Patricia A. Williams v. Burlington N., Inc., 832 F.2d 100 (7th Cir. 1987). · Go Syfert
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Patricia A. Williams v. Burlington N., Inc., 832 F.2d 100 (7th Cir. 1987). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, last quoted 1996 · 2 courts · …provided plaintiff with the equivalent due process protection that would be accorded to a rule (23)(b)(3) class member at p. 104 ≈ altered
49 citation events (11 in the last 25 years) across 14 distinct courts.
Strongest positive: In re National Collegiate Athletic Ass'n Student-Athlete Concussion Injury Litigation (ilnd, 2016-01-26)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 31 distinct citers. How cited ↗
discussed Cited as authority (rule) In re National Collegiate Athletic Ass'n Student-Athlete Concussion Injury Litigation
N.D. Ill. · 2016 · confidence medium
In Williams v. Burlington Northern, Inc., 832 F.2d 100, 101 (7th Cir.1987), the district court granted certification of a Title VII class under Rule 23(b)(2) and required notice and the ability of class members to opt out.
cited Cited as authority (rule) Roe v. Bridgestone Corp.
S.D. Ind. · 2009 · confidence medium
See Allen v. International Truck & Engine Corp., 358 F.3d 469, 470-71 (7th Cir.2004); Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir.1987).
discussed Cited as authority (rule) Greg Allen v. International Truck and Engine Corporation
7th Cir. · 2004 · confidence medium
See, e.g., Lemon, 216 F.3d at 582; Williams v. Burlington Northern, Inc., 832 F.2d 100, 103-04 (7th Cir.1987); De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 233 (7th Cir.1983); Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 627-28 (5th Cir.1999).
cited Cited as authority (rule) Palmer v. Combined Insurance Co. of America
N.D. Ill. · 2003 · confidence medium
Ingersoll, 195 F.3d at 898 (citing Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir.1987)).
cited Cited as authority (rule) Demint v. Nationsbank Corp.
M.D. Fla. · 2002 · confidence medium
Co., Inc., 78 F.3d 1533 , 1536 (11th Cir.1996); Silber v. Mabon, 18 F.3d 1449, 1455 (9th Cir.1994); Williams v. Burlington Northern, Inc., 832 F.2d 100,102 (7th Cir.1987); Nat’l Student Mktg.
discussed Cited as authority (rule) James Henderson v. Gen. American Life
8th Cir. · 2001 · confidence medium
Co., Inc., 78 F.3d 1533 , 1538 (11th Cir. 1996) (per curiam); Silber v. Mabon, 18 F.3d 1449, 1455 (9th Cir. 1994); Williams v. Burlington Northern, Inc., 832 F.2d 100, 102 (7th Cir. 1987); In re Nat’l Student Mktg.
cited Cited as authority (rule) Lemon v. International Union of Operating Engineers, Local No. 139
7th Cir. · 2000 · confidence medium
See Jefferson, 195 F.3d at 898-99 ; Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir.1987); see also Eubanks v. Billington, 110 F.3d 87, 96 (D.C.Cir.1997).
cited Cited as authority (rule) Jeff Lemon, Karen Meyer, John Duncan, Odell Williams, Virgil Eiland, Pat Haynes, Craig Anderson, Shirley Nyman and Franklin Edmonds v. International Union of Operating Engineers, Local No. 139, Afl-Cio
7th Cir. · 2000 · confidence medium
See Jefferson, 195 F.3d at 898-99 ; Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir. 1987); see also Eubanks v. Billington, 110 F.3d 87, 96 (D.C.
cited Cited as authority (rule) Marcello, James J. v. United States
7th Cir. · 2000 · confidence medium
See Federal Rules of Civil Procedure 58 and 79(a); Federal Rule of Appellate Procedure 4(a) and (b); Williams v. Burlington N., Inc., 832 F.2d 100, 102 (7th Cir. 1987).
cited Cited as authority (rule) United States v. James Marcello and Anthony Zizzo
7th Cir. · 2000 · confidence medium
See Federal Rules of Civil Procedure 58 and 79(a); Federal Rule of Appellate Procedure 4(a) and (b); Williams v. Burlington N., Inc., 832 F.2d 100, 102 (7th Cir.1987).
discussed Cited as authority (rule) Messier v. Southbury Training School
D. Conn. · 1998 · confidence medium
See County of Suffolk, 907 F.2d at 1302 (declaring that “Rule 23 does authorize a district court to allow a class member to opt out of a Rule 23(b)(1)(B) class action under some circumstances”); Eubanks v. Billington, 110 F.3d 87, 94 (D.C.Cir.1997) (holding that “the language of Rule 23 is sufficiently flexible to afford district courts discretion to grant opt-out rights in (b)(1) and (b)(2) class actions”); Crawford v. Honig, 37 F.3d 485 , 487 n. 2 (9th Cir.1994) (same); Williams v. Burlington N., Inc., 832 F.2d 100, 103 (7th Cir.1987) (same); Penson v. Terminal Transp.
discussed Cited as authority (rule) Walter Woodburn Eubanks v. James H. Billington, Tommy Shaw v. James H. Billington (2×) also: Cited "see"
D.C. Cir. · 1997 · confidence medium
