The overwhelming majority of class actions are plaintiff class actions in which the named plaintiff seeks to represent a class of unnamed plaintiffs whose interests are alligned with those of the named plaintiff against one or more defendants whose challenged actions or inactions present one or more common issues vis-à-vis class members. A "mandatory" class action is one in which class members have no "opt-out" right and therefore cannot voluntarily exclude themselves from the class as defined in the court's class certification order. However, a rarely used feature of Rule 23 of the Federal Rules of Civil Procedure allows in appropriate cases for certification of a mandatory defendant class action, comprised of a named defendant which is compelled, almost invariably against its wishes, to represent a class of unnamed defendants which share one or more common issue between them that is appropriate for joint adjudication . Mandatory defendant class actions are a potent tool to efficiently resolve common issues of patent ownership, validity, enforceability, and related claim construction questions in patent infringement cases involving multiple defendants.Federal Rules of Civil Procedure 23 Provides For The Certification Of Mandatory Defendant "Issues Classes" In Appropriate Patent Cases
The drafters of modern Rule 23 of the Federal Rules of Civil Procedure had several primary objectives. They intended that the Rule be a vehicle enabling people with small claims to achieve relief even though the modest size of their claims make them economically not viable as individual claims. Another primary purpose of Rule 23 is to "achieve economies of time, effort, and expense and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." See 1966 Advisory Committee Note to Fed. R. Civ. Proc. 23(b)(3).
Federal Rule of Civil Procedure 23(a) establishes four prerequisites to maintaining a class action: that the number of people or entities in the class be too numerous to permit their joinder; that members of the class share common questions of law or fact; that the "claims or defenses of the representative parties are typical of the claims or defenses of the class"; and that "the representative parties will fairly and adequately protect the interest of the class."
Numerosity exists when a proposed class is so numerous that joinder of all members is impracticable. Impractibility does not mean impossibility.1 A reasonable estimate of the number of purported members satisfies the numerosity requirement; a precise number is not required.2 Numerosity is presumed at the level of only 40 class members.3 Indeed, the Dale Electronics case certified a patent defendant class comprised of only 13 defendants. Dale Elecs., Inc. v. R.C.L. Elecs., Inc., 53 F.R.D. 531, 534 (D.N.H. 1971).
The test for typicality under Rule 23(a)(3) also “is a permissive standard.” Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159 (C.D. Cal. 2002). The basic inquiry is whether the action is based on claims or defenses that are not unique to the class representatives. Weinberger v. Thornton, 114 F.R.D. 599, 603 (S.D. Cal. 1986) ("'Typicality refers to the nature of the claim or defense of the class representative, and not to the specific facts from which it arose or the relief sought.").
Issues of patent validity and invalidity, patent ownership and claim construction (among other issues) are standard in many patent infringement actions. Such cases often are based exclusively upon plaintiff-specific facts and legal principles that are identical for all defendant class members and therefore apply universally class-wide. If successful, the named defendants’ claims and defenses with respect to such common issues will inure to the benefit of absent class members. Blonder-Tongue Lab., Inc. v. University of Illinois Found., 402 U.S. 313 (1971) (a patent found invalid is invalid to all). Typicality should be found to exist in such cases. Rosario v .Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (typicality requirement met if claims of class representative arise from same events and practices as claims of absent class members and are based on same legal theories).
Rule 23(a)’s final prerequisite -- adequate representation -- "depends on the qualifications of counsel for the representatives, an absence of antagonism, a sharing of interests between representatives and absentees, and the unlikelihood that the suit is collusive.” Local Joint Exec. Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc. , 244 F.3d 1152, 1162 (9th Cir. 2001). To satisfy this requirement, the patent holder plaintiff should consider, if possible, naming a well-funded defendant which can afford to and has the incentive to retain a reputable law firm whose experience, resources and competence handling complex patent litigation ensures that the interests of absent class members will be protected by a vigorous defense. See Sullivan v. Chase Inv., 79 F.R.D. 246, 258 (N.D. Cal. 1978) (class counsel’s demonstrated capabilities as shown by pleadings and motions sufficient to establish adequacy of representation); United States Trust Co. of New York v. Alpert, 163 F.R.D. 4099, 422 (S.D.N.Y. 1995) (court can appoint class counsel under Rule 23(d)(1) “to assure that the litigation will be conducted with a minimum of confusion and expense”).
