Looking Back . . . In a Collective Way
A short history of class action law
By Susan T. Spence
Medieval English chancellors would have scoffed at the idea of a suit seeking
a coupon apiece from a merchant on behalf of thousands of customers who
didn't even know they had been injured — but that doesn't mean that
the modern consumer class action is a purely modern invention. The class
action actually has roots going back almost a millennium, when chancery
entertained cases bearing a remarkable similarity to modern consumer class
For certain types of groups — villages and parishes —
litigation by representatives on behalf of the group was well established in
England by the 12th century. For example, an 1125 writ of Henry III to the
archbishop of Canterbury stated that "according to our law and custom of
the realm ... villages and communities of villeins ... ought to be able to
prosecute their please and complaints in our courts and in those of others
through three or four of their number." Stephen C. Yeazell, "The
Past and Future of Defendant and Settlement Classes in Collective
Litigation," 39 Ariz. L. Rev. 687, 690 (1997).
The earliest example found by Yeazell of what he calls "group
litigation" is Master Martin Rector of Barkway v. Parishioners of
Nuthampstead (circa 1199). All that remains of Martin v.
Parishioners are records of depositions, which are reported in 95 Seld.
Society 8 (No. 210) (1981). The case concerned a dispute between the
parishioners of the chapel of Nuthampstead and the rector of Barkway.
The chapel of Nuthampstead had once been an independent chapel. By the time
the dispute arose, however, through a series of transactions, the chapel had
become a member of the church of Barkway. The witnesses on both sides of the
dispute agreed that the rector was to receive the tithes from the chapel and
to supply a minister for the chapel. The dispute appears to have been over
whether the rector had to supply a chaplain for Nuthampstead every day or
just three days a week.
Viewed through a modern lens, Martin v. Parishioners looks like a
religious consumer class action about how much of a minister the local tithes
bought, with the parishioners arguing for a full-time, full-service chaplain
and the rector arguing for the cheaper part-time alternative.
Raymond B. Marcin, in "Searching for the Origin of the Class
Action," 23 Cath. U. L. Rev. 515, 521-523 (1974) has identified
the 1309 case of Discart v. Otes as the earliest example of a
judicially created class action. The case concerned the currency used in the
Channel Islands, which lie about 20 miles off the northwestern coast of
The Channel Islands, Norman by heritage, became subject to English rule at
the time of the Norman Conquest. King Edward I of England granted the islands
to Sir Otes Grandison for the term of his life. Otes was not a popular
"Chief among the islanders' grievances was a confiscatory decree of
Sir Otes insisting that all debts and rents due him or the crown be paid in
sound French currency instead of the debased local coinage of the
islands," Marcin explains. "The order had the effect of tripling
all debts and rents in one fell swoop."
Jordan Discart had served as the king's granger for a year and, as such,
had had what amounted to a commission to sell the king's corn. He sold the
corn for local money. Alas, when the time came to account to Otes for his
sales, Otes insisted on being paid in French currency.
Discart filed a bill with the justices in General Eyre of the Channel
Islands — justices with general civil jurisdiction acting "under
a direct royal commission to administer justice" — seeking a
decree requiring Otes to accept Discart's payment in local money.
Discart was not the only person who wanted to be discharged from his duties
to the crown on payment of his accounts to Otes in local money. The justices
came up with a novel solution: Pass the buck for making the final decision to
the King's Council, but provide that Discart and "all that are in like
case with [Discart] are bidden to appear ... before that same Council, either
in person or by some one representing them all, to hear its opinion and to
receive such judgment as shall there be delivered." Discart v. Otes, 30
Seld. Society 137 (No. 158, P.C. 1309) (1914). Thus, the justices in General
Eyre created a class action.
Where did the justices get such an idea? Marcin suggests that they may have
gotten the idea of creating a class in the Discart case from an earlier bill
filed by another group of Channel Islanders who are "[p]erhaps the best
candidates for the title 'authors of the original class action.'"
Marcin, supra, at 522, citing John the Mason v. Certain Bailiffs and
Ministers, 30 Seld. Society 139 (No. 161, P.C. 1309) (1914).
John the mason, Piers Howel, Robert the tower, Samson Lemoeine, Andrew
Lesand and Thomas Amend, as some of the many tenants of a parcel of
property known as Andrews wharf ... filed a challenge to . . . Sir Otes's
order trebling their rents on their own behalf and on behalf of all the
other tenants. Id.
Regardless of how the justices came up with the idea to create a class
action to settle once and for all the question of whether Otes could refuse
payments tendered in the local money, that's what they did. Discart v.
