Making class actions work: the untapped potential of the internet

University of Pittsburgh Law Review

Volumn 69, Issue 4, 2008, Pages 727-768

  Klonoff, Robert H ^a   Herrmann, Mark ^b   Harrison, Bradley W ^c  

^a LEWIS AND CLARK LAW SCHOOL   (United States)

^b Jones Day   (United States)

^c Jones Day   (United States)

Author keywords

[No Author keywords available]

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EID: 61349108040     PISSN: 00419915     EISSN: None     Source Type: Journal    
DOI: 10.5195/LAWREVIEW.2008.98     Document Type: Review

References (260)

1. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985).
2. See, e.g., Patrick Woolley, Rethinking the Adequacy of Adequate Representation, 75 TEX. L. REV. 571,630(1997).
3. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591,617 (1997) (citing JACK WEINSTEIN, INDIVIDUAL JUSTICE IN MASS TORT LITIGATION: THE EFFECT OF CLASS ACTIONS, CONSOLIDATIONS, AND OTHER MULTIPARTY DEVICES (1995)) (discussing "the efficient use of court resources and the conservation of funds" in aggregate litigation); William W. Schwarzer, Settlement of Mass Tort Class Actions: Order Out of Chaos, 80 CORNELLL. REV.837 (1995).
4. Shutts, 472 U.S. at 810 ("[A]n absent class-action plaintiff is not required to do anything. He may sit back and allow the litigation to run its course, content in knowing that there are safeguards provided for his protection.").
5. See Geoffrey P. Miller, Rethinking Certification and Notice in Opt-Out Class Actions, 74 UMKC L. REV.637, 641 (2006) ("[A]n interest in participation, taken alone, is not a significant due process concern when absent class members receive adequate representation.").
6. But see Woolley, supra note 2, at 630 ("Adequate representation simply does not adequately protect the rights of class members who wish to actively participate in the litigation of their claims. We need not ignore this reality for 'practical' reasons.").
7. FED. R. Crv. P. 23(a).
8. See ROBERT H. KLONOFF, CLASS ACTIONS AND OTHER MULTI-PARTY LITIGATION IN A NUTSHELL 33-38 (3d ed. 2007); ROBERT H. KLONOFF ET AL., CLASS ACTIONS AND OTHER MULTI-PARTY LITIGATION: CASES AND MATERIALS 69-83 (2d ed. 2006).
9. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997) (noting the use of class action lawsuits to resolve claims too numerous to be resolved one-by-one); Dukes v. Wal-Mart, Inc., 474 F.3d 1214,1222,1224 (9th Cir. 2007) (affirming the certification of a class estimated to include more than 1.5 million women).
10. PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION § 1.04 (Preliminary Draft No. 5,2008).
11. U.S. DEP'T OF COMMERCE,A NATION ONLINE: ENTERING THE BROADBAND AGE 4 (2004), available at https://www.esa.doc.gov/ Reports/NationOnlineBroadband04.htm.
12. America Internet Usage and Population Statistics, www.internetworldstats. com/stats2.htm (last visited Sept. 12, 2008) (citing Nielsen//NetRatings and International Telecommunication Union). In its 2007 Digital Future Report, the USC-Annenberg Center for the Digital Future reports that 77.6% of Americans over the age of twelve go online. Center for the Digital Future, USC-Annenberg School for Communication, Highlights: 2007 USC-Annenberg Digital Future Project 4 (2007), http://www.digital center.org/pdf/2007-Digital-Future-Report-Press- Release-112906.pdf (last visited Sept. 12, 2008) [hereinafter USC-Annenberg Digital Future Report].
13. Nielsen//NetRatings, United States: Average Web Usage, http://www.nielsen-netratings.com/ resources.jsp?section=pr-netv&nav=l (last visited Sept. 12,2008) (reporting twenty-six website domain visits per week for the week ending March 10, 2008); see also THE PEWRESEARCH CENTER FOR THE PEOPLE AND THE PRESS, NEWS CONSUMPTION AND BELIEVABILITY STUDY8 (2006), available at http://people-press.org/reports/pdf/282. pdf (reporting that the average internet user in the United States logs on to the internet ten times and visits twenty-six websites per week).
14. Id. (reporting ten hours, four minutes per week for the week ending Mar. 10,2008).
15. Press Release, Newspaper Association of America, Online Newspaper Viewership Reaches Record in 2007 (Jan. 24,2008), available at http://www.naa.org/PressCenter/SearchPressReleases/2008/ Online-Newspaper- Viewership.aspx.
16. Id.
17. THE PEW RESEARCH CENTER FOR THE PEOPLE AND THE PRESS, supra note 13, at 15.
18. U.S. DEP'T OF COMMERCE, supra note ll,at3. Time Magazine named "You" its 2006 Person of the Year based on Americans' increased and dramatic use of the internet. Lev Grossman, TIME's Person of the Year: You, TIME, Dec. 25, 2006, at 38, available at 2006 WLNR 21920577 (highlighting that the internet is "a tool for bringing together the small contributions of millions of people and making them matter").
19. Classifying websites by content or purpose poses difficulties. Among other things, it is not always clear whom the website targets or who sponsors the website. What appear to be public domain websites are often the product of interested legal, consulting, or marketing firms. See, e.g., Class Action Litigation Information, http://www.classactionlitigation.com (last visited Sept. 12, 2008) (a website "to provide a useful legal research source for attorneys" and "to assist the public in understanding class action litigation, government, and the legal system," operated by Timothy E. Eble, a class action lawyer). Although many of the websites discussed in this section may perform multiple functions, each is discussed under the heading that it best represents.
20. See FED. R. Civ. P. 23(c), (d)(2), (e)(1)(B), and (h)(1).
21. MANUAL FOR COMPLEX LITIGATION (FOURTH) §21.31 (2004).
22. FED. R. Crv. P. 23(cX2); Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974); see also Todd B. Hilsee et al., The "Desire-to-Inform" Requirement for Effective Class Action Notice is Highlighted by Katrina, 80 TUL. L. REV. 1771 (2006); Jordan S. Ginsberg, Comment, Class Action Notice: The Internet's Time Has Come, 2003 U. CHI. LEGAL F. 739, 762 (2003).
23. U.S. CENSUS BUREAU, CURRENT POPULATION SURVEY, 2005 ANNUAL SOCIAL AND ECONOMIC SUPPLEMENT, tbl. 30 (2005), available at http://www.census.gov/population/www/socdemo/migrate/ cps2005.html. Because of the manner in which this statistic is reported, the number may actually be much higher.
