Case 2:12-md-02311-SFC-RSW ECF No. 2138-5, PageID.39393 Filed 05/15/21 Page 1 of 5
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`Case 2:12-md-02311-SFC-RSW ECF No. 2138-5, PageID.39394 Filed 05/15/21 Page 2 of 5
`§ 9:37.Right to enter appearance through own counsel, 3 Newberg on Class Actions §...
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`3 Newberg on Class Actions § 9:37 (5th ed.)
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`Newberg on Class Actions | December 2020 Update
`William B. Rubenstein a0
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`Chapter 9. Absent Class Members
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`V. Intervention by Absent Class Members *
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`§ 9:37. Right to enter appearance through own
`counsel
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`Rule 23(b)(3) class
`Rule 23(c)(2)(B)(iv) requires the court to include within the notice directed to class members in a
`action that a class member “may enter an appearance through an attorney if the member so desires.” 1 Following the adoption
`of this language in 1966, some commentators suggested it conferred upon absent class members in a class suit an automatic
`right to intervene. 2 However, Professor Kaplan, the reporter for the 1966 Advisory Committee dissenting, explained that the
`Rule envisioned something short of intervention:
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`I read this “appearance” as entitling counsel to receive the papers in the action to enable him to follow the case
`with a view to deciding, e.g., whether he should move to intervene. If “appearance” is read as enabling the class
`member to be admitted automatically into the action as a party, it would stand in odd contrast to intervention in
`the action under rule 24, which is not automatic and requires a showing. Interpretation is, however, made less
`important because the appearance could in all events be limited under
`rule 23[(d)], just as intervention may
`be limited. 3
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`Professor Kaplan's view has prevailed. 4
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`Thus, entrance of an appearance allows a class member to have representation by her own attorney in the class action 5 without
`going the full length of becoming a party through intervention. 6 The district court retains substantial ability to fashion the exact
`scope of rights related to entering an appearance. 7 Several courts have concluded that a class member must decide whether or
`not she is going to opt out of the case before entering an appearance through counsel as the appearance implies participation,
`not exclusion. 8
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`Although the provision of Rule 23 permitting the entrance of an appearance through counsel explicitly applies only to notice
`in Rule 23(b)(3) class actions, at least one court has been willing to permit entrances of appearances in a mandatory class
`action. 9 In that case, the district court cited its authority under Rule 23(d)(1)(B)(iii) to issue orders that give notice to class
`members of their rights to be involved in the action 10 as the basis for its authority to allow individual notices of appearance
`in a Rule 23(b)(2) class action. 11 Since (b)(1) and (b)(2) cases are typically mandatory, meaning class members cannot opt
`out, enabling them to monitor the case in this manner makes sense.
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`The mere entrance of an appearance on behalf of an absent class member does not entitle that attorney to fees from the rest of
`the class, and it will not relieve a class member who benefits from the class suit from any fee or cost obligation imposed on
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` © 2021 Thomson Reuters. No claim to original U.S. Government Works.
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`§ 9:37.Right to enter appearance through own counsel, 3 Newberg on Class Actions §...
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`all class members. 12 However, the class member is entitled to the default assumption than she is not required to pay class fees
`and costs unless she benefits from the recovery fund. 13
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`Westlaw. © 2020 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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`Footnotes
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`Bruce Bromley Professor of Law
`Harvard Law School
`Professor Rubenstein thanks Chris Keys, Harvard Law School Class of 2011; Camilla Hsu, Harvard
`Law School Class of 2011; and Supawon Lervisit, Harvard Law School Class of 2012, for their help
`in preparing this unit and William Dreher, Harvard Law School Class of 2013, and Christopher Liedl,
`Harvard Law School Class of 2014, for their help in editing it.
`Fed. R. Civ. P. 23(c)(2)(B)(iv) (“For any class certified under Rule 23(b)(3), the court must direct
`to class members the best notice that is practicable under the circumstances, including individual notice
`to all members who can be identified through reasonable effort. The notice must clearly and concisely
`state in plain, easily understood language … that a class member may enter an appearance through an
`attorney if the member so desires …”).
`In Eisen v. Carlisle & Jacquelin, the Supreme Court observed that class members are entitled to the best
`notice practicable in part to further their ability to appear through counsel of their choice.
`Eisen v.
`Carlisle and Jacquelin, 417 U.S. 156, 173, 94 S. Ct. 2140, 2150, 40 L. Ed. 2d 732, 9 Fair Empl. Prac. Cas.
