Appellants' attack is directed at the supplemental provision of the district court's "Notice of Pendency of Class Action" requiring class members to opt in to obtain back pay.12 The district court undoubtedly realized that there are some class actions where it is necessary for class members who do not opt out "to take some affirmative action as a condition of ultimate recovery." 3B Moore's Federal Practice P 23.55 at 23-1161 (1975). The key word here is "ultimate." This has particular relevance to Title VII actions, wherein a bifurcated procedure is utilized to determine, first, liability and then relief. Swint v. Pullman-Standard, 539 F.2d 77, 94 (5th Cir. 1976); Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 733-34 (5th Cir. 1976); Baxter v. Savannah Sugar Ref. Corp., 495 F.2d 437, 443-44 (5th Cir. 1974). Although there may be some Title VII actions in which unnamed individual plaintiffs will have to come forward to establish their entitlement to portions of the recovery, such requirement should not be imposed upon them until necessary for adjudication. In this case, coming forward to establish an entitlement was futile in light of the initial determination by the district court that that defendant was not liable. Opting in was not necessary before the determination of liability. The district court apparently relied upon the language of 23(d)(2)13 for its opt-in requirement. Although 23(d)(2) might be read to impinge upon the preceding subsections of Rule 23, we cannot believe that it was intended to negate the clear thrust of the rule which is to minimize the requirement of active intervention by numerous members of an affected class.

Upon remand, the court should consider the claims of those class members who would have been excluded by their earlier failure to opt in for back pay purposes. It may be necessary to obtain some affirmative action before the final determination of appropriate relief. While not necessarily erroneous, the language of the supplemental provision is not especially informative as to what relief was available to the class members. The district court should inform class members that back pay is included among possible types of relief.

We REVERSE this part of the district court's judgment.

We AFFIRM the district court on the hiring practices issue; we REVERSE and REMAND on the no-discrimination findings as to Union Carbide's system of promotion and on the class action issue.

After further consideration of Robinson v. Union Carbide Co., No. 75-1008, September 10, 1976, the Court has withdrawn the section of its opinion entitled "Class Action Claim" and has substituted a new opinion. Because the majority opinion restricts too narrowly the discretion of district courts to gather information in class action suits, I file this special concurrence.

The plaintiffs-appellants brought a class action job discrimination case against the company's Materials Systems Division. The district court held that neither the hiring policies nor the job promotion practices of the division violated the Civil Rights Acts. We affirmed the holding about hiring but reversed that portion of the holding relating to job promotions, because the company had not satisfactorily rebutted the plaintiffs' statistical showing of racial discrimination.

The plaintiffs based their appeal, in part, on notice sent to the members of the class by the district court at the outset of the suit:

If you are black and an employee or have an outstanding job application with defendant . . . and desire other appropriate relief in addition to injunctive relief, you must notify the undersigned in writing . . . . If you desire to be included in the class for any such other appropriate relief and notify the undersigned or the Court of the same, you will be notified when the case is set on the merits, at which time you must appear and prove your claim in accordance with the law and be prepared to prove what efforts you have taken to mitigate your damages, if any.

The workers argue that this notice violates the opt-out provisions of Rule 23(c)(2) of the Federal Rules of Civil Procedure1 because it requires class members to take affirmative action to secure back pay or other damages. At first glance, the unfortunate wording of the supplemental notice provision appears to require members to take affirmative action to join the class. If the notice actually constituted an opt-in order, it would clearly violate Rule 23. See Tentative Draft, Manual for Complex Litigation 72-74 (fourth revision, July 21, 1976). Closer analysis of both the supplemental and primary notices reveals, however, that they do not require the plaintiffs to opt into the class action in violation of the Rule. As a result, I cannot accept the plaintiffs' objection to the notices, although I would remand them for further action by the district court on other grounds.