See Crawford v. Honig, 37 F.3d 485 , 487 n. 2 (9th Cir.1995); Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir.1987), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988); Penson v. Terminal Transport Co., 634 F.2d 989, 994 (5th Cir.1981).
discussed Cited as authority (rule) Thompson v. Edward D. Jones & Co.
8th Cir. · 1993 · confidence medium
See, e.g., Silber v. Mabon, 957 F.2d 697, 700 (9th Cir.1992) (plaintiff class member may move for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(4) on the grounds that the proposed settlement was void as to him because he had not received sufficient notice); Williams v. Burlington Northern, Inc., 832 F.2d 100, 102-03 (7th Cir.1987), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988) (court denied plaintiff's motion to reopen class action, withdraw her claim and opt-out under Fed.R.Civ.P. 6(b)(2) or, in the alternative, to be relieved from final judgment in the class actio…
discussed Cited as authority (rule) Thompson v. Edward D. Jones & Co.
8th Cir. · 1993 · confidence medium
See, e.g., Silber v. Mabon, 957 F.2d 697, 700 (9th Cir.1992) (plaintiff class member may move for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(4) on the grounds that the proposed settlement was void as to him because he had not received sufficient notice); Williams v. Burlington Northern, Inc., 832 F.2d 100, 102-03 (7th Cir.1987), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988) (court denied plaintiffs motion to reopen class action, withdraw her claim and opt-out under Fed.
discussed Cited as authority (rule) In Re: General American Life Insurance Company Sales Practices Litigation Lewis & Ellis, Inc. Karen Shapiro, Movants, James Henderson
8th Cir. · 1992 · confidence medium
Co., Inc., 78 F.3d 1533 , 1538 (11th Cir.1996) (per curiam); Silber v. Mabon, 18 F.3d 1449 , 1455 (9th Cir.1994); Williams v. Burlington Northern, Inc., 832 F.2d 100, 102 (7th Cir.1987); In re Nat’l Student Mktg.
discussed Cited as authority (rule) Williams v. Lane
N.D. Ill. · 1990 · confidence medium
As Opinion I explicitly recognized (see the language cited and quoted in n. 4 to this opinion) and numerous cases have confirmed (see, e.g., Williams v. Burlington Northern, Inc., 832 F.2d 100, 103-04 (7th Cir.1987) 6 ), certification under Rule 23(b)(2) may be appropriate even where plaintiffs seek damages, as long as injunctive relief is additionally appropriate.
examined Cited as authority (rule) Nottingham Partners v. Dana (3×) also: Cited "see, e.g."
Del. · 1989 · confidence medium
Robins Co. Inc., 880 F.2d 709, 745-746 (4th Cir.1989); Williams v. Burlington Northern, Inc., *1101 832 F.2d 100, 104 (7th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988).
discussed Cited as authority (rule) Norman Rosser, as of the Estate of Evelyn Rosser, and Norman Rosser, Individually v. Chrysler Corporation, Acco Babcock, Inc., and John Koepele
7th Cir. · 1989 · confidence medium
United States v. Indrelunas, 411 U.S. 216, 221 , 93 S.Ct. 1562, 1564 , 36 L.Ed.2d 202 (1973) (where prior docket entry only reflected liability, and it was not recorded on a separate document, no final decision for purposes of appeal existed until formal judgment was entered); Hatch, 854 F.2d at 982 ; Williams v. Burlington Northern, Inc., 832 F.2d 100, 102 (7th Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988) (time for appeal under Fed.R.App.P. 4(a) does not begin to run until the order is entered on the docket).
cited Cited "see" Ludgood v. APEX Marine Corp. Ship Management
5th Cir. · 2002 · signal: see · confidence high
Fed.R.Civ.P. 58; see, Williams v. Burlington Northern, Inc., 832 F.2d 100 (7th Cir.1987).
discussed Cited "see" Missey Jefferson, on Behalf of Themselves and a Class of Others Similarly Situated, Plaintiffs-Respondents v. Ingersoll International Inc., Defendants-Petitioners
7th Cir. · 1999 · signal: see · confidence high
See Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir. 1987). 9 If Rule 23(b)(2) ever may be used when the plaintiff class demands compensatory or punitive damages, that step would be permissible only when monetary relief is incidental to the equitable remedy--so tangential that the principle of Beacon Theatres and Dairy Queen does not apply, and that the due process clause does not require notice.
cited Cited "see" Jefferson v. Ingersoll International Inc.
7th Cir. · 1999 · signal: see · confidence high
See Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir.1987).
discussed Cited "see" Buycks-Roberson v. Citibank Federal Savings Bank
N.D. Ill. · 1995 · signal: see · confidence high
See generally Williams v. Burlington Northern, Inc., 832 F.2d 100 , 103 n. 2 (7th Cir.1987) (bifurcating ease may be best solution where plaintiff class is not sufficiently homogenous to ensure fairness in consideration of the damage claims of absent members); Williams v. Lane, 129 F.R.D. 636, 640-41 (N.D.Ill.1990) (“many courts have required that the case be bifurcated to allow the injunctive relief to be adjudicated under Rule 23(b)(2) and allow the damage elaims to proceed separately ... or as individual claims”).