24. Id.
25. Id.
26. Id.
27. Id.
28. See Hilsee et al., supra note 22, at 1774.
29. Id. at 1791.
30. See, e.g., DeJulius v. New Eng. Health Care Employees Pension Fund, 429 F.3d 935,947 (10th Cir. 2005) (holding that a notice program that included newspaper publication satisfied the notice requirement); Reppert v. Marvin Lumber & Cedar Co., 359 F.3d 53, 57 (1st Cir. 2004) (holding that publication notice in thirty-three newspapers satisfied the notice requirement as to a class member who did not receive direct mail notice).
31. The decline of newspaper readership exacerbates the long-recognized problem that absent class members are not likely to encounter a legal notice published in a newspaper, even if they read the paper. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,315 (1950) ("Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed.").
32. THE PROJECT FOR EXCELLENCE IN JOURNALISM, THE STATE OF THE NEWS MEDIA 2007: NEWSPAPERS, INTRO (2007), http://www. stateofthenewsmedia.org/2007/narrative-newspapers-intro.asp? cat=l&media=3 (last visited Sept. 12,2008) [hereinafter THE PROJECT FOR EXCELLENCE IN JOURNALISM, THE STATE OF THE NEWS MEDIA 2007].
33. Id.
34. THE PROJECT FOR EXCELLENCE IN JOURNALISM, THE STATE OF THE NEWS MEDIA 2006, Overview, Audience (2006), http://www.stateofthenewsmedia.org/ 20067narrative-overview-audience.asp ?cat=4&media=l (last visited Sept. 12,2008).
35. THE PROJECT FOR EXCELLENCE IN JOURNALISM, THE STATE OF THE NEWS MEDIA 2006, Overview, http://www.stateofthenewsmedia.org/2006/narrative- newspapers-audience.asp.
36. THE PROJECT FOR EXCELLENCE IN JOURNALISM, THE STATE OF THE NEWS MEDIA 2007, supra note 32.
37. In the first half of 2006, USA Today's readership fell 3% and the New York Times' readership fell 5.8%. Newspaper Website Readership Up 31%, USA TODAY, Oct. 4, 2006, available at http://www.usatoday.com/ tech/news/2006-10-04-news-web-up-x.htm. Although the Wall Street Journal has maintained its readership, it includes in that number individuals who access the Wall Street Journal online. Id.
38. See Ginsberg, supra note 22, at 759 (highlighting that a thirty-second prime-time commercial cost $150,000 to air and another $343,000 to produce in 1999).
39. Id. at 760-61.
40. See USC-Annenberg Digital Future Report, supra note 12, at 2.
41. See Brian Steinberg, Nielsen Delays Plan to Release Viewership Ratings for TV Ads, WALL ST. J., Nov. 4,2006, at A2 ("WhileNielsen now measures how many people watch TV programs-a rating used to set TV ad prices-it hasn't previously released formal ratings showing how audience levels change during a commercial break.").
42. Id.
43. See, e.g., Brian Walters, "Best Notice Practicable " in the Twenty-First Century, 2003 UCLA J.L. & TECH. 4; Ginsberg, supra note 22, at 760; Jeanne Finnegan, The Web Offers Near, Real-Time Cost-Efficient Notice, 22 AM. BANKR. INST. L.J. 30 (2003); Katherine Kinsella et al., How Viable is the Internet for Class Action Notice?, http://www.kinsella-novak.com/PDFs/KNCInternetArticle.pdf (last visited Sept. 12,2008).
44. MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.311 (2004).
45. See, e.g., Nichols v. SmithKline Beecham Corp., No. 00-6222,2005 U.S. Dist. LEXIS 7061, at *29-35 (E.D. Pa. Apr. 22, 2005) (holding that internet notice will be deemed adequate so long as it is combined with other forms of notice such as mailers); House v. GBaxoSmithKline PLC, No. 2:02CV442, 2005 U.S. Dist. LEXIS 33711, at *8 (E.D. Va. Jan. 10,2005) (holding that hosting a website dedicated to the pending litigation and providing other forms of traditional notice to class members fulfilled the notice requirement found in Rule 23); In re Global Crossing Sec. and ERISA Litig., 225 F.R.D. 436, 448-49 (S.D.N.Y. 2004) (holding that internet notice combined with other forms of notice, including mailed individual notice packets, satisfied Rule 23).
46. See, e.g., Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 786 (7th Cir. 2004) ("[I]n this age of electronic communications, newspaper notice alone is not always an adequate alternative to individual notice. . . . The World Wide Web is an increasingly important method of communication, and ... an increasingly important substitute for newspapers." (citing Walters, supra note 43)).
47. See, e.g., In re Briscoe, 448 F.3d 201,207 (3d Cir. 2006) (affirming the trial court's decision that the notice, including "banner advertisements on the [i]nternet directing class members to the official settlement website" proved to be "highly successful").
48. See, e.g., In re Stock Exchs. Options Trading Antitrust Litig., No. M-21-79(RCC), 2006 U.S. Dist. LEXIS 87825, at *23-24 (S.D.N.Y. Dec. 4,2006) (holding that a notice program that included posting the '"Summary Notice of Proposed Settlements and Hearing Thereon'" on an Internet Business Wire website proved reasonable and adequate).
49. See, e.g., Lucas v. Kmart Corp., No. 99-CV-01923-JLK, 2006 U.S. Dist. LEXIS 51439, at *19 (D. Colo. July 27,2006) (holding that including email notice in a notice program went "above and beyond that required by law").
50. See, e.g., Hilsoft Notifications, http://www.hilsoft.com/the- media-experts.html (last visited Sept. 12, 2008); Epiq, http://www.epiqsystems. com/solutions.php?ServiceID=19 (last visited Sept. 12, 2008) ("We are industry leaders in full-service class action notice and bankruptcy notice plan design, implementation and analysis. Epiq has developed more than 200 notification programs and placed more than $225 million in media notices."); Garden City Group, http://www.gardencitygroup.com/about/ informationtechnologies.html (last visited Sept. 12, 2008) ("The cornerstone of our success lies in our proprietary software. Not only do our claims processing systems virtually eliminate paper handling, but they also allow for immediate access to case details at any level."); The Notice Company, http://www .notice.com (last visited Sept. 12, 2008) ("We also provide internet consulting, web design and hosting services."); Class Action Administration, Inc., http://www.classactionadmin.com/services/claim.htm (last visited Sept. 12,2008).
51. This is not to suggest that the companies that sponsor these websites are not motivated by the financial gains derived from providing this information. These companies profit, however, by providing information itself-not from whether website visitors pursue their claims after obtaining the information supplied.
