Fourth Circuit Upholds District Court’s Decision Not to Provide Pre-Certification Notice to Putative Class Members

In an “opt out” class action, sending notice to class members following class certification is not only routine, but required by due process. But does a district court have the right to order notice prior to a decision on class certification? In Gardener v. GMAC, Inc., No. 14-208 (4th Cir. Aug. 6, 2015), both the district court and the Fourth Circuit “assumed for the sake of argument” that Rule 23(d)(1)(B) provides the trial court with that authority. But each declined to accept the plaintiffs’ argument that the facts warranted such notice. Observing that pre-certification dismissal does not amount to res judicata of the absent class members’ claims, Judge Diaz concluded that the district court’s decision not to order notice before it granted summary judgment fell well within the court’s discretionary powers. The panel’s decisions suggests that unnamed class members’ interests must be “compelling” in order to justify pre-trial notice.