Resolving the Class Action Paradox

A paradox exists at the core of class actions. They were designed to perform a valuable function, protecting and compensating individuals who would not otherwise have legal recourse, yet in practice they have effectively silenced and disenfranchised class members, leaving them unaware and uninformed of litigation commenced on their behalf, the nature of their potential claims, and the damages they may seek. In this Article, we take three significant steps toward resolving the class action paradox. First, we unpack recent scholarship that led to the introduction of “representational notice,” a mechanism that leverages advances in technology and the social sciences to gather and parse class members’ preferences regarding class counsel and litigation outcomes at the outset of the litigation. Second, the Article provides inside details on how, a few months after representational notice was introduced to the legal academy, it was effectively implemented in the 23andMe data breach litigation. For a class of an estimated seven million persons, class action attorneys teamed up with legal scholars to afford prospective class members a voice. While the 23andMe litigation represents unprecedented progress—for the first time in large-scale commercial litigation, class members could share their preferences—the journey toward fully actualizing class member participation is far from complete. This brings us to the final step taken in this Article. We analyze representational notice’s debut in practice and identify challenges: how can a class speak fairly (without disregarding subsets of class members), efficiently (without hindering the efficiency gains of current class action procedures), and accurately (yielding information that truly represents what it purports to represent, as well as being digestible and actionable)? We then provide an essential blueprint for representational notice surveys across four key areas: administration, design, dissemination, and analysis, including the specific substance that representational notice should contain. By adhering to this blueprint, the class action paradox can be resolved, the momentum toward robust class member representation sustained, and a more inclusive, responsive, and just class action system fostered.