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Opting Out of Class Actions: Advantages, Risks, Procedural Pitfalls, Settlement Leverage

Timing and Adequacy, Venue, Lessons From Recent Case Law

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, March 11, 2021

Recorded event now available

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This CLE course will guide counsel for putative class members on what factors to consider when advising clients whether to opt-out of a putative class. The program will assist counsel for the defense on best strategies for keeping the class together. Whether to opt-out of a putative class action and the ensuing lawsuits are incredibly complicated and require different analysis than whether to pursue a stand-alone claim. The webinar will discuss not only the opt-out decision but also recent case law on the mechanics of opting.


Opt-outs are cases in which at least one putative class member excludes itself from the class in order to pursue a separate lawsuit against the defendant. Though staying in the class may seem simpler, it is not always in a party's best interests. Recent studies and reports show that more and more plaintiffs are opting out of securities, antitrust, and other business practices class actions. Properly and carefully approached, opt-out actions can give individuals more options and more direct control of their case.

The most compelling reason for opting out is the chance to recover a significantly larger amount than if remaining in the class. Opt-out plaintiffs also hope to resolve the matter more quickly than remaining in the class, but the decision must often be made years before a settlement is proposed or approved. The threat of opting out can also be a powerful tool for plaintiffs in getting a larger recovery, whether through litigation or a separate settlement.

But a prospective larger recovery must be weighed against the defendants' incentive to litigate long and hard against opt outs. Other key considerations an opt-out plaintiff must confront include where it would need to file its separate case, the facts of the case, and whether other aggregate proceedings such as MDL cases are pending. After an individual suit is filed, the opt-out plaintiff may still be dragged into discovery in the class action.

Listen as our experienced panel discusses the key considerations in deciding whether a plaintiff should remain part of a class or bring its own claims, how to use the threat of opting out as leverage in settlement, and recent decisions about the procedural pitfalls of not properly opting out.



  1. Significance of opt-out rights
  2. Contrasting opt-in classes
  3. Timing and adequacy of opting out (Allianz Global Inv’rs GMBH v. Bank of Am. Corp. (S.D.N.Y. May 28, 2020) )
  4. Factors to consider
    1. Value
    2. Time to resolution
    3. Risks
    4. Venue
    5. Claims


The panel will review these and other key issues:

  • How critical are opt-outs and objections in class action litigation?
  • How frequently do class members opt-out of class actions in particular cases?
  • What is the relationship between opt-out plaintiffs and objections?
  • What other considerations exist besides the amount of recovery?


Hackett, Jennifer
Jennifer Duncan Hackett


Ms.  Hackett has experience in all aspects of complex antitrust, commercial, and financial services litigation,...  |  Read More

Rudolph, Brendan
Brendan J. Rudolph

Cornerstone Research

Mr. Rudolph consults to attorneys and helps prepare expert testimony in all phases of complex commercial litigation,...  |  Read More

Turner, Christopher
Christopher S. Turner

Latham & Watkins

Mr. Turner has broad experience in complex commercial litigation, with a concentration on corporate governance...  |  Read More

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