Otes perhaps has more in common with a modern class action than the other
early cases do. Unlike the parishioners of Nuthampstead, the Channel
Islanders did not start litigation as a group. Instead, like class members in
a modern class action, they were formed into a group by judicial decree after
the litigation started.
How did things turn out for this early class? The King's Council ruled in
favor of Sir Otes and against the class — once and for all.
The early English examples of group litigation show at least as many
defendant groups as plaintiff groups. Yeazell, "The Past and Future of
Defendant and Settlement Classes in Collective Litigation," 39 Ariz.
L. Rev. 687, 688 (1997). Yeazell cites Martin v. Parishioners,
supra, as an early example of a defendant group, noting that the rector,
the more powerful party, filed the bill against the parishioners.
Marcin cites the colorful case of Hilgay v. Wesnam, 10 Seld. Society
44 (No. 41, Ch. 1399) (1896) as another early example of a defendant group.
Marcin, supra, at 519-520. In 1399, Simon Hilgay, parson of the church
of Hilgay, brought a bill in chancery against Robert de Wesnam alleging that
Wesnam and his evil minions were menacing him so that "he dare not, in
this most holy time of Lent, approach his said parsonage to hear the
confessions of his parishioners, for fear of unmerited death." Hilgay
alleged that Wesnam and his confederates had chased him with "naked
swords drawn, clubs and bucklers, from the town of Fincham in the County of
Norfolk to the town of Crimplesham, which are two leagues distant, in order
to have killed him."
Hilgay did name six of Wesnam's associates as respondents, but pleaded as
grounds for relief in chancery that "considering that the said Robert
Wesnam hath so many evil-doers associated and confederated with him, and is
of such horrible maintenance," that Hilgay "could never come to his
recovery against him and the others at common law." The chancellor
commanded Wesnam and his confederates to appear before the King and his
Council (not before the chancellor) to answer the bill. How many evil minions
Wesnam actually had, and whether Hilgay got any relief from their menacing,
are details that history appears to have forgotten.
The case most commonly cited as the first reported class action in English
chancery court is Brown v. Vermuden (1676), 1 Ch. Cas. 272, 22 Eng.
Rep. 796. Even if Brown v. Vermuden is not, as it is often cited to
be, the first example of a "class action," it deserves recognition
as the earliest reported case explicitly holding that the judgment in a class
action is binding on absent class members.
The story of Brown v. Vermuden is set in mining country —
Derbyshire, to be exact — in the late seventeenth century. As Marcin
explains, it was a chaotic time in English history, in the wake of the
"shuddering excesses of the Cromwellian interregnum" and of the
Great Plague and the Great Fire of London.
The vicar of Worselworth "[found] his parish finances in desperate
straits" and traced the problem to Derbyshire, where the miners were not
paying their tithes. The vicar sued the miners, "assert[ing] title to
one-tenth of the lead-ore output of the mines," and the miners named
four representatives to defend the suit. They lost.
Along came Mr. Vermuden, a mine owner who was not one of the four
representatives, who intervened in the litigation to argue that he was not
bound by the judgment because he was not a party to the case and could not
have appealed from the adverse judgment. The chancellor was unimpressed with
Vermuden's argument and held that "If the Defendant should not be bound,
Suits of this Nature, as in the case of Inclosures, Suit against the
Inhabitants for Suit to a Mill, and the like, would be infinite, and
impossible to be ended." Furthermore, the chancellor decided, Vermuden
could appeal "though no Party nor privy ... because he is grieved by the
And thus it was that the English chancery held that absent class members
were bound by the judgment in a class action. (What was settled more than 400
years ago in England, however, did not stay settled in America — but
that's another story.)
Unlike many modern American classes, the early English classes were
cohesive. Class members lived, worked and worshiped together. They were aware
of the dispute and might even have played a part in selecting class
representatives. In some senses, however, the modern American class action
has departed little from its English roots. If the disputes at issue in
Martin v. Parishioners, Discart v. Otes or Brown v. Vermuden
arose in America today, they could no doubt be resolved in a class
The modern American class action evolved on the equity side of the
courthouse. Rule 23, Fed. R. Civ. P., is descended from an equitable
exception to the necessary party rule.
The U.S. Supreme Court promulgated its second set of Federal Equity Rules
in 1842, adding a new rule that was interpreted by courts as providing for
class suits. Rule 48 provided:
Where the parties on either side are very numerous, and cannot, without
manifest inconvenience and oppressive delays in the suit, be all brought
before it, the court in its discretion may dispense with making all of them
parties, and may proceed in the suit, having sufficient parties before it to
represent all the adverse interests of the plaintiffs and the defendants in
the suit properly before it. But in such cases the decree shall be without
prejudice to the rights and claims of all the absent parties.
