Letter and article by Fred Burnside (Davis Wright Tremaine) supporting a class action superiority rule amendment

Fred Burnside urges consideration of an amendment to FRCP 23(b)(3) providing federal trial courts with the discretion to consider out-of-court resolutions when determining whether a class action is a “superior” method of claim resolution. Burnside’s letter to the Advisory Committee on Civil Rules also transmits his forthcoming law review article on the topic, titled “Catch 23: Putting Superior Back Into the Superiority Prong of Rule 23(b)(3),” 38 Loyola Consumer Law Review 1 (2026).

Burnside’s article cites Oregon’s class-action rule as evidence that a clarification of the superiority prong of Rule 23(b)(3) is modest and achievable. Oregon’s rule requires that, before a class action for damages may proceed, the plaintiff must make a request for relief and, if the defendant provides an adequate remedy, class treatment is deemed not superior. Oregon case law demonstrates that providing this tool to judges saves time and conserves judicial resources.

Burnside is the co-chair of the Class Action Defense Group at Davis Wright Tremaine LLP, and has a national complex litigation practice. Based in Seattle, Washington, Burnside is co-chair of the ABA's Annual National Institute on Class Actions, editor of the ABA Class Action Committee's Annual, "The Law of Class Actions: Fifty-State Survey" (and author of the Oregon and Washington chapters), and a member of the American Law Institute.

Please click here to read letter.