52. FindLaw, About FindLaw, http://company.fmdlaw.com/company-info.html (last visited Sept. 12,2008).
53. FindLaw Class Action Center, http://classaction.findlaw.com (last visited Sept. 12,2008).
54. See, e.g., FindLaw For the Public, http://injury.findlaw.com/ lexapro (last visited Sept. 12,2008).
55. FindLaw Class Action Center, supra note 53.
56. Id.
57. See supra notes 11-18 and accompanying text.
58. Stanford Securities Class Action Clearinghouse, http://securities. stanford.edu (last visited Sept. 12,2008).
59. See id.
60. Id.
61. Id.
62. See Class Action Lawsuits, http://www.web-access.net/~aclark/ frames45.htm (last visited Sept. 12, 2008).
63. Id.
64. Class Action Lawsuits, Legal Contacts for Class Actions, http://www.web-access.net/~aclark/ contacts.htm (last visited Sept. 12, 2008).
65. FreeAdvice, http://www.freeadvice.com (last visited Sept. 12,2008).
66. See FreeAdvice, Litigation-Class Actions Center, http://law.freeadvice.com/litigation/class -actions (last visited Sept. 12, 2008).
67. See id.
68. See Class Action Litigation Information, http://www. classactionlitigation.com (last visited Sept. 12,2008).
69. Id.
70. See id.
71. The number of internet users that maintain blogs has doubled in the last three years. USC-Annenberg Digital Future Report, supra note 12, at 2. A leader in blog tracking, Technorati was tracking over 82 million blogs as of May 2007. Technorati: About Us, http://www.technorati.com/about (last visited Sept. 12, 2008). There are also a number of websites dedicated to tracking legal blogs. See, e.g., http://uslaw.com/law-blogs (tracking over 1,000 legal blogs); http://abajournal.com/blawgs (another website tracking legal blogs).
72. Mass Tort Litigation Blog, http://lawprofessors.typepad.com/mass-tort- litigation (last visited Sept. 12, 2008).
73. PointofLaw.com, http://www.pointoflaw.com (last visited Sept. 12,2008).
74. Products Liability Prof Blog, http://lawprofessors.typepad.com/products- liability (last visited Sept. 12,2008). Both the Products Liability Prof Blog and the Mass Tort Litigation Blog fall within the Law Professors Blog Network. See Welcome to Law Professor Blogs, http://www.lawprofessorblogs.com (last visited Sept. 12,2008).
75. Drug and Device Law, http://druganddevicelaw.blogspot.com (last visited Sept. 12, 2008).
76. Over Reg'd Blog, http://overregd.lindquist.com (last visited Sept. 12,2008).
77. CAFA Law Blog, http://www.cafalawblog.com (last visited Sept. 12,2008).
78. Class Action Defense Blog, http://classactiondefense.jmbm.com (last visited Sept. 12, 2008).
79. Class Action Fairness Act Blog: About Us, http://www.cafalawblog.com/cat- about-us.html (last visited Sept. 12,2008).
80. See id.
81. See id.
82. Defense firms also devote webpages to their class action practices. See, e.g., Jones Day, Services, Class Action Litigation, Overview, http://www.jonesday.com/class-action-litigation (last visited Sept. 12,2008); Latham & Watkins, LLP., Class Actions and Multi-District Litigation, http://www.lw.com/ Practices.aspx?page=practicedetail&practice=212 (last visited Sept. 12,2008); Sidley Austin LLP, Class Action and Multidistrict Litigation, http://www.sidley.com/classaction-mdl (last visited Sept. 12,2008); Winston & Strawn LLP, Class Actions, http://www.winston.com/index.cfin? contentID=19&itemID=274 (last visited Sept. 12,2008). Presumably, these websites are designed to attract defendants threatened with or involved in class action litigation.
83. See Unger v. Amedisys Inc., 401 F.3d 316,320 (5th Cir. 2005) ("As is often the case, plaintiffs' lawyers solicited potential class members over the internet and through newspaper advertisements.").
84. Milberg, http://www.milberg.com (last visited Sept. 12, 2008).
85. See Medtronic Sprint Fidelis, http://www.milberg.biz/sprint- fidelis.html (last visited Sept. 12, 2008).
86. Id.
87. See Law Firm of Motley Rice LLC, http://www.motleyrice.com (last visited Sept. 12,2008).
88. See, e.g., The Law FirmofMotley Rice LLC-Catastrophic Injury, http://www.motleyrice.com/ catastrophicinjury/default.asp (last visited Sept. 12, 2008) ("The attorneys of Motley Rice's catastrophic injury practice group represent individual victims and families affected by tragic events caused by dangerous consumer products, occupational and industrial accidents, fires, premises injuries and other calamities or negligent acts.").
89. See id.
90. See Mesothelioma Lawyer, http://www.aboutmeso.com (last visited Sept. 12,2008).
91. This website makes clear that it is operated by Motley Rice. Indeed, the firm's name appears conspicuously throughout the website and is explicitly featured in the "contact us" section. Id.
92. Id.
93. http://www.aboutmeso.com/mesothelioma-litigation.asp.http (last visited Sept. 12, 2008).
94. http://www.aboutmeso.com/contact.asp?from=Mesothelioma%20Litigation (last visited Sept. 12,2008) ("Call us toll free... or fill out the form below ").
95. See, e.g., Electronic Frontier Foundation, http://www.eff.org/wor (last visited Sept. 12,2008) (highlighting recent activities); Public Citizen, Cases and Documents, http://www.citizen.org/litigation/ briefs (last visited Sept. 12,2008) (calling for support for Public Citizen's continuing litigation and other advocacy endeavors).
96. Electronic Frontier Foundation, http://www.eff.org (last visited Sept. 12, 2008).
97. Id. EFF posts press releases, news reports, legal documents, rulings, and links for further information on its website.
98. http://www.eff.org/cases/hepting (last visited Sept. 12, 2008).
99. See, e.g., EFF's Action Center, at http://action.eff.org/site/ PageServer?pagename=ADV- homepage (last visited Sept. 12, 2008) (allowing visitors to contact their representatives online about pending legislation).
100. Public Citizen, About Public Citizen, http://www.citizen.org/about/ (last visited Sept. 12,2008).
101. Public Citizen, Cases and Documents, http://www.citizen.org/litigation/ briefs (last visited Sept. 12,2008).
102. Public Citizen, Class Action, http://www.citizen.org/litigation/briefs/ class-action (last visited Sept. 12,2008).
103. http://www.classaction.com (last visited Sept. 12,2008).
104. Id.
105. Id.
106. For example, the website's Vioxx page explains that "Vioxx, a widely prescribed arthritis drug, has been taken off the market following the results of a three-year study linking use of the drug to higher incidence of heart attack and stroke." Classaction.com, Drugs, Vioxx, http://www.classaction. com/ drugs-vioxx.cfm (last visited Sept. 12, 2008). Following the presentation of additional information, the webpage announces "If you or someone you know has suffered serious side effects or injury that you believe may be related to your usage of Vioxx, you may be eligible to file a claim." Id.; see also http://www.class action.com/drugs-ppa.cfm (last visited Sept. 12, 2008) ("If you or someone you know has experienced a stroke and had previously taken any of the medicines containing PPA, you may have a valid legal claim.").