Commentators were almost unanimous in saying that Rule 48 simply restated a
pre-existing rule. But what rule? Considering the closing proviso, it appears
that Rule 48 restated an exception to the necessary party rule that Justice
Story, on circuit, had articulated in the 1820 case of West v.
Story explained the "general rule in equity, that all persons
materially interested, either as plaintiffs or defendants in the subject
matter of the bill ought to be made parties to the suit, however numerous
they may be." He then stated that equity courts recognized exceptions to
that general rule, and, when a bill purported to be on behalf of all
interested persons, "the plea of the want of parties [would] be
repelled." Id. at 722. Story did not, however, indicate that the
decree in such a case would bind absent parties. Hence the closing proviso in
Equity Rule 48.
Legal sentiment changed in the years following West v. Randall.
Courts and legislatures perceived a need for a class action device that could
bind absent class members.
In 1849, the New York assembly adopted the Field Code, the first big step
away from common law rules of pleading and toward modern rules of civil
procedure. The assembly provided for class suits by adding a provision to
Field's recommended joinder rules. The class action rule under the Field Code
was that "[w]hen the question is one of a common or general interest of
many persons, or when the parties are very numerous and it may be impractical
to bring them all before the court, one or more may sue or defend for the
In 1853, the Supreme Court, in the landmark case of Smith v.
Swormstedt, ignored the closing proviso of Federal Equity Rule 48 and
held that the decree in a representative suit bound the absent class members.
In 1912, the Supreme Court promulgated the third set of Federal Equity Rules.
The court dropped old Rule 48 and its proviso and borrowed language from the
Field Code for new Rule 38.
Despite the holding in Smith v. Swormstedt and the language of the
new rule, doubt lingered concerning the binding effect of a decree on absent
class members. In an apparent attempt to reconcile inconsistency in the case
law, commentators developed a vocabulary for describing different types of
class suits: They were either "true," "hybrid" or
Generally speaking, a "spurious" class action was an "opt
in" class action — the judgment in such an action did not bind
absent class members unless they intervened in the action, which they could
do after judgment. The judgment in a "true" class suit, which
generally concerned a common fund or common property, bound all members of
the class. A "hybrid" class action was somewhere in between, but
exactly where varied from case to case.
In 1937, the Supreme Court adopted the Rules of Civil Procedure, merging
law and equity. The advisory committee said that Rule 23, "Class
Actions," was a "substantial restatement of Equity Rule 38."
In its original form, Rule 23 did not provide a mechanism for giving notice
to class members or for allowing them to opt out of a class action. It also
did not say whether or when absent class members were bound by the judgment.
The tripartite categorization of class actions as true, hybrid or spurious
persisted, as did the confusion concerning the binding effect of the judgment
on absent class members.
In 1940, in Hansberry v. Lee, the Supreme Court held that persons
whose interests had not been adequately represented in a class action were
not bound by the judgment. To hold otherwise would deprive the purported
class members of due process, it reasoned. Thus, adequate representation is
the touchstone of a binding class action — those who are not
adequately represented are not part of the class and are not bound by the
After evolving slowly from an exception to the necessary party rule to a
rule clearly providing for class suits, Rule 23 took a giant evolutionary
leap in 1966. In that year, the Supreme Court amended Rule 23 to explicitly
provide that a judgment in a class action binds all absent class members. The
new rule sets forth requirements for class certification and includes
procedures for notifying class members that the action is pending. It also
replaces the "spurious," opt-in class with the controversial
"(b)(3)" opt-out class.
In 1974, the Supreme Court, in Eisen v. Carlisle & Jacquelin,
held that, in opt-out class actions, notice must be given to each member of
the class who can be identified, even those whose claims are so small that it
is unlikely they would opt out to pursue individual actions.
Rule 23 has changed little since 1966. In 1998, the Supreme Court added
subdivision (f), which provides for permissive interlocutory appeals of
decisions granting or denying class certification, but the other changes to
the rule have been nonsubstantive.
As class action procedures evolved in the federal courts, those courts
became less hospitable forums for class actions.
In the 1921 case of Supreme Tribe of Ben-Hur v. Cauble, the Supreme
Court seemed to favor jurisdiction of class suits. In that case, the federal
district court's jurisdiction was based on diversity of citizenship, but not
all members of the class were diverse. The Supreme Court had held that the
judgment bound all members of the class who were adequately represented
— even those who were not diverse. The court explained that the
district court had "ancillary jurisdiction" on the claims of the
nondiverse class members.
