eisen carlisle jacquelin argued february decided may petitioner brought class action fed rule civ proc behalf traders new york stock exchange certain period charging respondent brokerage firms handled exchange business respondent exchange violating antitrust securities laws followed series decisions district appeals district ultimately decided suit maintained class action finding two quarter million members prospective class identified name address reasonable effort cost send individual notice proposed notification scheme providing individual notice limited number prospective class members notice publication remainder district held preliminary hearing merits finding petitioner likely prevail trial ruled respondents bear costs notification scheme appeals reversed ordered suit dismissed class action disapproving district partial reliance publication notice appeals held rule required individual notice identifiable class members district authority hold preliminary hearing merits purpose allocating notice costs entire notice expense fall petitioner proposed class action unmanageable rule petitioner contends appeals jurisdiction review district orders appeals decided issues incorrectly held district resolution notice problems constituted final decision within meaning therefore appealable right section pp section limit appellate review final judgments terminate action rather requirement finality given practical rather technical construction cohen beneficial loan pp district decision respondents lawfully required bear costs notice involved collateral matter unrelated merits petitioner claims final disposition claimed right ingredient cause action require consideration cohen supra district resolution notice problems failed comply notice requirement rule pp express language intent rule leave doubt individual notice must sent class members identified reasonable effort nothing show individual notice mailed two quarter million class members whose names addresses easily ascertainable class members individual notice clearly best notice practicable within meaning rule pp facts cost sending individual notices prohibitively high petitioner stake matter individual notice might unnecessary prospective class member large enough stake justify separate litigation individual claim dispense requirement since individual notice identifiable class members discretionary consideration waived particular case unambiguous requirement rule pp adequate representation satisfy rule since rule speaks notice well adequacy representation requires provided otherwise notice published otherwise required case pp petitioner must bear cost notice members class improper district impose part cost respondents pp nothing either language history rule gives authority conduct preliminary inquiry merits suit order determine whether may maintained class action indeed procedure contravenes rule allowing representative plaintiff secure benefits class action without first satisfying requirements rule pp preliminary determination merits may substantially prejudice defendant since unaccompanied traditional rules procedures applicable civil trials relationship parties truly adversary plaintiff must pay cost notice part ordinary burden financing suit pp powell delivered opinion burger stewart white blackmun rehnquist joined douglas filed opinion dissenting part brennan marshall joined post aaron fine argued cause petitioner briefs mordecai rosenfeld harold kohn devereux milburn william eldred jackson argued cause respondents briefs louis stanton russell brooks briefs amici curiae urging reversal filed louis lefkowitz attorney general pro se samuel hirshowitz first assistant attorney general george zuckerman arnold fleischer assistant attorneys general attorney general new york israel packel attorney general lawrence silver gerry elman deputy attorneys general david berger commonwealth pennsylvania evelle younger attorney general anthony joseph assistant attorney general michael spiegel deputy attorney general state california william baxley attorney general alabama norman gorsuch attorney general alaska gary nelson attorney general arizona arthur bolton attorney general georgia ed hancock attorney general kentucky robert quinn attorney general leo schwartz special assistant attorney general massachusetts john danforth attorney general missouri allen olson attorney general north dakota richard israel attorney general rhode island kimberly cheney attorney general vermont robert shevin attorney general florida richard turner attorney general iowa william guste attorney general louisiana summer attorney general mississippi louis lefkowitz attorney general new york larry derryberry attorney general oklahoma kermit sande attorney general south dakota andrew miller attorney general virginia david shapiro james vanr springer state alabama et al sheldon burman new york state trial lawyers assn edward pollock leonard sacks stephen zetterberg california trial lawyers assn melvin wulf burt neuborne american civil liberties union jack greenberg james nabrit iii charles stephen ralston eric schnapper naacp legal defense educational fund alan morrison public citizen consumers union briefs amici curiae urging affirmance filed william falkenhainer rollin woodbury southern california edison samuel gates dwight buss ralph mcafee carl schuck marvin schwartz william simon george spiegelberg philip strubing american college trial lawyers justice powell delivered opinion may petitioner filed class action behalf traders new york stock exchange exchange complaint charged respondents violations antitrust securities laws demanded damages petitioner class eight years elapsed trial merits claims parties courts still wrestling complex questions