`(BNA) 1302, 7 Empl. Prac. Dec. (CCH) P 9374A, Fed. Sec. L. Rep. (CCH) P 94570, 1974-1 Trade Cas.
`(CCH) ¶ 75082, 18 Fed. R. Serv. 2d 877, 4 Envtl. L. Rep. 20513 (1974) (“ Rule 23(c)(2) provides that,
`in any class action maintained under subdivision (b)(3), each class member shall be advised that he has the
`right to exclude himself from the action on request or to enter an appearance through counsel, and further
`that the judgment, whether favorable or not, will bind all class members not requesting exclusion. To this
`end, the court is required to direct to class members ‘the best notice practicable under the circumstances
`including individual notice to all members who can be identified through reasonable effort.’” (emphasis
`added) (quoting
`Federal Rule of Civil Procedure 23(c)(2))).
`See Sherman L. Cohn, The New Federal Rules of Civil Procedure, 54 Geo. L.J. 1204, 1224 (1966) (“The
`significance of permitting an appearance by a Rule 23(b)(3) class member is to bestow on him as a
`practical matter the automatic right to be a party subject to any limitations the court may in its discretion
`impose. He need not even so much as file a motion to intervene as of right under rule 24(a).”).
`Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of
`Civil Procedure (I), 81 Harv. L. Rev. 356, 412 (1967).
`Aks v. Southgate Trust Co., 1992 WL 401708, *14 (D. Kan. 1992) (“One who makes an ‘appearance’
`pursuant to Rule 23(c)(2)(C) has only the right to receive copies of papers filed in the action and to
`be fully informed of the progress of the litigation.”).
`Ramsey v. Arata, 406 F. Supp. 435, 442, Fed. Sec. L. Rep. (CCH) P 95506 (N.D. Tex. 1975) (“This Court
`favors, however, the view of Professor Kaplan, the reporter for the Advisory Committee which drafted
`the 1966 amendments to the Federal Rules of Civil Procedure, that this rule is only intended to afford
`absent class members the opportunity to receive pleadings and other papers in the case so that they may
`decide whether to intervene.”).
`See also Joan Steinman, The Party Status of Absent Plaintiff Class Members: Vulnerability to
`Counterclaims, 69 Geo. L.J. 1171, 1203–05 (1981) (noting that neither the Rule nor the Advisory
`Committee's note “elaborates upon the specific rights and obligations of class members who elect to”
`have their own counsel enter an appearance but concluding that the district court's authority to enter
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`orders limiting the roles of intervenors and other attorneys likely results in the distinction having “little
`practical effect”).
`See Margaret H. Lemos, Aggregate Litigation Goes Public: Representative Suits by State Attorneys
`General, 126 Harv. L. Rev. 486, 507 (2012) (“The purpose of the notice requirement is to inform the
`class members that the case exists and to give them an opportunity to be heard in the action or to opt out
`of it.” (citing
`Fed. R. Civ. P. 23(c)(2)(B)(iv))).
`Ramsey v. Arata, 406 F. Supp. 435, 442, Fed. Sec. L. Rep. (CCH) P 95506 (N.D. Tex. 1975) (rejecting
`view of commentators who had “suggested that this provision [allowing entrance of an appearance
`through counsel] establishes the equivalent of an absolute right to intervene without regard to the normal
`intervention requirements of Rule 24”).
`In re AT&T Fiber Optic Cable Installation Litigation, 2002 WL 31045370, *1 (S.D. Ind. 2002) (permitting
`entrance of appearance but limiting notice required in many pending suits only to those that would affect
`the legal interests of the represented entity).
`In re Potash Antitrust Litigation, 162 F.R.D. 559, 562 (D. Minn. 1995) (“[T]he rights attendant to
`an appearance, or to intervenor standing, are subject to the supervisory powers of this Court to enter
`appropriate Orders for the protection of the class, and for the fair conduct of the action.”).
`Aks v. Southgate Trust Co., 1992 WL 401708, *14 (D. Kan. 1992) (“[T]he court will enter Mr.
`Whisler's appearance on behalf of Eric Ulmer, Bernard Gould, Don Davis, Vernon Debus, and James
`Trimmer as class members for the limited purpose of receiving a copy of all filed papers and receiving
`notices of hearings.”).