cited Cited "see" Rufus A. Averhart, Also Known as Zolo Agona Azania v. John T. Shettle
7th Cir. · 1994 · signal: see · confidence high
See Williams v. Burlington N., Inc., 832 F.2d 100, 102 (7th Cir.1987), cert. denied, 485 U.S. 991 (1988).
discussed Cited "see" White v. National Football League
D. Minnesota · 1993 · signal: see · confidence high
Id. ¶ 3.4, at 1411-12; see Williams v. Burlington Northern, Inc., 832 F.2d 100, 104 (7th Cir.1987) (although plaintiff did not have the right to opt out, court “provided [plaintiff] with the equivalent due process protection that would be accorded to a Rule (23)(b)(3) class member”), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988); cf. Robertson v. National Basketball Ass’n, 556 F.2d 682 , 685-86 (2d Cir.1977) (discussing due process rights of mandatory class members prior to Shutts).
cited Cited "see" Findley v. Blinken (In Re Joint Eastern & Southern District Asbestos Litigation)
S.D.N.Y. · 1991 · signal: see · confidence high
See Williams v. Burlington N., Inc., 832 F.2d 100, 104 (7th Cir.1987), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988).
discussed Cited "see, e.g." Stewart v. Rubin
D.D.C. · 1996 · signal: see, e.g. · confidence medium
See, e.g., Williams v. Burlington, Northern, Inc., 832 F.2d 100, 104 (7th Cir.1987) (even though plaintiff did not have right to opt out, court “provided [plaintiff] with the equivalent due process protection that would be accorded to a Rule (23)(b)(3) class member”), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988); National Football League, 822 F.Supp. at 1411-12 . 54.
discussed Cited "see, e.g." Adams v. Robertson
Ala. · 1995 · signal: see, e.g. · confidence medium
See e.g., Williams v. Burlington Northern, Inc., 832 F.2d 100, 103-04 (7th Cir.1987); Elliott v. Weinberger, 564 F.2d 1219 , 1229 n. 14 (9th Cir.1977); Nottingham Partners v. Dana supra; Nottingham Partners v. Trans-Lux Corp., supra; Wetzel v. Liberty Mutual Insurance Co., supra; Kincade v. General Tire & Rubber Co., supra; Robertson v. National Basketball Association, 556 F.2d 682, 685-86 (2nd Cir.1977); see also, Penson v. Terminal Transport Co., 634 F.2d 989 (5th Cir.1981).
discussed Cited "see, e.g." Smith v. Shawnee Library System
7th Cir. · 1995 · signal: see also · confidence medium
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 , 94 S.Ct. 2140, 2150 , 40 L.Ed.2d 732 (1974); Gert v. Elgin Nat'l Indus., Inc., 773 F.2d 154, 159-60 (7th Cir.1985); see also Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir.1987) (discussing notice requirement), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988). 18 On July 15, 1991, the magistrate judge amended his earlier certification in a two-line order at Smith's request, adding "certification under Rule 23(b)(3)" as well as the new claim for money damages.
discussed Cited "see, e.g." Smith v. Shawnee Library System
7th Cir. · 1995 · signal: see also · confidence medium
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 , 94 S.Ct. 2140, 2150 , 40 L.Ed.2d 732 (1974); Gert v. Elgin Nat’l Indus., Inc., 773 F.2d 154, 159-60 (7th Cir.1985); see also Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir.1987) (discussing notice requirement), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988).
discussed Cited "see, e.g." White v. National Football League (2×)
D. Minnesota · 1993 · signal: see, e.g. · confidence medium
See, e.g., Williams v. Burlington *1412 Northern, Inc., 832 F.2d 100, 104 (7th Cir. 1987) (even though plaintiff did not have right to opt out, court “provided [plaintiff] with the equivalent due process protection that would be accorded to a Rule (23)(b)(3) class member”), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988); cf. Robertson, 556 F.2d at 685-86 (discussing due process rights of mandatory class members prior to Shutts).
cited Cited "see, e.g." Larry W. REYNOLDS, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee
7th Cir. · 1988 · signal: see also · confidence medium
Cos., 799 F.2d 364, 366 (7th Cir.1986); See also, Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir.1987).
Retrieving the full opinion text from the archive…
Patricia A. WILLIAMS, Plaintiff-Appellant,
v.
BURLINGTON NORTHERN, INC., Defendant-Appellee
86-1616.
Court of Appeals for the Seventh Circuit.
Nov 19, 1987.
832 F.2d 100
David A. McGuire, Stone, McGuire & Benjamin, Chicago, Ill., for plaintiff-appellant., Christopher T. Lutz, Steptoe & Johnson, Washington, D.C., for defendant-appellee.
Cudahy, Posner, Kanne.
Cited by 35 opinions  |  Published
KANNE, Circuit Judge. *