surrounding petitioner attempt maintain suit class action fed rule civ proc granted certiorari resolve difficulties petitioner brought class action district southern district new york originally sued behalf buyers sellers odd lots exchange subsequently class limited traded odd lots period may june throughout period trading part exchange regular auction market handled exclusively special dealers bought sold accounts principals respondent brokerage firms carlisle jacquelin decoppet doremus together handled exchange business report special study securities markets doc pt compensated differential surcharge imposed investor addition standard brokerage commission applicable transactions period question differential point per share stocks trading per share point per share stocks trading per share petitioner charged respondent brokerage firms monopolized trading set differential excessive level violation sherman act demanded treble damages amount overcharge petitioner also demanded unspecified money damages exchange alleged failure regulate differential protection investors violation securities exchange act finally requested attorneys fees injunctive prohibition future excessive charges critical fact litigation petitioner individual stake damages award seeks competent attorney undertake complex antitrust action recover inconsequential amount economic reality dictates petitioner suit proceed class action opposing counsel therefore engaged prolonged combat various requirements rule result exceedingly complicated series decisions district appeals second circuit understand labyrinthian history litigation preliminary overview decisions may prove useful beginning district determined petitioner suit maintainable class action appeal appeals issued two decisions known popularly eisen eisen ii first held district decision final order thus appealable second appeals intimated petitioner suit satisfy requirements rule remanded case permit district consider matter conducting several evidentiary hearings remand district decided suit maintained class action entered orders intended fulfill notice requirements rule case appealed appeals issued decision eisen iii ended trilogy denying class action status petitioner suit review developments detail eisen eisen ii addition meeting four conjunctive requirements class action must also qualify one three subdivisions petitioner argued suit maintainable class action three subdivisions appeals held first two subdivisions inapplicable suit therefore turned attention third subdivision subdivision requires determine whether questions law fact common members class predominate questions affecting individual members whether class action superior available methods fair efficient adjudication controversy specifically identifies four factors relevant inquiries detailed review provisions appeals concluded potential barrier maintenance suit class action rule directive evaluate difficulties likely encountered management class action commonly referred manageability consideration encompasses whole range practical problems may render class action format inappropriate particular suit reference litigation appeals noted difficulties distributing ultimate recovery class members formidable though necessarily insuperable commented reluctant permit actions proceed likely benefit anyone lawyers bring therefore directed district conduct inquiry order consider mechanics involved administration present action ibid finally appeals turned imposing obstacle class action notice requirement rule district held rule due process clause fifth amendment required individual notice class members identified petitioner objected mailed notice entire class prohibitively expensive argued form publication notice suffice appeals declined settle issue nothing record us arrive rational satisfactory conclusion propriety resorting form publication means giving necessary notice members class behalf action stated commenced maintained outcome eisen ii remand evidentiary hearing questions notice manageability adequacy representation matters district may consider pertinent proper ruling aroused later controversy appeals expressly purported retain appellate jurisdiction case heard remand eisen iii finally district took problem notice found prospective class included six million individuals institutions intermediaries various sorts reasonable effort two million investors identified name address names addresses additional persons participated special investment programs involving trading also identified reasonable effort using current postage rate six cents determined stuffing mailing individual notice form cost cents thus individual notice identifiable class members cost additional expense incurred suitable publication notice designed reach four million class members district concluded however neither rule due process clause required substantial expenditure outset litigation instead proposed notification scheme consisting four elements individual notice member firms exchange commercial banks large trust departments individual notice approximately identifiable class members transactions relevant period individual notice additional class members selected random prominent publication notice wall street journal newspapers new york california calculated package cost approximately issue resolved district first opinion remand eisen ii bear cost notice petitioner understandably declined pay order litigate action involving individual stake question presented something dilemma expense notice placed upon petitioner end possibly meritorious suit frustrating policy behind private antitrust actions admonition new rule given liberal rather restrictive interpretation eisen ii hand costs arbitrarily placed