107. Id.
108. Legal News and Legal Help, http://www.lawyersandsettlements.com (last visited Sept. 12,2008).
109. See, e.g., Zyprexa, Diabetes, and Weight Gain, http://www.lawyersandsettlements.com/ case/zyprexa.html (last visited Sept. 12,2008) ("If you have or a loved on[e] has taken Zyprexa and suffered from diabetes or hyperglycemia, you may qualify for damages or remedies that may be awarded in a Zyprexa class action or lawsuit. Click the link below to send your Zyprexa complaint to a lawyer....").
110. See, e.g., Worldcom Securities Litigation, http://www. worldcomlitigation.com (last visited Sept. 12,2008) (providing electronic access to the notices and claim forms previously sent to class members through traditional mail and information about submitting claim forms).
111. See, e.g., In re PayPal Litigation website, at http://www.settlement4onlinepayments.com (last visited Sept. 12,2008).
112. Masonite Class Action Settlement Website, http://www.masoniteclaims.com (last visited Sept. 12,2008).
113. See, e.g., Masonite Omniwood, http://www.masoniteclaims.com/ omniwood2index.htm (last visited Sept. 12, 2008).
114. Id.
115. Id.
116. Id.
117. In Re Literary Works in Electronic Databases Copyright Litigation, Copyright Settlement http://www.copyrightclassaction.com (last visited Sept. 12,2008). The In Re Literary Works in Electronic Databases Copyright Litigation was brought by a group of "three writers organizations and 21 freelance authors... against a group of commercial electronic databases and print publishers, alleging that they had infringed the copyrights of thousands of freelance contributors to newspapers, magazines, and other print publications." Copyright Settlement, Frequently Asked Questions, http://www.copyrightclassaction.com/ faq.php3#l (last visited Sept. 12,2008).
118. Id. (noting that details about claims administration process were sent to class members both by electronic notice and letter).
119. Copyright Settlement, Comments, https://cert.tgcginc.com/edb/comments. php3 (last visited Sept. 12,2008).
120. HR&S Claims Administration, http://www.hrsclaimsadministration.com (last visited Sept. 12, 2008).
121. HR&S Claims Administration, Cases, http://www. hrsclaimsadministration.com/cases/?type=all (last visited Sept. 12, 2008); see also Complete Claim Solutions, LLC, Listing of Settlements, http://www.completeclaimsolutions.com/settlements.html (last visited Sept. 12,2008) (providing a partial listing of settlements CCS is handling).
122. Id.
123. The search was conducted on September 12,2008.
124. There are eighty-nine district courts in the fifty states and another five in Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. Each has a dedicated website. See U.S. Courts, http://www.uscourts.gov/courtlinks (last visited Sept. 12,2008).
125. See Southern District of Indiana, http://www.insd.uscourts.gov (follow "Case Information" hyperlink; then follow "Information on Class Actions" hyperlink) (last visited Sept. 12, 2008); Eastern District of Louisiana, http://www.laed.uscourts.gov (last visited Sept. 12, 2008); Middle District of Louisiana, http://www.lamd.uscourts.gov (follow "Court Links" hyperlink; then follow "Brusly Barge Claims" hyperlink) (last Sept. 12,2008); District of Maine, http://www.med.uscourts.gov (follow "General Information" hyperlink; then follow "Class Action Litigation" hyperlink) (last visited Sept. 12, 2008); Eastern District of Michigan, http://www.mied.uscourts.gov (follow "Dow Corning Litigants" hyperlink) (last visited Sept. 12,2008); Southern District of Mississippi, http://www.mssd.uscourts.gov (last visited Sept. 12,2008); Eastern District ofNew York, http://www.nyed.uscourts.gov (last visited Sept. 12,2008); Southern District of Texas, http://www.txsd.uscourts.gov (follow "Notable cases" hyperlink) (last visited Sept. 12, 2008). The websites contain "readily available information" when the website's homepage identifies a class action lawsuit by name or through a clearly-marked portal, such as "class action information" or "notable cases."
126. All federal district courts offer the Public Access to Court Electronic Records (PACER) service, so presumably case information is available on all federal court websites. The focus of this Article, however, is not the labyrinth of available legal research tools, but sharing information with non-lawyers. Thus, PACER's availability is not discussed further here.
127. See Barge Release Class Action Information Packet and Legal Notice, available at http://www .lamd.uscourts.gov/cmecf/pdf-court- documents/3-04cv00611-178-4.pdf. The Barge Release Class Action arose from "the release of air contaminants from a barge known as the FT-22 on the Mississippi River in Baton Rouge, Port Allen and Brusly, Louisiana occurring on or about April 27-28,2004." Id. at 6.
128. Barge Release Class Action Notice, http://www.rivercityclaims.com (last visited Sept. 12,2008).
129. Id. The Southern District of Mississippi gives similar treatment to the many Katrina-related cases pending in that court. Hurricane Katrina Insurance Orders and Opinions, http://www.mssd.uscourts .gov/insurance.htm (last visited Sept. 12,2008).
130. See, e.g., District of Maine Electronic Notification, http://www.med.uscourts.gov/rules/ elecnotification.htm (last visited Sept. 12,2008).
131. N.D. CAL. R. 23-2. The list of documents to be posted include pleadings, briefs, documents pertaining to class certification, expert witness reports, pretrial conference statements, settlement approval filings, and more. Id.
132. Stanford's Clearinghouse, discussed supra notes 58-61 and accompanying text, clearly benefits from the Northern District of California's local rule. The website serves as a substitute for the court's and provides the wealth of information discussed above with negligible cost to the parties and little, if any, court involvement. See Walters, supra note 43; Joan Lambert, Stanford Law School's Securities Class Action Clearinghouse: Securities Litigation Meets the Web, INSIGHTS, July 1997, at 14.
133. See U.S. Judicial Panel on Multidistrict Litigation Home, http://www.jpml.uscourts.gov (last visited Sept. 12,2008). The Judicial Panel on Multidistrict Litigation was created by an Act of Congress in 1968. See 28 U.S.C. § 1407 (2000).
134. See U.S. Judicial Panel on Multidistrict Litigation, Overview, http://www.jpml.uscourts.gov/ General-lnfo/overview/overview.html (last visited Sept. 12,2008).
135. Id.
136. Id.
137. Id. The website offers the list in case-name alphabetical order by district and is grouped by type of MDL proceeding-e.g., antitrust, contracts, products liability, and securities.