Patricia A. Williams appeals the district court’s denial of her motion for relief from a consent decree which covered a class action employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. Ms. Williams was a member of the plaintiff class below in E.E.O.C. v. Burlington Northern, Inc., cause No. 78 C 269 (N.D. Ill.), M.D.L. 374. That class was certified under Fed.R.Civ.P. 23(b)(2). In February of 1984, the appellant received a notice of entitlement to recover damages in that action. The appellant also received notice of her right to object to the proposed consent decree. The district court appointed a special master to resolve objections to the proposed consent decree. However, Ms. Williams filed no objection. Instead, she submitted a claim form in M.D.L. 374 setting forth at great length her basis for recovery. On April 2, 1984, the consent decree was approved after a final fairness hearing. No appeals were filed regarding the consent decree.

In the meantime, on March 8, 1984, Ms. Williams had filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discriminatory activi[*102] ties paralleling those covered in M.D.L. 374. Subsequently in September of 1984 she filed a suit in the United States District Court for the Western District of Tennessee. The defendant, Burlington Northern (BN), filed a motion to dismiss that case on the grounds that the consent decree in M.D.L. 374 resolved her claim. That motion was still pending at the time the briefs were filed in this appeal.

Returning to the Northern District of Illinois, Ms. Williams then filed her motion to be excluded from the class or relieved from judgment in M.D.L. 374. This motion was originally filed February 20, 1985, but it was not properly served until sometime in January, 1986. On March 14, 1986, Judge Leighton denied the appellant’s motion. This order was entered on the docket in the District Court Clerk’s Office on March 17, 1986. On April 15, 1986, the appellant filed her notice of appeal.