Any unwillingness on the part of the named defendants to represent the class is entitled to little weight in the certification analysis. See Research Corp. v. Pfister Associated Growers, Inc., 301 F. Supp. 497, 499 (N.D. Ill. 1969) ("This court weighs the defendants' protestations that they do not 'desire' to represent the entire class, but this is hardly enough to overcome the overwhelming evidence of their ability and intention to challenge the plaintiff's assertions of validity and infringement.”); Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 285 F. Supp. 714, 721 (N.D. Ill. 1968) (“The interests of the defendants . . . in the outcome of the controversy is great” and “defendants are represented by able and determined counsel.”).
Once the requirements of Rule 23(a) are satisfied, the plaintiff patent holder must demonstrate compliance with one of the three subdivisions found in subdivision (b). The different categories of class actions provided for in subdivision (b) of Rule 23 -- (b)(1)(A), (b-(1)(B), (b)(2), and (b)(3) -- with their different requirements, represent the striking of a balance between the desirability of class-wide adjudication and the interests of class members to pursue their claims separately or not at all. See Amschem Prods., Inc. v. Winsdsor, 521 U.S. 591 (1997); United States Parole Comm'n v. Geraghty, 445 U.S. 388, 402-03 (1980). The different type of class actions are categorized according to the different objectives of class treatment envisioned by the Rule's drafters, or the nature or effect of the relief being sought.
In general, Rule 23(b)(1) permits the use of the class action device when necessary to prevent the possible adverse effects -- on either the parties opposing the class or on absent class members -- that might result if separate actions were brought and a risk of inconsistent results created. Structurally, that provision is divided into two clauses ((b)(1)(A) and (b)(1)(B))) that describe the risks of prejudice that the draftsmen of the Rule sought to avoid by allowing resort to the class action. A Rule 23(b)(1) class action applies when the defendant or plaintiff is obligated to treat class members alike, when class members are asserting claims against a common fund in which joint or common rights or obligations demand unitary treatment, or when there is a limited fund that is insufficient to satisfy all of the claims. See Advisory Committee Notes to Amendments to Rules of Civil Procedure. 39 F.R.D. 69, 100-03 (1966).
A Rule 23(b)(2) class was intended to focus on cases in which broad, class-wide injunctive or declaratory relief is necessary. See id.; see also Holmes v. Continental Can Co., 706 F.2d 1144, 1155 n.8 (11th Cir. 1983).
Finally, a Rule 23(b)(3) class action -- by far the most common one -- was intended to embrace other cases in which a class action would be "convenient and desirable," including those involving complex litigation for money damages. See Amchem, 521 US. at 615; see also Penson v. Terminal Transp. Co., 634 F.2d 989, 993 (5th Cir. 1981) (citing the Advisory Committee Notes to Federal Rule 23).
The drafters of Rule 23 deemed it unnecessary, however, to provide subdivision (b)(1) and (b)(2) class members with a universal right to notice or to opt out of the class, which are procedural safeguards required in Rule 23(b)(3) class actions primarily seeking monetary recoveries. See Fed. R. Civ. Proc. 23(c)(2). This is so because the different presumptions with respect to the homogeneity and cohesiveness of interests among members of (b)(1), (b)(2), and (b)(3) classes support the different procedural safeguards provided for potential classes under each of the three subsections. See Holmes, 706 F.2d at 1155-56. In cases seeking ordinary monetary remedies, outside of common fund or limited fund cases, the class relief sought is complicated by what often are the varying characteristics of the individual claims. See id. Rule 23(b)(1) and (b)(2) cases, on the other hand, typically involve relatively homogeneous and cohesive groups in which a unitary result may not only be preferable, but necessary, given the group nature of the harm inflicted and the interrelated nature of the relief sought.
For these reasons, “[c]ertification under either (b)(1) or (b)(2) constitutes a mandatory class. That is, the class members may not opt out of the action and "pursue separate litigation that might prejudice other class members or the defendant." Bunnion v. CONRAIL, 1998 U.S. Dist. LEXIS 7727 (E.D. Pa. 1998) (quoting 5 James Wm. Moore, Moore's Federal Practice § 23.40 (3d ed. 1998)). Many courts have held that mandatory classes under Rule 23(b)(1)(A), (b)(1)(B) and (b)(2) fully comport with due process. See, e.g., Dosier v. Miami Valley Broadcasting Corp., 656 F.2d 1295, 1299 (9th Cir. 1981) ((b)(2) actions); Laskey v. United Auto. Workers, 638 F.2d 954, 957 (6th Cir. 1981) ((b)(2) actions); Robertson v. National Basket ball Ass'n, 556 F.2d 682, 685-86 (2d Cir. 1977) ((b)(1)(B) actions).
In Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), the Court considered the due process requirements necessary to bind an absent plaintiff in a Rule 23(b)(3) state court money damages class action. Shutts chose not to insist upon "minimum contacts" as the touchstone of due process for jurisdiction over absent plaintiffs in a state court class action because the class action structure provides adequate procedural due process, as competent class counsel (as approved and appointed by the court) represent the class, representative plaintiffs (as approved and appointed by the court) are present with an incentive to vigorously pursue class claims identical or substantively similar to their own, the trial judge also must approve class certification as well as any settlement or dismissal of the action, and absent class members are rarely subject to discovery and are almost never liable for attorneys' fees, costs of suit, or any judgment. Shutts, 472 U.S. at 808-10.
The plaintiff class in Shutts was certified under the Kansas equivalent of Rule 23(b)(3), not Rule 23(b)(1) or (b)(2), and the Supreme Court expressly limited its opt out requirement to "those class actions which seek to bind known plaintiffs concerning claims wholly or predominantly for money damages." Shutts at 811 n.3. The Court intimated "no view concerning other types of class actions, such as those seeking equitable relief." Id. As noted previously, Rule 23 similarly fails to provide for any mandatory opt out right other than in Rule 23(b)(3) cases. Fed. Civ. Proc. Code 23(c)(2). Accordingly, Shutts cannot properly be read as establishing opt out rights in actions maintained under Federal Rule 23(b)(1) or (b)(2). The preferred reading of Shutts is, rather, that the opt out right does not apply to classes composed of people with the same interest in a particular patent, or that have the same defense with respect to a particular patent, or that are alleged to violate the same claim or claims of a particular patent. In the post-Shutts decision in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), while the Court rejected a mandatory non-opt Rule 23(b)(1)(B) class based upon a litigation-generated limited fund that would have bound al potential asbestos claimants in a single action, it made clear that mandatory classes are still appropriate in proper cases. 525 U.S. at 864-65.
- The Issues Of Patent Ownership, Validity, Proper Claim Construction And Enforceability May Be Appropriate For Mandatory Adjudication In An "Issues Class" Under Fed. R. Civ. Proc. 23(c)(4)(A)
A district court is empowered to certify a mandatory defendant class with respect to particular issues only, even if subsequent actions would be required regarding issues of infringement and damages. See Fed. R. Civ. Proc. 23(c)(4)(A) ("When appropriate, an action may be brought or maintained as a class action with respect to particular issues."). Rule 23(c)(4)(A)’s plain language, its structural relationship with Rule 23(a), and the Committee Notes that accompany it not only permit trial judges to sever issues for class certification purposes and for trial, they encourage trial judges to employ those procedures when doing so would facilitate Rule 23's purpose of "achieving economies of time, effort, and expense, and promoting uniformity of decision as to persons similarly situated," as well as Rule 1's overarching goal of ensuring a fair and efficient remedy for every wrong. See Fed. R. Civ. P. 23(c)(4)(A)'s advisory committee notes (1966) ("This provision recognizes that an action may be maintained as a class action as to particular issues only."); see also In re Joint E. & S. Asbestos Litig., 878 F. Supp. 473, 489-90 (E. & S.D.N.Y. 1995)
(bifurcating liability and damages portions of litigation pursuant to Rule 23(c)(4)(A)); In re Tetracycline Cases, 107 F.R.D. 719, 735 (W.D. Mo. 1985)
"[Rule 23(c)(4)(A)] is intended to advance judicial economy by permitting adjudication of any issues common to the class even though the entire litigation may not satisfy the requirements of Rule 23." Emig v. Am. Tobacco Co., 184 F.R.D. 379, 395 (D. Kan. 1998)
(citing 7B Wright, et al., Federal Practice and Procedure § 1790
). The relevant inquiry in this regard is whether resolution of particular common issues would materially advance the disposition of the litigation as a whole. If the resolution of even one common issue would simplify subsequent individual proceedings, then certification of that issue for class treatment under Rule 23(c)(4)(A) may be appropriate. In re A.H. Robins Co., Inc., 880 F.2d 709, 740 (4th Cir. 1989)
(“[I]n order to promote the use of the class device and to reduce the range of disputed issues, courts should take full advantage of the provision in subsection (c)(4) permitting class treatment of separate issues in the case”), cert. denied, 493 U.S. 959, 110 S. Ct. 377, 107 L. Ed. 2d 362 (1989).