Half a century later, the Supreme Court seemed to disfavor jurisdiction of
class suits. In 1969, the court held in Snyder v. Harris that class
members could not aggregate claims to meet the amount-in-controversy
requirement for diversity jurisdiction. In 1973, in Zahn v. International
Paper Co. , the court removed any doubt left after Snyder by
holding that each class member's claim must meet the amount-in-controversy
requirement for diversity jurisdiction. Thus, federal courts became
unavailable for most consumer class actions.
The continuing vitality of Zahn is uncertain. In the Judicial
Improvements Act of 1990, Congress combined the concepts of pendent and
ancillary jurisdiction under the label "supplemental jurisdiction,"
which is codified at 28 U.S.C. 1367. There was no indication that Congress
intended to change the Zahn rule, but the supplemental jurisdiction statute
does not explicitly preserve it. In 1995, in In re Abbot Lab. , the
U.S. Court of Appeals for the Fifth Circuit held that, under the plain
meaning of the supplemental jurisdiction statute, the Zahn rule no
The Abbot Lab court held that, in a class action in which the
court's jurisdiction is based on diversity of citizenship, the court can
exercise supplemental jurisdiction over the smaller claims of other class
members as long as the class representative's claim satisfies the amount-in-
The Supreme Court affirmed In re Abbot Lab in 2000 by an equally
divided court. The court's one-sentence comment gives no additional guidance
as to whether the supplemental jurisdiction statute allows federal courts to
entertain class actions, in its diversity jurisdiction, in which not all
class members' claims meet the amount-in-controversy requirement.
In the meantime, the Supreme Court's 1985 decision in Phillips Petroleum
Co. v. Shutts had made state courts more viable forums for nationwide
class actions. In that case, the court held that state courts can exercise
jurisdiction over the claims of nationwide "opt out" plaintiff
classes. Specifically, the court held that due process does not require out-
of-state plaintiffs to "opt in" in order for their claims to come
within the jurisdiction of the forum state's court.
However, the court in Shutts also held that the state court may not
arbitrarily apply the law of the forum to all of the plaintiffs' claims; due
process requires that the forum state have a "significant contact or
significant aggregation of contacts" to claims in order to apply its own
law to those claims. Thus, a state court with jurisdiction of a nationwide
class action may have to apply different laws to the claims of different
To say that class actions are controversial is to understate the obvious.
Congress and state legislatures have reacted to some of the controversy by
changing the rules for certain types of class actions, particularly in the
Congress enacted the Private Securities Litigation Reform Act of 1995 in
response to controversy surrounding an increase in the number of class
actions alleging federal securities law violations. The act supplements Rule
23 for such actions by requiring early notification to plaintiff class
members and by addressing the selection of class representatives and counsel,
attorney fees, and settlement procedures.
In 1996, President Clinton signed into law the Prison Litigation Reform Act
of 1995, which, along with its amendments, limits the remedies available to
prisoners alleging unconstitutional conditions in prisons and limits attorney
fee awards for such actions.
Also in 1996, Congress began forbidding Legal Services Corp. fund
recipients from participating in any welfare reform effort, including class
actions challenging welfare laws. In 2001, however, in Legal Services
Corp. v. Velazquez, the Supreme Court held that the funding ban was
unconstitutional, reopening the door for LSC-funded entities to bring welfare-
reform class actions.
Some of the current class-action controversy surrounds the so-called
settlement class action, in which the would-be class representative reaches a
settlement agreement with the would-be defendant before an action is ever
filed, then files a class-action complaint and proposed settlement agreement
In 1997, in Amchem Products Inc. v. Windsor, the Supreme Court held
that the federal district court erred by certifying, for purposes of
settlement of a case that the parties did not intend to litigate, a huge,
nationwide, class of plaintiffs who had been occupationally exposed to
asbestos. The plaintiff class members included people who had manifested
injuries from asbestos exposure as well as people who had been exposed to
asbestos but who had not manifested any injuries.
The proposed settlement treated different types of plaintiffs in different
ways, and there were inherent conflicts among the plaintiffs. The court
explained that, although a proposed settlement is relevant to a decision on
class certification because litigation management problems are obviated, a
proposed settlement does not otherwise relax the requirements for class
certification. Because of the inherent conflicts of interest among the
plaintiffs and because of the many differences in their exposures and
injuries, the court held that the class was not appropriate for certification
according to Rule 23(b)(3).
The next change to Rule 23 is yet to be seen, but it will likely address
settlement class actions in response to the Amchem decision.
Spence is an associate at Johnston Barton Proctor & Powell LLP, in Birmingham, Ala. Her e-mail is