upon respondents point result might imposition unfair burden founded upon groundless claim addition probability encouraging frivolous class actions step might also result respondents passing customers including many class members case expenses defending actions relying purported retention jurisdiction appeals eisen ii respondents may obtained order directing clerk district certify transmit record appellate review subsequently respondents also filed notice appeal petitioner motion dismiss ground appeal taken final order denied appeals june may appeals issued eisen iii majority disapproved district partial reliance publication notice holding rule required individual notice identifiable class members majority ruled district authority conduct preliminary hearing merits purpose allocating costs entire expense notice necessarily fell petitioner representative plaintiff finally appeals rejected expedient recovery concluded proposed class action unmanageable rule reasons appeals ordered suit dismissed class action one judge concurred result solely ground district erred imposing notice costs respondents petitioner requests rehearing rehearing en banc denied thus six years three published decisions appeals endorsed conclusion reached district original order petitioner suit proceed class action procedural history least litigation lived judge lumbard characterization frankenstein monster posing class action eisen ii ii outset must decide whether appeals eisen iii jurisdiction review district orders permitting suit proceed class action allocating cost notice petitioner contends respondents counter asserting two independent bases appellate jurisdiction first orders question constituted final decision within meaning therefore appealable right section second appeals eisen ii expressly retained jurisdiction pending development factual record remand consequently new jurisdictional basis required decision eisen iii agree first ground asserted respondents occasion consider second restricting appellate review final decisions prevents debilitating effect judicial administration caused piecemeal appellate disposition practical consequence single controversy application cases plain enough determining finality particular judicial order may pose close question verbal formula yet devised explain prior finality decisions unerring accuracy provide utterly reliable guide future know course limit appellate review final judgments terminate action cohen beneficial loan rather requirement finality given practical rather technical construction inquiry requires evaluation competing considerations underlying questions finality inconvenience costs piecemeal review one hand danger denying justice delay dickinson petroleum conversion omitted find instant case controlled decision cohen beneficial loan supra considered applicability federal diversity action forum state statute making plaintiff stockholder derivative action liable litigation expenses ultimately unsuccessful entitling corporation demand security advance payment trial ruled statute inapplicable corporation sought immediate appellate review stockholder objection order appealed final held order appealable two grounds first district finding tentative informal incomplete settled conclusively corporation claim entitled state law require shareholder post security costs second decision constitute merely step toward final disposition merits case ibid rather concerned collateral matter reviewed effectively appeal final judgment summarized conclusion way decision appears fall small class finally determine claims right separable collateral rights asserted action important denied review independent cause require appellate consideration deferred whole case adjudicated ibid iii turning merits case find district resolution notice problems erroneous two respects first failed comply notice requirements rule second imposed part cost notice respondents rule provides class action maintained subdivision class member shall advised right exclude action request enter appearance counsel judgment whether favorable bind class members requesting exclusion end required direct class members best notice practicable circumstances including individual notice members identified reasonable effort think import language unmistakable individual notice must sent class members whose names addresses may ascertained reasonable effort advisory committee note rule reinforces conclusion see advisory committee described subdivision merely discretionary added mandatory notice pursuant subdivision designed fulfill requirements due process class action procedure course subject committee explicated incorporation due process standards citation mullane central hanover bank trust like cases mullane addressed constitutional sufficiency publication notice rather mailed individual notice known beneficiaries common trust fund part judicial settlement accounts observed notice opportunity heard fundamental requisites constitutional guarantee procedural due process stated notice must reasonably calculated circumstances apprise interested parties pendency action afford opportunity present objections continued notice person due process mere gesture due process means employed must one desirous actually informing absentee might reasonably adopt accomplish reasonableness hence constitutional validity chosen method may defended ground reasonably certain inform affected schroeder city new york decided prior promulgation amended rule explained mullane required rejection notice publication name address affected person available stated general rule notice publication enough respect person whose name address known easily ascertainable also noted notice publication long recognized poor substitute