In many cases, a class-wide resolution of the common issues of patent ownership, validity, enforceability and claim construction would materially advance the disposition of this complex consolidated patent litigation. In subsequent actions for infringement and damages, those key issues would not need to be adjudicated again. The Rule 23(a)(2) commonality requirement is not difficult to meet. See Thomas v. SmithKline Beecham Corp., 201 F.R.D. 386, 392 (E.D. Pa. 2001) (“Because Rule 23(a)(2) requires only a single issue common to all members of the class, the requirement is easily met, and commonality is not defeated by a showing that ‘individual facts and circumstances’ will have to be resolved.”) (citation omitted). Because Rule 23(a)(2) is written in the disjunctive, a single common question of either fact or law should satisfy the commonality requirement. Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 914 (9th Cir. 1964). Accordingly, a plaintiff patent holder may wish to request that the issues of patent infringement and damages be tried separately under Fed. R. Civ. Proc. 42(b) after the mandatory defendant Issues Class is certified and the class issues are adjudicated. See Methode Electronics, 285 F. Supp. at 720 (bifurcating infringement issues).
The issue of patent ownership, when disputed, is a common question that may be appropriate for class-wide treatment in a mandatory Issues Class. The patent holder has the burden of proving that it is the owner of the patents it asserts. Kunkel v. Topmaster Int'l, Inc., 906 F.2d 693, 695 (Fed. Cir. 1990). Whether a patent holder owns the patents it asserts in a particular patent infringement action typically will involve facts unique only to the patent holder; the issues are the same regardless of the identities of defendants and absent Class members and, accordingly, may be appropriate for class-wide resolution.
The facts relevant to patent validity also are the same regardless of the identities of Defendants or absent Class members, and include the properly construed patent claims, the patent specification, and the relevant prior art, which by definition is publicly available to any defendant, named or not. Any accused infringer may challenge the validity of any issued patent by showing with clear and convincing evidence that the patent fails to meet any one of the statutory requirements for patentability, such as showing that the claimed invention is anticipated by, or obvious in view of, prior art, or that the patent specification is insufficient. Patent validity therefore also is an issue which may be common to and typical of accused infringers who are members of an Issues Class.
Finally, the issue of patent enforceability also may present common questions appropriate for mandatory adjudication in an Issues Class. An accused infringer may allege by way of affirmative defense or counterclaim, for example, that the patents are unenforceable due to the inequitable conduct of the inventors and their attorney while prosecuting the patents, that the patentees misrepresented the content of prior art references to the patent examiner, that the patentees provided too many references to the patent examiner, or that the patentees intentionally withheld relevant references from the patent examiner. The evidence necessary to prove patent enforceability or unenforceability under such circumstances would be the same regardless of the identity of the defendant. Under such circumstances, patent enforceability would present issues which are common to and typical of the named defendant and other unnamed members of the defendant class. See, e.g., Research Corp. v. Pfister Associated Growers, Inc., 301 F. Supp. 497, 499 (N.D. Ill. 1969) (“It is further true that since the defendant class is being charged with infringement, and the validity of the patent is already in issue, there is at least the one major common issue of validity.”); Technograph Printed Circuits, Ltd. v. Methode Elecs., Inc., 285 F. Supp. 714, 723 (N.D. Ill. 1968) (patent validity and enforceability are common issues); Dale Electronics, 53 F.R.D. at 536 (same); Standal's Patents, Ltd. v. Weyerhaeuser Company, 2 USPQ 2d (BNA) 1185 (D.Ore.1986) (same); Webcraft Technologies, Inc. v. Alden Press, Inc., 2 Fed. R. Serv. 3d 1396, 1403, 1985 U.S. Dist. LEXIS 16966, 228 U.S.P.Q. (BNA) at 184 (N.D. Ill. 1985) (same).
