On Dec. 12, 2017, the New York Court of Appeals issued a seminal decision that will change the landscape of class action litigation. In Desrosiers v. Perry Ellis Menswear, Nos. 121 and 122, 2017 WL 6327106 (N.Y. Dec. 12, 2017,) the Court of Appeals held that under CPLR §908, upon the dismissal, discontinuance or settlement of any class or putative class action, notice must be given to class members in such manner as the court dictates. This means that even if a class is not certified, the parties must inform class or putative class members that the case has been resolved. Not only is this likely to confuse individuals who might not know about the litigation nor be bound by its results, but it also will allow unscrupulous plaintiffs’ attorney to solicit potential clients and tax already precious judicial resources.
Background
Desrosiers arose from two separate cases concerning CPLR §908, which states that “[a] class action shall not be dismissed, discontinued or compromised without the approval of the court [and that] [n]otice of the proposed dismissal, discontinuance or compromise shall be given to all members of the class in such manner as the court directs.” The main issue in both cases was whether CPLR §908 applies only to cases that have been certified as a class action or if it also applied to putative class actions where a court has not made the determination of whether the case is appropriate for class action status.
