Editing Class action (section)

====Modern developments====
A major revision of the FRCP in 1966 radically transformed Rule 23, made the opt-out class action the standard option, and gave birth to the modern class action. Entire treatises have been written since to summarize the huge mass of [[case law]] that sprang up from the 1966 revision of Rule 23.<ref name=Yeazell/>{{rp|229}} Just as medieval group litigation bound all members of the group regardless of whether they all actually appeared in court, the modern class action binds ''all'' members of the class, except for those who choose to opt out (if the rules permit them to do so).  [[Arthur Taylor von Mehren]]  characterized the American opt-out class action as the "most extreme development of collective civil litigation in the modern legal world".<ref name="Von_Mehren_Page_182">{{cite book |last1=von Mehren |first1=Arthur T. |last2=Murray |first2=Peter L. |author1-link=Arthur Taylor von Mehren |author2-link=Peter L. Murray |title=Law in the United States |date=2007 |publisher=Cambridge University Press |location=Cambridge |isbn=9781139462198 |page=182 |edition=2nd |url=https://books.google.com/books?id=9tpJlKdqVTsC&pg=PA182}}</ref>

The Advisory Committee that drafted the new Rule 23 in the mid-1960s was influenced by two major developments. First was the suggestion of Harry Kalven Jr. and Maurice Rosenfield in 1941 that class-action litigation by individual shareholders on behalf of all shareholders of a company could effectively supplement direct government regulation of securities markets and other similar markets.<ref name=Yeazell/>{{rp|232}} The second development was the rise of the [[civil rights movement]], [[environmentalism]] and [[consumerism]].<ref name=Yeazell/>{{rp|240–244}} The groups behind these movements, as well as many others in the 1960s, 1970s and 1980s, all turned to class actions as a means for achieving their goals. For example, a 1978 [[environmental law]] treatise reprinted the ''entire'' text of Rule 23 and mentioned "class actions" 14 times in its index.<ref name=Yeazell/>{{rp|244–245}}

Businesses targeted by class actions for inflicting massive aggregate harm have sought ways to avoid class actions altogether. In the 1990s, the US Supreme Court issued several decisions that strengthened the "federal policy favoring [[arbitration]]".<ref name=Giles2005>Giles M. (2005). [http://michiganlawreview.org/archive/104/3/Gilles.pdf Opting Out of Liability] {{webarchive|url=https://web.archive.org/web/20090402175219/http://www.michiganlawreview.org/archive/104/3/Gilles.pdf |archive-url=https://web.archive.org/web/20071004192018/http://www.michiganlawreview.org/archive/104/3/Gilles.pdf |archive-date=2007-10-04 |url-status=live |date=2009-04-02 }}. ''Michigan Law Review''.</ref> In response, lawyers have added provisions to consumer [[standard form contract|contracts of adhesion]] called "collective action waivers", which prohibit those signing the contracts from bringing class-action suits. In 2011, the [[US Supreme Court]] ruled in a 5–4 decision in ''[[AT&T Mobility v. Concepcion]]'' that the Federal Arbitration Act of 1925 preempts state laws that prohibit contracts from disallowing class-action lawsuits, which will make it more difficult for consumers to file class-action lawsuits. The dissent pointed to a saving clause in the federal act which allowed states to determine how a contract or its clauses may be revoked.<ref>Foreman C. [https://arstechnica.com/tech-policy/news/2011/04/scotus-rules-att-can-force-arbitration-block-class-action-suits.ars "Supreme Court: AT&T can force arbitration, block class-action suits"]. ''Ars Technica''.</ref>

In two major 21st-century cases, the Supreme Court ruled 5–4 against certification of class actions due to differences in each individual members' circumstances: first in ''[[Wal-Mart v. Dukes]]'' (2011) and later in ''[[Comcast Corp. v. Behrend]]'' (2013).<ref>{{cite news |last1=Stempel |first1=Jonathan |title=Supreme Court rules for Comcast in class action |url=https://www.reuters.com/article/us-usa-court-comcast-classaction-idUSBRE92Q0MS20130327 |access-date=21 January 2024 |work=[[Reuters]] |date=27 March 2013 |archive-url=https://web.archive.org/web/20160602201019/https://www.reuters.com/article/us-usa-court-comcast-classaction-idUSBRE92Q0MS20130327 |archive-date=2 June 2016 |url-access=registration}}</ref>

Companies may insert the phrase "may elect to resolve any claim by individual arbitration" into their consumer and employment contracts to use arbitration and prevent class-action lawsuits.<ref>{{cite news |title=Arbitration Everywhere, Stacking the Deck of Justice |url=https://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html |url-access=subscription |archive-url=https://web.archive.org/web/20151115004534/https://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html |archive-date=2015-11-15 |newspaper=The New York Times |date = 2015-10-31 |access-date=2015-10-31 |issn=0362-4331 |first1=Jessica|last1=Silver-greenberg |author1-link=Jessica Silver-Greenberg |first2=Robert |last2=Gebeloff}}</ref>

Rejecting arguments that they violated employees' rights to collective bargaining, and that modestly-valued consumer claims would be more efficiently litigated within the parameters of one lawsuit, the U.S. Supreme Court, in ''[[Epic Systems Corp. v. Lewis]]'' (2018), enabled the use of [[Class action waiver|class action waivers]]. Citing its deference to freedom to contract principles, the Epic Systems opinion opened the door dramatically to the use of these waivers as a condition of employment, consumer purchases and the like. Some commentators in opposition to the ruling see it as a "death knell" to many employment and consumer class actions, and have increasingly pushed for legislation to circumvent it in hopes of reviving otherwise-underrepresented parties' ability to litigate on a group basis. Supporters (mostly pro-business) of the high court's ruling argue its holding is consistent with private contract principles. Many of those supporters had long-since argued that class action procedures were generally inconsistent with due process mandates and unnecessarily promoted litigation of otherwise small claims—thus heralding the ruling's anti-litigation effect.

In 2017, the US Supreme Court issued its opinion in Bristol-Meyer Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), holding that over five hundred plaintiffs from other states cannot bring a consolidated mass action against the pharmaceutical giant in the State of California.  This opinion may arguably render nationwide mass action and class action impossible in any single state besides the defendant's home state.

In 2020, the 11th Circuit Court of Appeals found incentive awards are impermissible. Incentive awards are a relatively modest payment made to class representatives as part of a class settlement. The ruling was a response to an objector who claimed Rule 23 required that the fee petition be filed ''before'' the time frame for class member objections to be filed; and payments to the class representative violates doctrine from two US Supreme Court cases from the 1800s.<ref>{{cite web |title=Eleventh Circuit Court of Appeals Holds that Incentive Payments Commonly Awarded to Class Representatives are Impermissible in a Classwide Settlement |url=https://tcpaworld.com/2020/09/18/no-incentive-eleventh-circuit-court-of-appeals-holds-that-incentive-payments-commonly-awarded-to-class-representatives-are-impermissible-in-a-classwide-settlement |first=Eric J. |last=Troutman |publisher=TCPA World |date=September 18, 2020 |access-date=September 19, 2020}}</ref><ref>{{cite court |litigants=Johnson v. NPAS Solutions |court=[[11th Cir.]] |date=September 17, 2020 |access-date=September 19, 2020}}</ref>