The issue of patent claim construction also often may be appropriate for mandatory class-wide resolution. In patent infringement actions, a district court must first construe the meaning of the claim terms of a patent before determining whether any claim of that patent is infringed by any defendant class member, or whether any claim of these patents is invalid. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) . Claim construction involves an examination by the district court of the patent claims and the intrinsic evidence (i.e., the patent specifications and file histories), and also extrinsic evidence in appropriate cases. See Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1216 (Fed. Cir. 1995). For purposes of a defendant Issues Class, the evidence necessary to construe the claims will be the same regardless of the identities of defendant class members: claims are not construed by reference to any accused methods or systems. See SRI Int'l v. Matsushita Elec. Corp., 775 F.2d 1107, 1118 (Fed. Cir. 1985). Patent claim construction therefore often may present common issues appropriate for a mandatory defendant Issues Class.
- A Plaintiff Patent Holder May Request That A Mandatory Defendant "Issues Class" Be Certified Under Rule 23(b)(1)(A) Or Rule 23(b)(1)(B).
In Blonder-Tongue Lab. Inc. v. University of Illinois Found., the Supreme Court held that when a patent is found invalid or unenforceable in one action, the patentee is collaterally estopped from claiming that the patent is valid or enforceable in another action, so long as the patentee had a full and fair opportunity to fully litigate the validity of its patent in the prior suit. 402 U.S. 313, 334 (1971). Following Blonder-Tongue, several patent infringement defendant class actions have been certified under Rule 23(b)(1)(A), on the ground that inconsistent or varying adjudications on validity and enforceability issues in individual actions might establish incompatible standards of conduct for the patentee and/or individual class members.
For example, in the Standal’s Patents case, a patent infringement action involving saw mill equipment, the court certified a defendant class under Rule 23(b)(1)(A) despite the argument that Blonder-Tongue meant that the absent defendants would not be harmed by an adverse ruling and could only benefit from separate adjudications in separate actions:
Suppose that Standal's brought an action against one infringer, i.e., the first class member, and its patent was found valid. Under Blonder-Tongue Standal's would be permitted to bring an action against the second infringer - the second class member. As long as the patent was found valid in each subsequent action, Standal's could bring an action against the next infringer. However, once the patent was found invalid, for example, in the tenth suit, Standal's would be precluded from seeking redress from any of the other 260 alleged infringers. If this action were not certified as a class action there would be a risk of "inconsistent or varying adjudication with respect to individual members of the class which would establish incompatible standards of conduct" for individual class members.
6 Fed. R. Serv. 3d at ___.
The Dale Electronics court reached the same conclusion based upon the same analysis, noting that actions (like this one) involving patent validity are particularly well suited for Rule 23(b)(1) defendant class treatment:
The prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class. Rule 23(b) (1) (A). While Blonder-Tongue makes an invalidity determination final and binding on the plaintiff, it does not meet the problem of a possibility of a validity finding by this court and an invalidity finding by another court. The alleged infringers could continue infringing until such time as the plaintiff brought suit against each of them and relitigated the question of validity.
53 F.R.D. at 537.
A Rule 23(b)(1)(B) defendant class also may be warranted. As previously noted, Rule 23(b)(1)(B) class treatment is appropriate if individual adjudications either would be dispositive of the interests of other class members or would substantially impair or impede the ability of absent class members to protect their interests. Certification of a defendant class under Rule 23(b)(1)(B) is appropriate in patent infringement actions because the typical expense and complexity of a patent infringement action may, as a practical matter, give patent rulings in one court significant persuasive value in other court, even in the absence of a published decision or any res judicata or collateral estoppel effect. As stated by the court in Research Corp.:
The difficulty of subject matter inherent in most patent cases, and most certainly this one, give selected adjudications of validity or invalidity more than the usual weight when a court is considering the adoption of another court’s opinion or reasoning by means of comity. This practical fact, added to the great expense of defending a patent suit of this type, would tend towards impairing or impeding the nonparty class members’ ability to protect their interests.
301 F. Supp. at 499-500. Other courts have reached the same conclusion. See, e.g., Technograph, 285 F. Supp. at 723(“Selected adjudications of the questions of invalidity, misuse and fraud on the United States Patent Office may be accorded great weight in industrial relations by comity between courts and may greatly impair and impede the ability of members of the class and any subclasses thereof who are not parties to this action to protect their interests. To the extent that such selected adjudications vary or are inconsistent the ability of those who are not parties to this action will be further impaired and impeded.”); Dale Elecs., 53 F.R.D. at 537 (“While another court is not required to give res judicata effect to the final determination of validity by this court, it is fair to say that the final decision in this case will receive careful consideration and be given some weight by another district court in determining the issue of validity.”).