Rule 23, as amended in 1966, requires the trial court in a class action to issue an "opt-out" notice informing class members that they will be bound by the law suit unless they notify the court of their intention not to be bound. If they so notify the district judge, the judgment in the class action will neither affect them nor prevent them from filing a later suit on the same matter. The authors of the Rule preferred this approach over an "opt-in" procedure whereby members of the class would notify the district court if they desired inclusion in the suit. Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 397 (1967). The amendment therefore prevents potential class members from delaying their decision about whether to join the action until the case reaches judgment. Such "sideline sitting" would enable them to receive the benefits of a judgment in their favor and to avoid the res judicata effect of a decision against their interests. 3B Moore's Federal Practice P 23.55 at 23-1160 (1975). Now, they will be bound unless they "opt-out" at an early stage of the litigation.

The supplemental notice in this case does not violate the amendment to Rule 23(c)(2) because it does not require members to opt-into the class action in order to be bound by it. As the trial court explained in its primary notice,2 the class members were bound unless they notified the court of their desire to be excluded. The supplemental notice, directed only to those members who had not excluded themselves, merely conditioned the receipt of individualized non-injunctive relief on the submission and proof of the claim for such relief. If the members had not submitted their claims, they could not have brought other suits because, under the court's primary notice, the class action had res judicata effect upon all claims arising from the alleged job discrimination. Consequently, the two notices prevented sideline sitting and did not violate Rule 23(c)(2).

Correctly analyzed, the supplemental notice in Robinson arises from Rule 23(d) (2),3 not (c)(2). Because the authority to issue such notices is discretionary rather than mandatory, the question is whether the district court abused its discretion by issuing a supplemental notice that conditioned damage recovery on certain affirmative action by class members. I would hold that an abuse occurred because the notice burdens too severely the right of small claimants to benefit from the class action.

The class action device enables small claimants, who could not afford to bring individual law suits, to vindicate their common rights. Hawaii v. Standard Oil Co., 1972, 405 U.S. 251, 265-66, 92 S. Ct. 885, 31 L. Ed. 2d 184; Korn v. Franchard Corp., S.D.N.Y.1970, 50 F.R.D. 57, 58, rev'd on other grounds, 2 Cir. 1972, 456 F.2d 1206; cf. Rothman v. Gould, S.D.N.Y.1971, 52 F.R.D. 494, 496. This overriding policy supports the "opt-out" approach of the 1966 amendments. As Professor Kaplan has argued:

(R)equiring individuals affirmatively to request inclusion in the lawsuit would result in freezing out the claims of people especially small claims held by small people who for one reason or another, ignorance, timidity, unfamiliarity with business or legal matters, will simply not take the affirmative step. The moral justification for treating such people as null quantities is questionable. . . . It seems fair for the silent to be considered as part of the class.

Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 1967, 81 Harv.L.Rev. 356, 397-98.

Despite the strength of this policy, district courts have consistently tempered it with the recognition that damage remedies, even in class actions, should respond to harm actually suffered by class members. In a securities case the purchaser of ten shares may deserve twice the recovery of the purchaser of five shares. Similarly, in a job discrimination action, a worker unjustifiably denied three promotions may deserve more back pay than another worker denied only one advancement. To effect such remedies, then, courts must request class members to explain the facts of their various claims. See, e. g., Philadelphia Electric Co. v. Anaconda American Brass Co., E.D.Pa.1968, 43 F.R.D. 452, 459; Harris v. Jones, D.Utah 1966, 41 F.R.D. 70, 74. Furthermore, early discovery of the extent and type of claims can expedite substantially the management of a class action. For instance, in Arey v. Providence Hospital, D.D.C.1972, 55 F.R.D. 62, the court requested early feedback from class members in an employment discrimination suit. Judge Flannery thought the information:

would be instructive and aid the court by providing information as to the scope of the class and the scope and diversity of discrimination claims, thereby allowing the court to rule more intelligently in future determinations regarding the boundaries of the class, the need for sub-classes, or even a re-evaluation of the class status designation itself. In the court's mind, the fact that this action is brought under Title VII and involves individual rights championed in the public interest is supportive of the court's desire for as much information as possible before making rulings affecting these rights.

Early identification of this information will also encourage accurate settlement discussions.

