• Kimberly A. Kralowec
    Kralowec Law, P.C.
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Friday, June 22, 2007


Frank Conway

Interesting comment at p. 6 of the 2005 “Managing Class Action Litigation: A Pocket Guide for Judges” which states, “the most important actions you can take to promote settlement are to rule on dispositive motions and then, if necessary, rule on class certification.” (p.6) What about the rule against one-way intervention which, in any case involving class certification under Rule 23(b)(3), requires that the class members receive notice of the suit “well before the merits of [it] are adjudicated”? See Schwarzschild v. Tse, 69 F.3d 293, 295 (9th Cir. 1995) (“[D]istrict courts generally do not grant summary judgment on the merits of a class action until the class has been properly certified and notified. The purpose of Rule 23(c)(2) is to ensure that the plaintiff class receives notice of the action well before the merits of the case are adjudicated. [Citations] As the Third Circuit has noted, the history of the development of Rule 23(c)(2) makes clear that the rule was adopted to prevent "one-way intervention" — that is, the intervention of a plaintiff in a class action after an adjudication favoring the class had taken place. Such intervention is termed "one way" because the plaintiff would not otherwise be bound by an adjudication in favor of the defendant.”)

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