Ms. Williams contends on appeal that the district court abused its discretion when it certified the class in M.D.L. 374 under Rule 23(b)(2). Ms. Williams suggests that the district court should have given her and the other class members the option to be excluded from the class pursuant to Fed.R. Civ.P. 23(d) (as is required of suits certified under Rule 23(b)(3)). In essence, the appellant argues that the monetary relief aspect of M.D.L. 374’s consent decree was not properly certified under Rule 23(b)(2). Rather, it should have been certified under Rule 23(b)(3) due to the potentially antagonistic positions of the class members vis-a-vis allocation of the settlement fund.

I.

The appellee contests this court’s jurisdiction to hear this appeal. They contend that Ms. Williams filed her notice of appeal thirty-two days after the district court entered its order denying her motion. Thus BN contends that Fed.R.App.P. 4(a)(1) “ousts this court of jurisdiction.” Ms. Williams replies that she had sixty days to appeal since an agency of the United States (the Equal Employment Opportunity Commission) was a party to the underlying action.

“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional,’ ” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 62, 103 S.Ct. 400, 404, 74 L.Ed.2d 225 (1982) (citing Bouder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978)). Thus, if Ms. Williams’ notice of appeal was tardy this court is without jurisdiction. We will not address Ms. Williams’ argument because the appeal notice was filed within thirty days. Judge Leighton’s order dated March 14, 1986 was not entered on the docket in the clerk’s office until March 17, 1986. The date of reference for the purpose of time calculation under Fed.R.App.P. 4(a) is the date the order was entered on the docket, not the date the order was signed. Loy v. Clamme, 804 F.2d 405, 407 (7th Cir.1986); Stelpflug v. Federal Land Bank of St. Paul, 790 F.2d 47 (7th Cir.1986). In this case Ms. Williams filed her notice of appeal within thirty days of March 17, 1986, and this court has jurisdiction to entertain this appeal.

II.

Initially, we note that there exists a major discrepancy between the arguments Ms. Williams advanced to the district court and the arguments she now presents to this court. Ms. Williams’ request for relief in the district court was entitled “Motion of Patricia A. Williams To Be Excluded From The Class Or, In The Alternative, For Relief From Judgment”. It is readily apparent from the motion and memoranda in support that she was seeking relief on the basis of “excusable neglect” under either Fed.R.Civ.P. 6(b)(2) or Fed.R.Civ.P. 60(b). Through the application of Rule 6(b)(2) she sought to reopen the class action, withdraw her claim and opt-out as a class member. In the alternative, by use of Rule 60(b), Ms. Williams asked to be relieved of the final judgment in the class action so she could continue her separate action in federal court in Tennessee. In either case the determination of excusable neglect by the district judge was a prerequisite.

[*103] In her memorandum in the district court, Ms. Williams acknowledged that before she could be allowed to be excluded from the class or be relieved from judgment she would first have to show excusable neglect. The district judge in his order denying relief properly focused on factors relating to the threshold issue of excusable neglect. He did not address the obviously untimely and pendant assertion of Ms. Williams in her motion — that the named plaintiffs in the class action had interests antagonistic to hers.

Judge Leighton found no excusable neglect. As a result Ms. Williams was deprived of an opportunity to reopen the case and be excluded from the class and she received no relief from the final judgment in the class action.

Now, on appeal, Ms. Williams completely fails to address the issue of excusable neglect under either Rule 6(b)(2) or Rule 60(b). Rather, she focuses her appellate argument on the merits of her claim of a right to opt-out of the class, thus bootstrapping herself over the procedural impediment.

The appellant’s argument fails to address the grounds that proved dispositive in the district court. Ms. Williams has not shown that it was error for the district court to find no excusable neglect. Therefore, even if this court were to rule that the class below was certified improperly we still could not order that Ms. Williams be allowed to opt-out. Arguments on appeal must address those issues that were deemed dispositive in the district court. On appeal, parties are not permitted to leap-frog over issues, ignoring adverse rulings on threshold issues and plunging directly into the issues they seek to have reviewed. Here, the appellant simply did not address the basis of the holding in the district court. See Clark v. Maurer, 824 F.2d 565, 567 (7th Cir.1987) (“The appeal brief does not confront or contest this dispositive finding_”); Spiegal v. Continental Illinois National Bank, 790 F.2d 638, 650 (7th Cir.1986) (“Appellant’s brief failed to explain how the district court decision was in error.”).

