On Feb 10, 7:33 am, "nomail1...@hotmail.com" <nomail1...@hotmail.com> wrote:
[OP gets notices of potential class action settlements]
> One of the options is to exclude myself from the class.
For purposes of SETTLEMENT, that is. You either are or are not, by definition, a member of the affeced class, if you meet all the qualifications to be a member: e.g. "all persons who bought a z-27 SuperWidget from XYZ Widget Co. between January 1, 1998 and December 31, 2002" for example. Either you did or didn't buy a SuperWidget during that time period.
> Other than personal principles and loyalties, perhaps,
That has nothing to do with it. If you do nothing, you remain a class member for purposes of being BOUND BY the settlement, meaning you are then PRECLUDED from bringing a separate suit for your own separate injury against that defendant arising from the subject matter of the class action, e.g. your purchase of a defective SuperWidget. As you will see below, it is only the NON-loyal customers (the ones who want to sue the bastards for MORE than the class action would give them) who have any reason to opt out of the class.
> is there
> any reason that a person should consider excluding him/herself
> from the class?
Yes. If your lawyer (PLEASE don't make a decision to exclude yourself from a class without a lawyer) recommends that your case is probably worth a lot MORE than the proposed class action settlement would give you, AND if both he, and you, are willing to take on the burden of investigating and pursuing a separate lawsuit to get your OWN separate case handled outside of the class action framework, then by all means you should opt out. Now, if all you would get out of this settlement is a coupon worth a few bucks toward your next purchase of a SuperWidget, and if that's really all you lost, no real big harm would be done either way, but why bother to take the time to file the papers to exclude yourself from the class? Even if you remain a class member and are thereby bound by the terms of the settlement once it gets approved, no one is forcing you to accept the coupon, or to be anything other than a continued loyal customer of XYZ Widgets if that's what you want to be.
But take, for example (even though it wasn't EXACTLY a "class action"), the no-fault compensation fund that the government offered to families of victims of the 9-11-01 attacks, which in most cases amounted to at least several hundred thousands of dollars per family even for a janitor or sandwich boy, sometimes millions each (don't forget, a lot of the people killed were high-priced Wall Streeters and the value of their death claims was higher based on the lost earning capacity they would have provided to their families if they had lived). But to get that settlement, the families had to give up the right to sue anyone (other than the terrorist entities responsible, but lots of luck with that) for that loss. Most families did take the "class" settlement, but a significant number opted out before the claim filing deadline and are pursuing claims in court against the affected airlines, security screeners, etc. for their negligence in permitting the disaster to happen. AFAIK all of those cases are still pending and are nowhere near resolution, but obviously those families' lawyers felt they had a shot at a settlement worth many times more than what the government fund was offering -- otherwise it would have been stupid to opt out and pass up the government's generous offer.
> Is there any downside to participating in the
> settlement.
If you don't opt out, you are bound by the terms of the settlement, whether those terms are good or bad for you. If you DO opt out, you are on your own, and have to pursue your own remedies separately in a timely separate suit if you choose to do so (which is the only sensible reason anyone would choose to opt out IMO).
> Or is the option merely following legal requirements to the letter
That too, from the class representatives' viewpoint. The named plaintiffs in the class suit (and their lawyers), as representatives of the class, have a legal duty to provide notice of the class action to all affected class members, as well as to notify you of a potential settlement before it becomes final so you can opt out at that point if you choose.
That is one of the procedural due process requirements of pursuing a class action, and also one of the reasons why class actions are a horrendously large expense for the involved attorneys to prosecute -- the postage and paper alone, to notify a class with hundreds of thousands or even millions of members, is a huge cost. Only the most well-heeled and capable attorneys even attempt to handle class actions. Obviously, boys and girls, you should not try this at home WITHOUT an attorney.
From the defendant's point of view, they would like as many class members as possible to REMAIN bound by the settlement, so they can take care of their liabilities with one fell swoop and not face a horde of separate suits. In fact, if too many class members opt out, that may screw the settlement altogether since the defendant wouldn't see any benefit in paying a few million bucks to the class representatives' lawyers (of which they would typically take the customary 1/3 off the top, plus reimbursement for their huge expenses, distributing the rest to the affected class members) if they would still face millions of dollars in additional exposure to individual suits. This likewise works to make the defendant ensure that any proposed class action settlement will be fair enough to the affected class members that most of them will NOT opt out, thus capping the company's potential outlay at the known and agreed figure.
> ("you can lead a horse to water, but you are not permitted to
> make him drink")?
Sort of, but even being part of a class action class doesn't mean you have to DO anything. It just means that, if a settlement or judgment is reached and you have not affirmatively chosen to opt out of the class, you will be bound by the result and cannot later bring your own separate suit. If you weren't planning to do that anyway, then who cares? A better way to phrase it is, "you can offer a horse hay but you can't force him to eat it if he thinks the oats he might get later would be tastier."
--
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Mike Jacobs
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