Complex Litigation: A New Hybrid

Abstract

Commentary and analysis of the merging doctrine of the “hybrid” class action under Federal Rule of Civil Procedure 23. The article discusses the concept of the original hybrid class action in the 1938 class action rule, and its demise in the amended 1966 class action rule. After the 1966 amendment to the rule, a new form of hybrid class action is being pursued under Rule 23(b)(2), the injunctive class, which also seeks compensatory damages – usually reserved for relief under Rule 23(b)(3). Some federal courts have endorsed the possibility of this form of hybrid class action, but require that notice be served to class members. Other courts have not only ordered notice, but also mandated that class members in such hybrid class actions be afforded the right to opt-out. The article explores the implications and significance of this new form of hybrid class action, and the ways in which it blurs the distinctions among the Rule 23(b) class categories. The article discusses the approval of a hybrid settlement class approved in the Southern District of Ohio in In re Cincinnati Radiation Litigation (1999).