- A Plaintiff Patent Holder May Also Wish To Request Certification Of A Mandatory Defendant "Issues Class" Under Rule 23(b)(2).
Certification of a class is proper under Rule 23(b)(2) where the party opposing the class has acted on grounds generally applicable to the class, thereby making appropriate declaratory or injunctive relief with respect to the class. When allegedly infringing defendants assert a reverse declaratory relief action that requests a declaration that that the plaintiff patent holder's patents are invalid and unenforceable, that the patent holder does not own the patent or otherwise have the right to enforce it, or requests the issuance of a permanent injunction prohibiting the plaintiff patent holder from claiming infringement or requesting licensing fees from defendants and other class members, a mandatory defendant class with respect to the common Class Issues should comply with both the technical letter and spirit of Rule 23(b)(2).
The Methode Electronics court certified a defendant patent infringement class under Rule 23(b)(2) under similar circumstances:
[B]y obtaining patents, notifying some alleged infringers of the patents, and threatening some of them with infringement suits unless they take licenses, and by bringing civil actions against some of them, the plaintiffs herein have acted on grounds generally applicable to the class and any subclasses thereof. Further plaintiffs' claims for relief against each defendant contain prayers for injunctions. Each defendant has amended its counterclaims to pray for declaratory and injunctive relief. These prayers are typical of the requests for relief usually made by patentees and alleged infringers in patent infringement actions. By these counter-claims final injunctive relief and declaratory relief with respect to the class as a whole has been made appropriate.
285 F. Supp. at 723.
When, as in Methode Electronics, a patent holder allegedly has acted on grounds generally applicable to members of the defendant class, and, in particular, when the defendant accused infringer has raised one or more common issues by means of its affirmative defenses or a counter-claim for declaratory relief, an adjudication on a class-wide basis with respect to those issues may be both necessary and appropriate under Rule 57 and 28 U.S.C. § 2201(a) (governing declaratory relief actions), in accordance with Rule 23(b)(2) and (c)(4)(A). See Societe de Conditionnement v. Hunter Eng. Co., Inc., 655 F2d 938, 943 (9th Cir. 1981) (patent infringement actions are “indisputably appropriate” for declaratory relief); Research Corp., 301 F. Supp. at 500 (“By notifying alleged infringers of the patent, threatening suits for infringement if licenses are not taken, and by bringing these civil actions against them, the plaintiff has acted on grounds generally applicable to the class.”).
- Although Notice To Members Of The Defendant Class Is Not Automatically Required In A Mandatory Defendant Issues Class Under Rules 23(b)(1), (b)(2) and (c)(4), The Plaintiff Patent Holder Usually Should Request That Notice Be Given Anyway.
Notice to absent class members is not required in class actions certified under Rules 23(b)(1) and (b)(2). However, the Court is given discretion by Rule 23(d)(2) and (c)(2)(A) to direct “appropriate” notice to be given in Rule 23(b)(1) and (b)(2) class actions “for the protection of the members of the class or otherwise for the fair conduct of the action.” See Fed. R. Civ. Proc. 23(d)(2); see also Fed. R. Civ. Proc. 23(c)(1)(C)(2)(A) (“For any class certified under 23(b)(1) or (2), the court may direct appropriate notice to the class.”); Federal Judicial Center, Manual For Complex Litigation (Fourth) (West 2004) § 21.311 (if notice is appropriate in mandatory (b)(1) or (b)(2) class actions, "it need not be individual notice because, unlike a Rule 23(b)(3) class, there is no right to request exclusion from Rule 23(b)(1) and (b)(2) classes.”).
A plaintiff patent holder would be well advised to request that the district court approve a reasonable notice regime to inform absent Class members of the pendency of the lawsuit, of the proposed adjudication of the Class Issues, and of their ability to request leave to intervene or otherwise to monitor the representation of their rights. See Kerney v. Fort Griffin Fandangle Ass’n, Inc., 624 F.2d 717 (5th Cir. 1980)(defendant class action comported with constitutional due process since the representative defendants are required to fairly and adequately represent the class and the Court has the power to ensure that absent defendants are given notice of the action and an opportunity to present individual defenses, if necessary or appropriate).