138. Id.
139. See Vioxx Product Liability Current Developments, http://vioxx.laed.uscourts.gov (last visited Sept. 12, 2008). As the website explains the litigation: [T]he plaintiffs have filed suit alleging certain actual and potential risks associated with the medication known generically as Vioxx. Defendants Merck & Co., Inc. produced Vioxx to treat arthritis and acute pain. The plaintiffs contend that Vioxx caused death and other injuries to themselves or their family members who took Vioxx. Introduction, http://vioxx.laed.uscourts.gov/Intro.htm (last visited Sept. 12, 2008).
140. Id.
141. Vioxx Product Liability, http://vioxx.laed.uscourts.gov/ (last visited Sept. 12, 2008).
142. Frequently Asked Questions, http://vioxx.laed.uscourts.gov/FAQ/faq.htm (last visited Sept. 12, 2008).
143. Forms, http://vioxx.laed.uscourts.gov/Forms/Forms.htm (last visited Sept. 12,2008). The forms offered on the website include: Counsel Contact Information Form, Check Request Form, Time and Expense Guidelines, Member Firm Time, Common Held Costs and Expenses, Final Plaintiff Profile Form, Final Merck Profile Form, and Final Authorization Forms. Id.
144. Calendar, http://vioxx.laed.uscourts.gov/Calendar/Calendar.htm (last visited Sept. 12, 2008).
145. See, e.g., MDL-1203, In re Diet Drugs (Phentermine/ Fenfluramine/Dexfenfluramine) Products Liability Litigation, http://www.fenphen1203.com (last visited Sept. 12,2008); MDL-1348, In re Rezulin Products Liability Litigation, http://www.nysd.uscourts.gov/courtweb (last visited Sept. 12, 2008); MDL-1355,Propulsid Product Liability Litigation,http://propulsid.laed.uscourts.gov (last visited Sept. 12, 2008); MDL-1373, In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, http://www.insd .uscourts.gov/Firestone/default.htm (last visited Sept. 12,2008); MDL-1396, In re St. Jude Medical, Inc., Silzone Heart Valves Products Liability Litigation, http://www.mnd.uscourts.gov/Tunheim-Mdl/ index.htm (last visited Sept. 12, 2008); MDL-1507, In re Prempro Products Liability Litigation, http://www.are .uscourts.gov/mdl/index.cfm (last visited Sept. 12,2008); MDL-1401, In re Sulzer Orthopedics, Inc., Hip Prosthesis and Knee Prosthesis Products Liability Litigation, http://www.ohnd.uscourts.gov/ Clerk-s- Office/Notable-Cases/notable-cases (last visited Sept. 12,2008); MDL-1407, In re Phenylpropanolamine (PPA) Products Liability Litigation, http://www.wawd.uscourts.gov/wawd7mdl.nsf/main/page (last visited Sept. 12, 2008); MDL-1431, In re Baycol Products Liability Litigation, http://www.mnd.uscourts.gov/ Baycol-Mdl/index.htm (last visited Sept. 12,2008); MDL-1699, In re Bextra and Celebrex Marketing, Sales Practices and Products Liability Litigation, https://ecf.cand.uscourts.gov/cand/bextra (last visited Sept. 12,2008). Although this list of MDL websites appears to be comprehensive, it includes only some of the MDL proceedings mentioned on the Judicial Panel on Multidistrict Litigation's "Products Liability" list. See Products Liability Litigation, http://www.jpml.uscourts.gov/ Docket-Info/Products-Liability/ products-liability.html (last visited Sept. 12,2008). This list includes no cases from the Panel's other nine case-category lists.
146. See MARK HERRMANN ET AL., STATEWIDE COORDINATED PROCEEDINGS: STATE COURT ANALOGUES TO THE FEDERAL MDL PROCESS 375-412 (2d ed. 2004).
147. http://www.judiciary.state.nj.us/mass-tort/index.htm (last visited Sept. 12,2008).
148. See Vioxx Information Center, http://www.judiciary.state.nj .us/mass-tort/vioxx/index.htm (last visited Sept. 12,2008).
149. Mass Tort and Centralized Management Information Center, supra note 147 (last visited Sept. 12, 2008).
150. See Vioxx Information Center, supra note 148 (last visited Sept. 12, 2008) (providing Case Management Orders, Case Management Recommendations, Counsel Lists, Department Staff, Events Calendar, Judges Assigned, and a link to Other Orders & Decisions).
151. See External Participants, The Judiciary's IT Objectives, http://www.uscourts.gov/itplan/ extemal.html (last visited Sept. 12,2008) (highlighting the success and popularity of the courts' Electronic Public Access Program).
152. M.R. Kropko, Ohio Lower Court Hopping Into Video Online Trend, USA TODAY, Jan. 18, 2005, available at http://www.usatoday.com/tech/news/ 2005-01-18-sentenced-online-x.htm (quoting Lloyd Snyder, professor at Cleveland State University Cleveland-Marshall College of Law as saying, "This is coming. With 'Court TV' available, people are getting used to having things like this out there . . . .").
153. See supra Part LA.
154. See supra Part I. A.; see also U.S. DEP'T OF COMMERCE, supra note 11, at 4 (emphasizing the increasing reliance on the internet as a means of communication).
155. See supra note 43 and accompanying text.
156. See supra Part LA.
157. MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.313 (2004).
158. Id.
159. FED. R. CIV. P. 23(dX2).
160. MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.313 (2004) (citing Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354 (1983); Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 561 (1974); Culver v. City of Milwaukee, 277 F.3d 908, 915 (7th Cir. 2002)).
161. Id.
162. See, e.g., Z-Seven Fund, Inc.v.Motorcar Parts & Accessories, 231 F.3d 1215,1218-19 (9th Cir. 2000) ("It is not inconceivable that a lead plaintiff appointed originally might turn out to be an inadequate class representative and that a change might have to be made.").
163. See FED. R. CIV. P. 23(d)(2); see, e.g., Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) (holding that intervention was appropriate where an absent class member moved to intervene and substitute himself as the class representative once he received notice that his individual rights may have been impaired had he not been allowed to intervene).
164. See supra Part LA.
165. See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.313 (2004) ("The court may consider using means less costly than personal notice.").
166. See In re Cendant Corp. Litig., 264 F.3d 286, 296 (3d Cir. 2001) ("The fiduciary duty to the class exists because the very nature of the class action device prevents many who have claims from directly participating in the litigation process." (citation omitted)); Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072,1078 (2d Cir. 1995) ("The ultimate responsibility to ensure that the interests of class members are not subordinated to the interests of either the class representatives or class counsel rests with the district court." (citation omitted)).
167. Eisenv.Carlisle & Jacquelin,417 U.S. 156,173 n.ll (1974)(quotingFED.R.Crv.P.23(c)(2)).
168. PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION § 3.04 (Preliminary Draft No. 5,2008) ("The value of the claim may be so small that litigation outside of the class context would not be viable, and the likelihood of opting out or objecting may be so low that individual notice would simply consume resources from the settlement without generating any real benefit for the class.").
