01-1555 Culver v. City of Milwaukee, et al.

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“Although the class was rightly decertified, and the suit, having thus been demoted to an individual action, therefore rightly dismissed because Culver’s claim had become moot, there is a loose end. Rule 23(e) requires that notice of a proposed dismissal ‘be given to all members of the class.’ The purpose is to enable the class members to protect their interests in the face of the dismissal of the class action. One thing they may need protection against is the class representative’s selling out the class by trading dismissal for benefits to himself. This was not a factor here; another thing they may need protection against, however, and it may be a factor here, is the expiration of the statute of limitations on the class members’ claims without their realizing it. The filing of a class action suit tolls the statute of limitations for all the members of the class,… but when the suit is dismissed without prejudice or when class certification is denied the statute resumes running for the class members…) Unless they are notified that the suit is dismissed, they may fail to file their own suits and thus fail to ‘re-arrest’ the statute of limitations… and as a result they may find themselves time barred without knowing it.

“The district judge failed to notify the class members of the decertification of the class. He thought they probably were unaware of the suit and therefore would not be prejudiced by its demise. ‘Probably’ is not good enough; it implies that some class members may well have been prejudiced… The judge’s duty is to order notice unless the risk of prejudice to absent class members is nil and to review for adequacy the form of notice proposed by class counsel in response to the order.”

Affirmed and remanded.

Appeal from the United States District Court for the Eastern District of Wisconsin, Adelman, J., Posner, J.