actual notice justification difficult best viewed context express language intent rule leave doubt individual notice must provided class members identifiable reasonable effort present case names addresses class members easily ascertainable nothing show individual notice mailed class members individual notice clearly best notice practicable within meaning rule prior decisions petitioner contends however dispense requirement individual notice case advances two reasons first prohibitively high cost providing individual notice class members end suit class action effectively frustrate petitioner attempt vindicate policies underlying antitrust securities laws second petitioner contends individual notice unnecessary case prospective class member large enough stake matter justify separate litigation individual claim hence class members lack incentive opt class action even notified short answer arguments individual notice identifiable class members discretionary consideration waived particular case rather unambiguous requirement rule advisory committee note explained rule intended insure judgment whether favorable bind class members request exclusion suit pp accordingly class member identified reasonable effort must notified may request exclusion action thereby preserve opportunity press claim separately may remain class perhaps participate management action nothing rule suggest notice requirements tailored fit pocketbooks particular plaintiffs petitioner contends adequate representation rather notice touchstone due process class action therefore satisfies rule think view little commend begin rule speaks notice well adequacy representation requires provided moreover petitioner argument proves much quickly leads conclusion notice published otherwise required present case quite apart due process may require command rule clearly contrary therefore conclude rule requires individual notice sent class members identified reasonable effort also agree appeals petitioner must bear cost notice members class district reached contrary conclusion imposed notice cost respondents decision predicated finding made preliminary hearing merits case petitioner likely prevail claims apparently interpreted rule authorize hearing part determination whether suit may maintained class action disagree find nothing either language history rule gives authority conduct preliminary inquiry merits suit order determine whether may maintained class action indeed procedure contravenes rule allowing representative plaintiff secure benefits class action without first satisfying requirements thereby allowed obtain determination merits claims advanced behalf class without assurance class action may maintained procedure directly contrary command subdivision determine whether suit denominated class action may maintained soon practicable commencement action short agree judge wisdom conclusion miller mackey international rejected preliminary inquiry merits proposed class action determining propriety class action question whether plaintiff plaintiffs stated cause action prevail merits rather whether requirements rule met absence support rule petitioner effort impose cost notice respondents must fail usual rule plaintiff must initially bear cost notice class exceptions cited district related situations fiduciary duty plaintiff defendant shareholder derivative suit relationship parties truly adversary plaintiff must pay cost notice part ordinary burden financing suit petitioner consistently maintained however bear cost notice subdivision members class defined original complaint see therefore remand cause instructions dismiss class action defined judgment appeals vacated cause remanded proceedings consistent opinion ordered footnotes july breakpoint raised class actions maintainable action may maintained class action prerequisites subdivision satisfied addition prosecution separate actions individual members class create risk inconsistent varying adjudications respect individual members class establish incompatible standards conduct party opposing class adjudications respect individual members class practical matter dispositive interests members parties adjudications substantially impair impede ability protect interests party opposing class acted refused act grounds generally applicable class thereby making appropriate final injunctive relief corresponding declaratory relief respect class whole finds questions law fact common members class predominate questions affecting individual members class action superior available methods fair efficient adjudication controversy matters pertinent findings include interest members class individually controlling prosecution defense separate actions extent nature litigation concerning controversy already commenced members class desirability undesirability concentrating litigation claims particular forum difficulties likely encountered management class action appeals petitioner dropped contention suit qualified subdivision held subdivision inapplicable ground prospective class consisted entirely small claimants none afford litigate action order recover individual claim consequently little chance inconsistent varying adjudications respect individual members class establish incompatible standards conduct party opposing class subdivision held apply actions exclusively predominantly injunctive declaratory relief advisory committee note proposed rules civil procedure two million traders dealt brokerage firms transmitted transactions respondents carlisle jacquelin decoppet doremus via teletype comparing firms computerized records teletype transactions brokerage firms computerized records customer names addresses names addresses two million traders obtained period may june individuals