169. Id.
170. Id.
171. For example, email messages can include "read receipts," i.e., email messages returned to the sender when the recipient opens the email confirming that the message was received.
172. As discussed above, class members in Rule 23(b)(3) class actions are given an explicit right to "opt out" of the litigation. See
173. See supra Part I.C.
174. See, e.g., Lois M. Collins, Filing for Rebates Isn't for the Fainthearted, DESERET MORNING NEWS, Jan. 18,2007, at A9; Humberto Cruz, Hassle of Getting a Mail-In Rebate Will Try Your Patience, SUN-SENTINEL, Jan. 24,2007, at 3D.
175. Cf. Theodore Eisenberg & Geoffrey Miller, The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues, 57 VAND. L. REV. 1529, 1532 (2004) ("[0]n average, less than 1 percent of class members opt-out and about 1 percent of class members object to class-wide settlements.").
176. See Louisiana Middle District, http://www.lamd.uscourts.gov (follow "court links") (last visited Sept. 12, 2008).
177. Id.
178. See Barge Release Class Action Settlements, http://www. rivercityclaims.com (last visited Sept. 12,2008).
179. See PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION § 3.04 (Preliminary Draft No. 5,2008); cf. Nancy Morawetz, Bargaining, Class Representation, and Fairness, 54 OHIO ST. L.J. 1, 24 (1993) ("Costly procedures may also operate to make settlements less inclusive, rather than more inclusive. For example, complex procedures for proving class membership can serve to discourage a response from class members, while at the same time being more expensive to administer.").
180. External Participants, The Judiciary's IT Objectives, http://www.uscourts.gov/itplan/external .html (last visited Sept. 12,2008).
181. Id.
182. See supra Part I; see also External Participants, The Judiciary's IT Objectives, http://www .uscourts.gov/itplan/external.html (last visited Sept. 12,2008) ("[C]ourts maintain internet web sites with court-specific information and rules, and the electronic public access program provides access to case-related information.").
183. MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.3 (2004). The Manual goes on to stress how "[i]t is important to develop appropriate means for providing information to... class members." Id. at 284-85.
184. See supra Part I.D.
185. See USC-Annenberg Digital Future Report, supra note 12 (reporting that over 55% of internet users believe most or all of the information reported on the internet is reliable and accurate). The authors of this Article can attest to the difficulty in distinguishing reliable, unbiased information about class actions from information that is biased or incomplete. The authors conducted many web searches on each topic discussed in this Article. These searches provided no shortage of results; sorting through these results to find reputable or credible information, however, proved to be a task one would not expect the typical internet user to undertake. In many cases, the sheer volume of seemingly indistinguishable results would deter the internet user from performing a detailed or selective investigation.
186. See Wikipedia:About, http://en.wldpedia.Org/wild/Wikipedia:About (last visited Sept. 12,2008) ("Since its creation in 2001, Wikipedia has grown rapidly into one of the largest reference Web sites, attracting at least 684 million visitors yearly by 2008." (citation omitted)). The website's greatest attribute may also be its biggest flaw: "Wikipedia is written collaboratively by volunteers from all around the world Most of the articles can be edited by anyone with access to the [i]nternet, simply by clicking the edit this page link." Id.; see also Microsoft Offers Pay for Wikipedia Fix, L.A. TIMES, Jan. 24, 2007, at C3 (explaining how Microsoft offered to pay a blogger to "correct" information on Wikipedia).
187. See, e.g., United States District Court for the District of Maryland, www.mdd.uscourts.gov (last visited Sept. 12,2008); United States District Court, District of Nevada, http://www.nvd.uscourts.gov (last visited Sept. 12,2008); U.S. District Court - Oregon, http://ord.uscourts.gov (last visited Sept. 12,2008).
188. See supra Part I.D.
189. See, e.g., Yahoo, How are Web Documents Ranked?, http://help.yahoo.com/help/us/ysearch/ ranking/ranking-01 .html (last visited Sept. 12,2008).
190. The searches were conducted on September 12,2008.
191. See IPROSPECT, SEARCH ENGINE USER BEHAVIOR STUDY 3 (2006), available at http://www .iprospect.com/about/whitepaper-seuserbehavior- apr06.htm ("[Sixty-two percent] of search engine users click on a search result within the first page of results, and a full 90% of search engine users click on a result within the first three pages of search results."). The study goes on to note that "more users are abandoning their query after reviewing the first page now (41%) than in 2002 (28%)." Id.
192. Pub. L. No. 109-2,119 Stat. 4 (codified in scattered sections of 28 U.S.C.).
193. See Robert H. Klonoff & Mark Herrmann, The Class Action Fairness Act: An Ill-Conceived Approach to Class Settlements, 80 TUL. L.REV. 1695,1696-97 (2006) ("It is well known that under CAFA, most major class actions, including virtually all multistate class actions, will now be heard in federal court."); John Beisner & Jessica Davidson Miller, Fulfilling Framers' Promise, NAT'L L.J. 22 (Feb. 13, 2006).
194. EMERY G.LEE III & THOMAS E. WILLGING,THE FEDERAL JUDICIAL CENTER, THE IMPACT OF THE CLASS ACTION FAIRNESS ACT OF 2005: FOURTH INTERIM REPORT TO THE JUDICIAL CONFERENCE ADVISORY COMMITTEE ON CIVIL RULES 1 (2008), available at http://www.fjc.gov/public/pdf.nsf/lookup/cafa O408.pdf/$file/cafe0408.pdf (noting, however, that not all of this increase is attributable to CAFA, as the number of federal question cases accounts for a large percentage of the increase).
195. See generally Walters, supra note 43.
196. See id.
197. See Federal Judicial Center, http://www.fjc.gov (last visited Sept. 12,2008).
198. Given the large number of law schools in the United States and the prestige that would be associated with operating such a website, there should be no shortage of volunteers to host the website. Allowing an individual law school or a cooperative of law schools to operate such a website would relieve the courts of the administrative responsibilities and costs of doing so themselves. See, e.g.; Tony Wright, Lawyers Say MA Supreme Judicial Court's Webcasts Will Be Vital Practice Tool, MASS. LAW. WKLY., Apr. 25, 2005, available at 2005 WLNR 24530520 ("With the ongoing costs being borne by Suffolk University Law School, . . . managing the webcasts and accompanying website won't cost the commonwealth-including the court system-a dime.").
199. The Federal Judiciary's website contains a link to the JPML website. See U.S. Courts, http:// www.uscourts.gov/courtlinks/#other (last visited Sept. 12, 2008). The Northern District of California's website already posts a link to the Clearinghouse. See California Northern Links, http://www.cand.us courts.gov/cand/links.nsf/ la65c343a2f833c28825643c00270ad27Open View(last visited Sept. 12,2008).
