James M. Lawniczak on How to Bind Affected Parties Through Appropriate Notice

In this Emerging Issues Analysis, author James Lawniczak examines the requirement of "notice," which is critical in cases where there are many parties whose interests would be affected by the relief sought -- such as in class action and bankruptcy proceedings. In every case where the intent of court action is to bind multiple parties, some kind of publication notice should be considered, and usually undertaken.

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Notice generally is not an issue in traditional civil litigation. The plaintiff files suit, serves the defendant, and the parties then participate in the litigation and are bound through res judicata and collateral estoppel by the results thereof.

It is particularly important to carefully consider notice issues where there are many parties whose interests would be impacted by the relief sought. This is commonly the case in class actions and bankruptcy proceedings. For example, debtors and trustees often seek to sell assets of the estate free and clear of liens and claims in bankruptcy proceedings. In larger cases, there are often substantial numbers of entities who have or might have some interest in the property being sold.

What notice is required to affect their rights? The U.S. Supreme Court held in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950) [an enhanced version of this opinion is available to lexis.com subscribers], that due process requires "notice reasonably calculated, under all the circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to present their objections."

This commentary focuses on the delivery component of required notice, with emphasis on when notice by publication is sufficient to bind the parties so notified. In general, the cases observe that actual notice by delivery is required for known parties, with publication notice possible for unknown parties. However, as discussed below, some of the cases refine that dichotomy by expanding the scope of "known" parties, looking at a variety of factors that affect the feasibility of giving full, actual notice.

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