Eisen v. Carlisle & Jacquelin

PETITIONER: Eisen
RESPONDENT: Carlisle & Jacquelin
LOCATION: City of Shaker Heights

DOCKET NO.: 73-203
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 417 US 156 (1974)
ARGUED: Feb 25, 1974
DECIDED: May 28, 1974

ADVOCATES:
Aaron M. Fine - for petitioner
Devereux Milburn - for respondents
William Eldred Jackson - for respondents

Facts of the case

Question

Media for Eisen v. Carlisle & Jacquelin

Audio Transcription for Oral Argument - February 25, 1974 in Eisen v. Carlisle & Jacquelin

Audio Transcription for Opinion Announcement - May 28, 1974 in Eisen v. Carlisle & Jacquelin

Warren E. Burger:

The judgment and opinion of the Court in Number 73-203, Eisen against Carlisle and Jacquelin, will be announced by Mr. Justice Powell.

Lewis F. Powell, Jr.:

This case, here on certiorari from the Second Circuit, involves a complex class action suit, brought under Rule 23 of the Federal Rules of Civil Procedure.

The petitioner suing on behalf of himself and other odd-lot traders on the New York Stock Exchange charge respondent brokerage firms with violations of antitrust and securities laws.

The prospective class was extremely large, including some six million purchasers and sellers of odd-lot shares.

More than two million of these could be identified by name and address.

It was estimated that it would cost $225,000 to send notices to each of these identified parties.

The District Court, holding that individual notice was not required, had proved a plan for notice to be sent only to a limited number of the class and for notice by publication being directed to the remainder.

This form of notice would cause about $22,000.

The Court of Appeals reversed disapproving among other things, this limited and incomplete notice.

We agree with the Court of Appeals on this issue.

Rule 23 (C) (2) requires and here, I quote that the best notice practicable under the circumstances including individual notice to all members of the class who can be identified through reasonable effort, unless be sent such notice.

We think the import of this language is unmistakable.

The District Court’s plan for selected notice plus publication simply does not comply with the rule.

We remand the case with instructions to dismiss the class action unless a smaller class is defined and petitioner is willing to pay for notice to the numbers there of.

Mr. Justice Douglas filed an opinion dissenting in thought, in which Mr. Justice Brennan and Mr. Justice Marshall joined.

Warren E. Burger:

Thank you, Mr. Justice Powell.