200. See National Center for State Courts, http://www.ncsconline.org (last visited Sept. 12,2008).
201. eeNCSC:KnowledgeandInforraationServices,http://www.ncsconline.org/WC/ Publications/ MassTorts/MassTortIndex.htm (last visited Sept. 12,2008).
202. See, e.g., New Jersey Judiciary, Mass Tort and Centralized Management Information Center, http://www.judiciary.state.nj.us/mass-tort/index. htm (last visited Sept. 12,2008). As discussed above, New Jersey's Mass Tort and Centralized Management Information Center provides a wealth of information on all mass tort litigation in New Jersey, including consolidated cases and class actions, on a single webpage. See supra notes 146-50 and accompanying text.
203. Background on Cameras in Federal Courts, http://www.courtsandmedia.org/ research/court- media-rules/admin-office-u-s-cts-cameras.htm (last visited Sept. 12,2008). Cameras in criminal trials have been expressly prohibited since 1946. See also FED. R. CRIM. P. 53.
204. Background on Cameras in Federal Courts, supra note 203.
205. Id.
206. MOLLY TREADWAY JOHNSON & CAROL KRAFLEA, FEDERAL JUDICIAL CENTER, ELECTRONIC MEDIA COVERAGE OF FEDERAL CIVIL PROCEEDINGS: AN EVALUATION OF THE PILOT PROGRAM IN SIX DISTRICT COURTS AND TWOCOURTSOF APPEALS 4 (1994), available at http://www.fjc.gov/public/pdf.nsf/ lookup/elecmediacov. pdf7$file/elecmediacov.pdf.
207. Id. at 43 ("The research project staffrecommends that the Judicial Conference authorize federal courts of appeals and district courts nationwide to provide camera access to civil proceedings in their courtrooms, subject to Conference guidelines ....").
208. Background on Cameras in Federal Courts, supra note 203.
209. See S. 352,110th Cong. (2008).
210. Id. § 2(b)(l)(A).
211. See. e.g., Sunshine in the Courtroom Act of 2005, S. 829,109th Cong. (2005); H.R. 2519,107th Cong. (2001) (proposing to allow "the photographing, electronic recording, broadcasting, or televising to the public of court proceedings"); H.R. 1281, 106th Cong. (1999); Sunshine in the Courtroom Act, H.R. 1280, 105th Cong. (1997).
212. Background on Cameras in Federal Courts, supra note 203.
213. Media Information FAQs, http://www.ncsconline.Org/WC/CourTopics/F AQs.asp?topic=Media &Mode=pf#FAQ765 (last visited Sept. 12,2008).
214. Id. These states universally restrict television coverage when witnesses object to the cameras. Id.
215. Court Webcasting, A Project Weblog of the WV Supreme Court Clerk, http://radio .weblogs.com/0103705/categories/courtWebcastmg (last visited Sept. 12,2008). The supreme courts that currently webcast their proceedings are: Alaska, Florida, Indiana, Massachusetts, Mississippi, Missouri, New Hampshire, New Jersey, North Dakota, Ohio, South Dakota, Vermont, Washington, West Virginia, and Wisconsin. Id.
216. Id.
217. See, e.g., Kropko, supra note 152.
218. See, e.g., id. (quoting Charles Ash, owner of Visual Resources Corp., the company that helped the Delaware Municipal Court set up its webcasts, as saying, "It's just starting to pick up Courts are behind in the technology in a lot of ways. They are coming along.").
219. See, e.g., Henry Schleiff, The Case/or TV,N.Y. TIMES, Sept. 3,2003, at Al 9, available at 2003 WLNR 566617; S.L. Alexander, A Reality Check on Court/Media Relations, 84 JUDICATURE 146 (2000); Philip S. Anderson, Time to Open the Electronic Eye, A.B.A. J., June 1999, at 8; Millie Aulbur & Jack Wax, Making Sense of Trials in the News, CITIZENSHIP EDUCATOR, Jan. 1998, at 1; Christo Lassiter, Cameras and the Infusion of Political Bias into the Courtroom, 5 INT'L J.L. & INFO. TECH. 28 (1997); Francis Kahn Zemans, Public Access: The Ultimate Guardian of Fairness in our Justice System, 79 JUDICATURE 173 (1996); Floyd Abrams & Wendy Kaminer, Cameras in the Courtroom: Should Judges Permit High-Profile Trials To Be Televised?-Yes: Cameras Reflect the Process, for Better or Worse, A.B.A. J., Sept. 1995, at 36; Christo Lassiter, Put the Lens Cap Back on Cameras in the Courtroom: A Fair Trial is at Stake, 67 N.Y. ST. B.J. 6 (1995).
220. See Cameras in the Courtroom: Hearing on S. 829 Before the S. Comm. on the Judiciary, 109th Cong. 40-65 (2005) (statement of Judge Diarmuid O'Scannlain on behalf of the Judicial Conference of the United States), available at http://www.uscourts.gov/testimony/exhibit4CameraTest05.pdf (pointing out the "obvious examples" of the 1935 Lindbergh kidnapping trial, the 1954 Dr. Sam Sheppard murder trial, the Menendez brothers' trial and, most notably, the O.J. Simpson murder trial); Gina Holland, Supreme Court Justices Conflicted on Benefits of Courtroom Cameras, ASSOCIATED PRESS, Nov. 11, 2005, ovailable at http://www.law.com/jsp/article.jsp?id=l 131640496602 (quoting Justice O'Connor's statement regarding the broadcast of the O.J. Simpson trial: "I thought it was pretty sad. I was very uncomfortable with it.").
221. Statement of Judge Diarmuid O'Scannlain, supra note 220, at 55.
222. Hope Viner Samborn, Plenty of Seats in Virtual Courtrooms: "Webcasts of Judicial Proceedings Gaining-and Educating-a Wide Audience, A.B.A. J., Feb. 2000, at 68 ("[0]nline access makes it convenient for some people who might have difficulty getting to the courthouse in person.").
223. See, e.g., Wright, supra note 198 (outlining an expansion of the Massachusetts's Supreme Court webcasting program "to make briefs submitted to the court available in an electronic format on the website so that viewers tuning in will be able to access the corresponding briefs while listening in on the argument").
224. See, e.g., ConnectLive Webcast Services, http://www.connectlive. com/index-l.html (last visited Sept. 12, 2008) ("We ... offer innovative and useful real-time audience interaction capabilities with the broadcasts."); see also Orna Rabinovich-Einy, Balancing the Scales: The Ford-Firestone Case, the Internet, and the Future Dispute Resolution Landscape, 6 YALE J.L. & TECH. 1 (2003-2004) (arguing for the creation of "virtual courtrooms").