`Markham v. White, 1999 WL 1072647, *6 (N.D. Ill. 1999) (“The final matter to be included in the notice,
`under
`Rule 23(c)(2)(C), is a statement informing the absentee member that if she does not request
`exclusion she may enter an appearance through counsel.”).
`In re Potash Antitrust Litigation, 162 F.R.D. 559, 561 (D. Minn. 1995) (“[W]e agree with the Plaintiffs
`that the phrasing of the Rule articulates an intendment that a party may elect to appear after it has decided
`not to opt-out of the class.”).
`Chester v. Beard, 2012 WL 4758346, *1 (M.D. Pa. 2012) (“Though the need for individual representation
`in a class action where the defendants have ‘acted or refused to act on grounds that apply generally to
`the class’ is usually minimal due to the cohesive nature of Rule 23(b)(2) classes, nothing in Rule
`23 prohibits class members from being represented by their own attorneys.” (quoting
`Fed. R. Civ.
`P. 23(b)(2))).
`Fed. R. Civ. P. 23(d)(1)(B)(iii) (“In conducting an action under this rule, the court may issue orders that
`… require—to protect class members and fairly conduct the action—giving appropriate notice to some
`or all class members of … the members' opportunity to signify whether they consider the representation
`fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action.”).
`Chester v. Beard, 2012 WL 4758346, *1 (M.D. Pa. 2012).
`In re Fine Paper Antitrust Litigation, 98 F.R.D. 48, 235, 1983-1 Trade Cas. (CCH) ¶ 65475 (E.D.
`Pa. 1983), judgment aff'd in part, rev'd in part,
`751 F.2d 562, 1985-1 Trade Cas. (CCH) ¶ 66337, 17
`Fed. R. Evid. Serv. 222 (3d Cir. 1984) (rejected by,
`In re Agent Orange Product Liability Litigation,
`818 F.2d 226, 7 Fed. R. Serv. 3d 1003 (2d Cir. 1987)) (rejecting argument that hiring own counsel who
`entered an appearance exempted individuals from paying share of attorney's fees to class attorneys when
`own counsel did not contribute to creation of fund and further concluding that having own counsel did
`not oust class counsel as individuals' attorneys).
`Wright v. Schock, 742 F.2d 541, 545, Fed. Sec. L. Rep. (CCH) P 91659, 40 Fed. R. Serv. 2d 73 (9th
`Cir. 1984) (“Absent class members have no obligation to pay attorneys' fees and litigation costs, except
`when they elect to accept the benefit of the litigation.” (citing Newberg on Class Actions)).
`Lankhorst v. Independent Savings Plan Company, 2015 WL 5724369, *10 (M.D. Fla. 2015) (holding that
`absent class members “cannot be held liable for their pro rata share of the taxable costs” in part because
`of the court's finding that the class notice that was sent to the putative class members did not include any
`warning that a class member could be held liable for a share of the defendant's costs if that member chose
`not to opt out and the class's claim ultimately failed (citing Newberg on Class Actions)).
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`§ 9:37.Right to enter appearance through own counsel, 3 Newberg on Class Actions §...
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`Smith v. MCI Telecommunications Corp., 136 F.R.D. 189, 191 (D. Kan. 1991) (“Generally, absent class
`members have no responsibility for litigation costs or attorney's fees except ‘when they elect to accept
`the benefit of the litigation.’” (quoting Wright v. Schock, 742 F.2d 541, 545, Fed. Sec. L. Rep. (CCH)
`P 91659, 40 Fed. R. Serv. 2d 73 (9th Cir. 1984) (citing Newberg on Class Actions))).
`Lamb v. United Sec. Life Co., 59 F.R.D. 44, 48, Fed. Sec. L. Rep. (CCH) P 93764, 16 Fed. R. Serv.
`2d 1479 (S.D. Iowa 1973) (“[T]he Court has concluded that members of the class other than plaintiffs,
`who do not request exclusion, are not parties and would not be liable for costs even though otherwise
`bound by the judgment, whether favorable or unfavorable.”).
`Cf. Whiteway v. FedEx Kinkos Office & Print Services, Inc., 2007 WL 4531783, *2–3 (N.D. Cal. 2007)
`(taxing costs against named plaintiff in class action).
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`End of Document
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`© 2021 Thomson Reuters. No claim to original U.S. Government
`Works.
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` © 2021 Thomson Reuters. No claim to original U.S. Government Works.
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