transactions participation monthly investment plan operated exchange persons traded odd lots participation number payroll deduction plans operated merrill lynch pierce fenner smith adjusting figure reflect subsequent increase postage yield figure section provides courts appeals shall jurisdiction appeals final decisions district courts district district canal zone district guam district virgin islands except direct review may long ago complained probably question equity practice subject frequent discussion finality decrees cases must conceded altogether harmonious mcgourkey toledo ohio intervening years difficulty resolving questions abated justice black commented gillespie steel whether ruling final within meaning frequently close question decision issue either way supported equally forceful arguments impossible devise formula resolve marginal cases coming within might well called twilight zone finality explained part iii opinion find notice requirements rule dispositive petitioner attempt maintain class action presently defined therefore occasion consider whether appeals correctly resolved issues manageability recovery indeed whether issues properly appeals theory retained jurisdiction emphasis added subdivision provides full class action maintained subdivision shall direct members class best notice practicable circumstances including individual notice members identified reasonable effort notice shall advise member exclude class requests specified date judgment whether favorable include members request exclusion member request exclusion may desires enter appearance counsel discussion inadequacies published notice bears attention idle pretend publication alone prescribed reliable means acquainting interested parties fact rights courts chance alone brings attention even local resident advertisement small type inserted back pages newspaper makes home outside area newspaper normal circulation odds information never reach large indeed chance actual notice reduced notice required even name whose attention supposed attract inform acquaintances might call attention petitioner also argues class members opt statute limitations long since run claims class members petitioner contention disposed recent decision american pipe construction utah established commencement class action tolls applicable statute limitations members class concerned notice requirements subdivision applicable class actions maintained subdivision terms subdivision inapplicable class actions injunctive declaratory relief maintained subdivision petitioner effort qualify suit class action subdivisions rejected appeals see supra see dolgow anderson edny course express opinion proper allocation cost notice cases record reveal whether smaller class traders defined whether petitioner willing pay cost notice members class intimate view whether subclass satisfy requirements rule note however dismissal class action originally defined without prejudice efforts petitioner may make redefine class either rule fed rule civ proc justice douglas justice brennan justice marshall concur dissenting part general agreement phases case touched add words opinion fully explore issues dispositive case remand district federal rule civ proc provides appropriate action may brought maintained class action respect particular issues class may divided subclasses subclass treated class provisions rule shall construed applied accordingly judge oakes speaking judge timbers said plaintiff class might example divided much smaller subclasses odd lot buyers particular periods one subclass treated test case subclasses held abeyance individual notice probably reasonable cost given members particular small subclass easily identified dissenting denial rehearing en banc power create subclass clear unambiguous included large questions district resolve notice member subclass essential rule rule notified member may opt remain question whether subclass suit manageable since subclass chosen light size class whose claims presently us apparent difficulty sense statute limitations argued run run many classes held american pipe construction utah start class action prior running statute protects members class whether rule obtain benefit members included subclass bringing suit manageability issue question decided moreover subclass sues wins sues loses questions covering rights members larger class parties raised questions answered fact unresolved questions law remain insurmountable obstacle rule expressly authorizes subclasses sue lieu full class rule may forerunner proposal stated judge weinstein question law fact common persons numerous class whose joinder impracticable one whose claims defenses representative claims defenses fairly adequately protect interests may sue sued behalf rule provide six requirements class action class numerous members common question law fact impracticability joinder representative claim defense fair adequate protection absentees almost bond association event status legal dispute arose sufficient constitute class class must numerous need large factor makes impracticable bring number members sufficient satisfy present section new york civil practice act satisfy proposed rule size modesty monetary interest inability locate members difficulty obtaining jurisdiction considered determining impracticability joinder rule provides soon practicable commencement action brought class action shall determine order whether maintained order subdivision may conditional may altered amended decision merits plain words make decides full class action maintained alter amend order decision merits one permissible way order may changed altered provided rule reducing larger class subclass provided subsection rule prerequisites class cause