III.

Assuming for the sake of argument that Ms. Williams had mounted a timely attack against the consent decree before the district court, we can not say that the district judge abused his discretion by not bifurcating the class certification between the equitable and monetary phases of relief in M.D.L. 374.

The plaintiff class was certified under Fed.R.Civ.P. 23(b)(2) which contains no provision for “opting out” unlike class certification under Rule 23(b)(3). [1] While the district court could have certified the relief phase of M.D.L. 374 under Rule 23(b)(3) or specifically provided for opting out under Rule 23(d), it did not. [2] The appellant now suggests to this court that the district court should have treated M.D.L. 374 as a hybrid class action which required Rule 23(b)(2) certification for the equitable relief portion of that suit and then certified the monetary relief portion of that action under Rule 23(b)(3) with its attendant “opt-out” provisions. Appellant cites Holmes v. Continental Can, 706 F.2d 1144 (11th Cir.1983), as support for such bifurcated treatment. While we agree that such two-tiered certification is permissible and perhaps even desirable in certain instances, [3] the safeguards employed by the district court were the functional equivalent of those offered by Rule 23(b)(3).

[*104] The purpose of the opt-out provision required in Rule 23(c)(2) for classes certified under Rule 23(b)(3) is to ensure constitutionally adequate due process. Of prime concern in an action under Rule 23(b)(3) is the adequacy of representation. WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 1786 (1986). Here, the district court, while dealing with a class not certified under Rule 23(b)(3), provided the appellant with the equivalent due process protection that would be accorded to a Rule 23(b)(3) class member.

In this case, Judge Leighton gave all class members the opportunity to voice any objections to the proposed settlement. Further, he appointed a special master to deal with any objections to the settlement proposal. Finally, he held a final fairness hearing before he approved the consent decree. Ms. Williams did not avail herself of any of the opportunities presented to her. [4] From a practical standpoint, the opportunities to object in this case were tantamount to the protections envisioned by Fed.R.Civ.P. 23(c)(2). The district court employed measures that provided adequate protection from any potentially antagonistic interest between class members.

Here, the class was adequately represented by counsel, the class members were given notice of opportunity to object to the proposed settlement, the court established a mechanism to hear and resolve any objections, and the court held a final fairness hearing to determine the fairness, adequacy and reasonableness of the consent decree before approving it. Additionally, the appellant had the opportunity (which has long since passed) to have the fairness and adequacy of this consent decree reviewed on appeal. Ms. Williams took advantage of none of these opportunities and she should not now be allowed to mount a belated attack on a constitutionally acceptable consent decree.

IV.

Ms. Williams has failed to present this court with the threshold issue of excusable neglect which formed the basis of the ruling of the district court. Additionally, we find the procedure employed by the district court gave the appellant the same protection that she would have received if the class were certified under Fed.R.Civ.P. 23(b)(3). Accordingly, we AFFIRM the judgment of the district court.

*

The Honorable Michael S. Kanne, was a District Judge for the U.S. District Court, Northern District of Indiana sitting by designation when this appeal was submitted. Prior to this opinion’s release he was elevated to Circuit Judge for this Circuit.

1

. Rule 23(c)(2) provides that "[i]n any class action maintained under subdivision (b)(3), the court shall ... advise each member that (A) the court will exclude him from the class if he so requests by a specified date”.

2

. Fed.R.Civ.P. 23(d)(2) allows that the court "may make appropriate orders ... (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate to intervene and present claims or defenses, or otherwise to come into the action”.

3

.See, for example, Allen v. Isaac, 100 F.R.D. 373, 375-77 (N.D.Ill.1983).

4

. This alone distinguishes this case from the Holmes case, supra, where numerous members did try to opt-out. It also cannot be said that the class members' interests herein were antagonistic. The original fund for compensation was ten million dollars (| 10,000,000.00) but the defendants paid over eleven million dollars ($11,-000,000.00) so the pool of funds does not appear to have been fixed in size.