Friday, May 20, 2005

Highlights From Today's Reply Brief (Part 1)

Regarding our argument that requiring personal appearance by a class member in order to object is an impermissible burden on due process:

The question of whether the appearance to object requirement violates due process appears to be essentially a matter of first impression.... When the issue is explored more thoroughly it will be held that the requirement is an impermissible burden on a class members' due process right to object....

Appearance is a substantial burden, and is a great burden when compared to the benefit class members receive under this settlement. Hiring an attorney in the Southern District would cost thousands of dollars. Traveling from most parts of the United States to appear would cost at least hundreds of dollars in travel expenses, not to mention one or more days of the class member's time, possibly requiring absence from employment. In practical terms this burden will eliminate the ability of the class member to object, even though their property rights are being disposed of by the release of the settlement....

The basic premise of class actions is to afford relief to people with claims so small they could not otherwise obtain the benefit of representation.... To require the expenditure of many times the settlement compensation to object is contrary to the purpose of class actions. It is also contrary to the clear statement of Rule 23 that any class member can object....

Obviously, this burden falls hardest on those class members with Category C claims. They are the ones who are specifically identified for prejudicial treatment by the settlement, and who have the most modest compensation.

The full brief can be viewed at Comments can be posted here or emailed to me at


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