action described rule instant case hurdle passed stage notice requirements manageability iota change made cause action restricting subclass purpose rule provide flexibility management class actions trial taking active role conduct litigation see dolgow anderson edny green wolf cert denied lower federal courts recognized discretion define subclasses proper prosecute action without bound plaintiff complaint see dolgow anderson supra philadelphia elec anaconda american brass ed see generally wright miller federal practice procedure moore federal practice rule clearly indicates courts retain power duty realign classes conduct action appropriate see carr conoco plastics cert denied johnson industries supp nd miss ostapowicz johnson bronze wd baxter savannah sugar refining sd discretion fully retained complaint preserved subclass defined prosecute action bounds subclass narrowed widened order district provided rule without need amend complaint without constraints might exist complaint earlier amended pursuant rule include subclass agree professor chafee class action serves convenience parties also prompt efficient judicial administration think society growing complexity bound innumerable people common disasters calamities ventures go begging justice without class action regard due process protected consumers whose claims may seem de minimis alone practical recourse either remuneration injunctive relief may environmentalists photographic development plant ruined air pollution radiation suffer perceptibly smoke noxious gases radiation unnamed individual may ratepayer excessively charged utility homeowner whose assessment slowly rising beyond ability pay class action one legal remedies small claimant command status quo strengthen hand view creating system law dispenses justice lowly well liberally endowed power wealth parties courts concentrated whether class action sustained behalf six million investors record limited information bearing manageable subclasses created nonetheless indication certain subclasses might economically manageable counsel respondent carlisle jacquelin stated oral argument appeals shareholders participate client monthly investment plan carlisle jacquelin corresponds investors merrill lynch corresponds people participating payroll deduction investment plan whether eisen plaintiff may come forward intervene fits subclass know brokerage houses correspond regularly course business investors marginal cost providing individual notice required rule might nothing printing stuffing additional sheet paper correspondence already sent investor perhaps programing computer type additional paragraph bottom monthly quarterly statements regularly mailed brokers subclass engaged numerous transactions might also defined recovery per class member might large enough justify cost notice management action survey four wire firms revealed customers transactions defining definite subclasses discussed moreover problems inherent distributing eventual judgment reduced class members readily identifiable readily accessible transaction records individually provable damages case entire class defined original complaint defendants put notice within period limitation potential liability serving purpose statute limitations even substantive merits eventually prosecuted form subclass action class action held abeyance within period set statute limitations defendants essential information necessary determine subject matter size prospective litigation whether actual trial conducted form class action joint suit principal suit additional intervenors american pipe construction utah see wheaton representative suits involving numerous litigants cornell subclass lost argued investors members subclass precluded prosecuting successful suits since never day necessarily even apprised subclass action see hansberry lee james civil procedure moore federal practice subclass strict application doctrine mutuality estoppel limit usefulness subclass victory suits brought investors members subclass see generally james supra moore supra supp cases cited therein see vestal judicata variables parties iowa rev note geo rev currie mutuality collateral estoppel limits bernhard doctrine stan rev weinstein revision procedure problems class actions buffalo rev footnotes omitted eisen remitted individual action refused pay cost notice even subclass amendment complaint might called district rule district may instances require pleadings amended eliminate class allegations advisory committee notes indicate provision applied suit must proceed nonclass individual action appropriate class exists action must prosecuted first instance subclass problems manageability see chafee problems equity judge weinstein writing law journal may said however public authorities remiss performance responsibility reason inadequate legal authority excessive workloads simple indifference class actions may provide necessary temporary measure desirable corrections occurred existence class action litigation may also play substantial role bringing efficient administrative enforcement inducing legislative action matter touches issue credibility judicial system either committed make reasonable efforts provide forum adjudication disputes involving citizens including deprived human rights consumers overpay products antitrust violations investors victimized insider trading misleading information ignore irony courts ready imprison man steals goods interstate commerce unwilling grant civil remedy corporation benefited extent many millions dollars collusive illegal pricing goods public organization modern society affords possibility illegal behavior accompanied widespread diffuse consequences procedural means must exist remedy least deter conduct