225. MEGHAN DUNN & REBECCA NORWICK, FEDERAL JUDICIAL CENTER, REPORT OF A SURVEY OF VIDEOCONFERENCING IN THE COURTS OF APPEALS, at 1 (2006), available at http://www.gc.gov/public/ pdf.nsf/lookup/vidconca.pdf/ $file/vidconca.pdf; see also Henry Weinstein, Court's Use of Video is Facing Review, L.A. TIMES, Jan. 16,2007, at B-1, available at 2007 WLNR 847099 ("Videoconferencing for oral arguments was introduced in several of the nation's federal circuits between 1998 and 2001.").
226. Weinstein, supra note 225 (quoting New York University law professor Stephen Gillers).
227. DUNN & NORWICK, supra note 225, at 1.
228. See, e.g., Weinstein, supra note 225 (discussing the decision of a Ninth Circuit panel to deny a television station the opportunity to film a proceeding that occurred via video conferencing, "apparently deciding that it would be unwise for the general public to watch the proceedings on television").
229. Companies that provide webcasting services find great strength in their ability to disseminate webcasts to as broad or narrow an audience as desired. See, e.g.; ConnectLive Webcast Services, supra note 224 ("Our video/audio transmission services can be designed for wide delivery to the general public, or specifically limited to intranet environments and private corporate or government networks."). ConnectLive Communications provides live webcasting services as well as audio and video archival services to both corporate and government clients, including the U.S. Department of Defense, the U.S. Department of Education, the U.S. Department of Treasury, and the U.S. Census Bureau. See id.
230. In re Enron Corp. Sec. Litig., No. 4:01-CV-03624 (S.D. Tex. June 6, 2002) (order regarding service of papers and notice of hearings via independent website).
231. Id.
232. Id.
233. See Missouri Supreme Court Website, http://supremecourt. missourinet.com (last visited Sept. 12,2008).
234. Christopher R. Leslie, The Significance of Silence: Collective Action Problems and Class Action Settlements, 59 FLA. L. REV. 71, 126 (2007).
235. Id.
236. Id. at 127.
237. Professor Leslie focuses primarily on the disincentives of class members to object to inadequate proposed settlements. Id. at 77-84. He thus encourages courts to "require counsel to create a website for each class action... [that] should have a bulletin board where class members can communicate with each other and air their concerns." Id. at 128. He also suggests that "judges themselves should accept comments and objections to proposed class settlement through [i]ntemet-based communications, such as a web page dedicated to a particular class action." Id.
238. Id. at 128.
239. See Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980) ("Where it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device."); PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION § 3.04 (Preliminary Draft No. 5, 2008).
240. See Esler v. Northrop Corp., 86 F.R.D. 20, 34 (W.D. Mo. 1979); PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION § 3.04 (Preliminary Draft No. 5,2008).
241. Cf. Leslie, supra note 234, at 128-29 (highlighting the positive effects of cost-effective coordination in collective action situations).
242. See supra Part I.B.2.
243. See Leslie, supra note 234.
244. For example, if many absent class members (whose voices are heard only through the internet) are opposed to a particular settlement proposal or to dismissing claims against a particular defendant, class counsel can factor these opinions into the decisions whether to reject the proposed settlement or to dismiss a particular defendant. This marks a stark contrast to the historical practice of leaving absent class members on the sidelines until the fairness hearing or other late stage in the litigation.
245. 245. Cf. Leslie, supra note 234, at 129 (discussing the court's ability to discern the attitude of the class regarding a proposed settlement).
246. See, e.g., Smith v. Heartland Auto. Servs., 404 F. Supp. 2d 1144, 1150-54 (D. Minn. 2005) (decertifying a conditional class in a collective action after discovery revealed that the members of the class were not similarly situated nor uniform).
247. See, e.g., Cokely v. N.Y. Convention Ctr. Operating Corp., No. 00-Civ-437, 2004 U.S. Dist. LEXIS 9264 (S.D.N.Y. May 20,2004) (granting plaintiffs' renewed motion for certification after plaintiffs acquired sufficient evidence to demonstrate the commonality and typicality requirements of Rule 23(a)).
248. SeeMassengill v.Bd.ofEduc.,Antioch Cmty. High Sch.,88 F.R.D. 181,185(N.D.I11.1980) (quoting Folding Cartons, Inc. v. Am. Can Co., 79 F.R.D. 698, 701 (N.D. 111. 1978)); accord Levitan v. McCoy, No. 00 C 5096, 2003 U.S. Dist. LEXIS 5078, at *14 (N.D. 111. Mar. 28,2003) (discussing need for "stringent" enforcement of adequacy requirement); Hall v. Nat'l Recovery Sys., Inc., 96-132-CrV-T-17(c), 1996 U.S. Dist. LEXIS 11992, at *11 (M.D. Fla. Aug. 9, 1996) (class representative is a "fiduciary" and "serves as a guardian of the interests of the class"); In re Lloyd's Am. Trust Fund Litig., No. 96-Civ-1262, 1998 U.S. Dist. LEXIS 1199, at *32 (S.D.N.Y. Feb. 4, 1998) (noting that class representative must be capable of making "reasonable decisions at critical stages of the litigation").
249. Robert H. Klonoff, The Judiciary's Flawed Application of Rule 23 's "Adequacy of Representation"Requirement, 2004 MICH. ST. L. REV. 671, 695.
250. Id. at 697.
251. In situations where absent class members are expected to present their individual objections or to present individualized proof, such as during a fairness hearing on a proposed settlement, courts should accept such submissions directly through the internet. Like direct submission of settlement claim forms, opt-outs, and opt-ins, the ease and cost-efficiency of such direct internet submissions increases the likelihood of absent class member participation. See Leslie, supra note 234, at 128-29; supra Part II.A.2.
252. See Kline v. First W. Gov't Sec, No. 83-1076, 1996 U.S. Dist. LEXIS 3329, at *4 (E.D. Pa. Mar. 11, 1996) ("Upon a survey of cases, it is safe to state that discovery of absent class members is disfavored."); see also KLONOFF ET AL., supra note 8, at 383-90; MANUAL FOR COMPLEX LITIGATION (FOURTH) §21.41 (2004).
253. See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.141 (2004).
254. See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001) ("Before deciding whether to allow a case to proceed as a class action, therefore, a judge should make whatever factual and legal inquiries are necessary under Rule 23."); see also MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.142 ("Precertification discovery may be needed to assist the judge in distinguishing the individual from the common elements of the claims, issues, and defenses, and in deciding the extent to which the need for individual proof outweighs the economy of receiving common proof.").
255. See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.41.
256. See id.
257. 185 F.R.D. 313 (D. Colo. 1999).
258. Mat 315.
259. Id. at 319-20 (noting that the cost to the plaintiff from providing notice and the questionnaire would be "burdensome").
260. See supra Part LA.