Rule 23(f) and "Hydraulic" Pressure to Settle
Federal courts of appeals have grown fond of citing pressure to settle as a reason to grant discretionary review of rulings on class certification motions. But they don't cite any evidence to support the notion that certifying a class forces defendants to debauch themselves. They in effect take judicial notice of the "hydraulic" effect on defendants.
Rule 201 of the Federal Rules of Evidence allows courts to "notice" a fact, but it "must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
Blawgletter's experience with class actions leads us to believe that class certification may increase the class plaintiffs' leverage in settlement negotiations but hardly compels defendants to settle and certainly not for more than the case justifies. If a rise or drop in negotiating leverage justifies review of a certification order, we have a hard time understanding how courts can refuse to take a look at any such order.
Take judicial notice of that, please.
Barry Barnett
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