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Publication Date

2010

Abstract

When certifying a class action lawsuit, Federal Rule 23(b)(3) requires a federal district court judge to determine that a class action lawsuit is superior to "other available methods "of handling the dispute. A disagreement has emerged among the district courts regarding what constitutes an available method under the Rule. Several courts have found that private refund programs or settlement agreements instituted by a defendant can count as available methods under the superiority requirement, while other courts have found that they do not. This Note evaluates the question of whether private refund programs or settlement agreements should be compared to class action lawsuits under the superiority requirement in light of textual, efficiency, and fairness arguments for and against consideration of out-of-court alternatives. This Note also compares private refund programs with other out-of-court alternatives-primarily administrative proceedings-and argues that there are compelling reasons for treating the methods differently. Although efficiency concerns support a reading of the Rule that allows a comparison between private refund programs or settlement agreements and class action lawsuits, this Note nevertheless argues that the text of Rule 23 does not support consideration of such programs, and that the fairness goals underlying the Rule also counsel a district court against the comparison.

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