The task facing district judges as they promulgate 23(d)(2) notices is to reconcile the conflicting policies. Although the decision-making must proceed case by case, a few general observations can help guide the exercise of district court discretion. First, proper management of class actions requires that district judges be granted the authority under Rule 23(d)(2) to request class members to file statements of their claims. Knight v. Board of Education, S.D.N.Y.1969, 48 F.R.D. 108, 112-14; Iowa v. Union Asphalt & Roadoils, Inc., S.D.Iowa 1968, 281 F. Supp. 391, 403-04; Harris v. Jones, D.Utah 1966, 41 F.R.D. 70, 74. Second, because this information can assist district courts as they structure sub-classes, reexamine class designations, or promote prompt settlements and other dispositions, district judges should be able to request that class members respond to supplemental notices at early stages of litigation.4 Arey v. Providence Hospital, D.D.C.1972, 55 F.R.D. 62, 71-72. Third, the courts, when necessary, should be able to enforce their requests for information by limiting recovery to those who respond. Korn v. Franchard Corp., 2 Cir. 1972, 456 F.2d 1206, 1210-11, illustrates the problems created by optional claim statements. So few class members in this securities case responded to the request for information that the defendants moved to dissolve the class. Although the district court wisely denied the motion, the valid purposes for which it issued the supplemental notice could hardly have been attained when 75 percent of the class failed to return the questionaire and another 15 percent did not answer it completely. Id.; Korn v. Franchard Corp., S.D.N.Y.1970, 50 F.R.D. 57, 58-59. Consequently, we cannot say as a general rule that enforcement of claim statement requests necessarily exceeds the discretion granted district judges under Rule 23(d)(2). A court may decide that enforcement is not needed in various cases or stages of litigation. Arey v. Providence Hospital, D.D.C.1972, 55 F.R.D. 62, 72. But given the substantial need for accurate information about claims, district courts should retain discretionary enforcement authority.

Because of the basic purpose of the class action, however, district courts cannot exercise unlimited discretion to issue (d)(2) notices. The judiciary must always be sensitive to the need of citizens to protect their common rights while avoiding the expense and procedural burdens of major litigation. To protect this interest, courts should not issue (d)(2) notices that require complicated legal responses. First, notices should not place the burden on class members to discover what remedies might be available to them. Open ended requests for them to come forward and make their cases would require class members to seek legal advice, a substantial financial burden, to discover whether they had cases to advance. The court itself should set forth the alternatives, as well as any other points of law necessary to understand the notice. Second, the court should limit the required responses by class members to factual matters that laymen can easily supply. See Knight v. Board of Education, S.D.N.Y.1969, 48 F.R.D. 108, 113 (a sample questionaire). Third, the court should provide the easiest means practicable for the members to register their responses. Requiring personal appearances, at least at early stages of the litigation, would generally impose too great a burden, especially where written responses would suffice. In addition, any requests for writings should include, whenever possible, a form that the members can easily fill out and return. By instituting such precautions, the district judge can satisfy both the need for information and the requirement that recovery by class members not be too severely conditioned on participation in the litigation.

In Robinson the supplemental notice exacts too much from the class members in two respects. First, the notice does not ask for specific factual information that laymen can supply without reliance on legal counsel. By leaving class members to discover on their own whether any remedies might be available to them, the court burdens them with a legal determination. This discovery process would be expensive and time consuming for laymen, who probably would have to consult lawyers. The notice, therefore, impermissibly encumbers the rights of class members to benefit from the action. Second, the court announced too early in the litigation that the members would have to appear in court to prove their claims. Because personal appearances impose significant burdens, the request for them should not occur until the district court has determined that the judgment in the action requires them. Only if written submissions and the trial record fail to provide an adequate basis to determine remedies should class members be required to argue their cases in person.

For these reasons the district court abused its discretion by conditioning ultimate recovery of noninjunctive relief on the workers' responses to the supplemental notice. Because we have already remanded the case, I would merely add this conclusion to the remand order and instruct the court to issue a new supplemental notice, consistent with this opinion, to those class members who may deserve recovery of back pay because of discrimination in job promotions. A sample notification appears in the margin.5