 Id. at 33.
101 Acciarri & Azar-Baud, supra note 72, at 12.
102 Id. at 13.
103 Francisco Verbic, Class Actions in Argentina: the need for a wider scope to embrace judicial efficiency, 6 Civil Procedure Review 95, 98 (2015); see also Halabi v. the National Executive Branch, (Feb. 24 2009) Ct. Supr. (Arg.) and PADEC c/ Swiss Medical s/ Nulidad de cláusulas contractuales), (Aug. 21, 2013) Ct. Supr. (Arg).
104 Id.
105 Id.
106 Acciarri & Azar-Baud, supra note 72, at 21.
107 Halabi v. the National Executive Branch, (Feb. 24 2009) Ct. Supr. (Arg.) (“derechos . . . de incidencia colectiva que tienen por objeto bienes colectivos, y de incidencia colectiva referentes a intereses individuales homogéneos”); Res judicata, as established in the Halabi case and subsequent jurisprudence in Argentina, does not exclusively apply to class actions concerning consumer rights.
108 Acciarri & Azar-Baud, supra note 72, at 3.
109 Id. at 21.
110 Klonoff, supra note 15; see also Marcus, supra note 15, at 138.
111 Marcus, supra note 15.
112 Heaney, supra note 1; see also The Asser Institute, Asser Strategic Research Agenda 2022-2026: Rethinking public interests in international and European Law, 18 Asser Inst. Ctr. for Int’l & EU Law (2022); see also Klonoff supra note 7, at 89 (referring to issue classes and how they been more common over the years. These issues classes concern environmental and employment cases, which are often diffuse in nature).
113 Richards v. Jefferson County, 517 U.S. 793, 798 (1996).