Durant Brockett, et al. v. Matthew E. Orso, as Receiver for REX Venture Group, LLC, dba ZeekRewards.com

In Hansberry v. Lee, 311 U.S. 32, 40 (1940), this Court held that it would violate the Due Process Clause of the Fourteenth Amendment to bind litigants to a state court judgment in a case where they were not parties and were not adequately represented. The Fourth Circuit’s decision presents the same question in the somewhat different context of defendant class actions. The Fourth Circuit agreed the district court erroneously departed from the dictates of Rule 23 of the Federal Rules of Civil Procedure by failing to appoint class counsel and by failing to conduct a Rule 23(g) adequacy of counsel analysis when it belatedly appointed counsel. Nonetheless, the Fourth Circuit affirmed the $181 million judgment against 6,800 class members, based on an erroneous determination that the argument was not sufficiently preserved and that it was too late to correct the error. In so ruling, the Fourth Circuit departed from key precedent of this Court and created an insoluble conflict with relevant decisions of other circuits. This case thus raises an important issue not yet addressed by this Court, but that is sure to repeat itself given the increasing frequency of defendant class actions. The specific questions presented are: • Is the Due Process Clause of the Fifth Amendment violated by the entry of a final judgment against a class of absent defendants, if the absent defendants were not parties to the federal class action litigation and were not adequately represented?