Pennsylvania Code › Title 231 - RULES OF CIVIL PROCEDURE › Part I - GENERAL › Chapter 1700 - CLASS ACTIONS › Appendix A - ANALYSIS OF THE RULES › Rule 1711 - The Plaintiff Class. Exclusion. Inclusion

Current through Register Vol. 54, No. 28, July 13, 2024
This Rule is new and provides a novel solution to the
					 "opt-out", "opt-in" controversy. The general rule will be that every member of
					 the class as defined in the court's order is included unless by a specified
					 date he requests exclusion. The Federal rule now limits this opt-out procedure
					 to 23(b)(3) class actions, i.e., common questions of law or fact, which were
					 formerly called "spurious" class actions. Rule 1711(a) is stated in broader
					 terms.
The right to self-exclusion under Rule 1711(a) cannot be
					 absolute. To state the obvious a defendant party cannot be allowed to exclude
					 himself from the action by his own choice. Accordingly, where a counterclaim is
					 pleaded against the plaintiff class as a whole or against individual members
					 thereof, the right to exclusion must be limited. The parties against whom the
					 counterclaim is asserted become defendants as to the counterclaim and cannot be
					 permitted to exclude themselves from the litigation. Pa. R.C.P. 232(a) will
					 govern.
Likewise, where the members of the class have joint, as
					 distinguished from several interests, in the subject matter and their joinder
					 is compulsory under Pa. R.C.P. 2227(a), their right to self-exclusion should
					 not be permitted.
In other situations the right to self-exclusion may be
					 restricted by the court where the disposition of the claims of all members in
					 one action outweighs the individual's right to self-exclusion. Thus, where the
					 rights of class members are dependent on the resolution of questions of
					 constitutional, statutory or contractual construction where the danger of
					 inconsistent decisions with respect to individual members would confront the
					 party opposing the class, the right to self-exclusion must be balanced against
					 the interests of the defendant. Also to be considered are the benefits of
					 judicial economy and the disposition of all claims in one action.
The court in its order of certification can take all these
					 factors into account.
The Federal rule contains no provision for an opt-in
					 procedure before a member may be considered as a member of the class. Some
					 Federal courts, however, developed procedures approximating an opt-in
					 requirement by requiring the filing of a proof of claim or a notice of
					 intention to file a claim as a condition precedent to becoming or remaining a
					 member of the class. Ordinarily this is not required until there is a fund
					 available for distribution, but some decisions have imposed it prior to
					 certification or in the order of certification.
Rule 1711(b) does not adopt the procedure for filing a
					 claim. It gives the court the option to provide a true opt-in procedure only in
					 certain limited instances, i.e., where (1) the individual claims are
					 substantial and the potential members of the class have sufficient resources,
					 experience and sophistication in business affairs to conduct their own
					 litigation, or (2) other special circumstances exist which are described in the
					 order. The rule does not attempt to define these "other" special circumstances
					 which will vary in each particular case. Equally, this provision is not
					 intended as a blank check to permit unbridled discretion in the court to
					 require members of the class to opt in. The word "other" suggests that these
					 special circumstances must be of the same magnitude and character as in (1).
					 Obviously, the provision may never be applied to conventional consumer class
					 actions involving numerous members of a class claiming only small amounts who
					 could not conduct their own litigation.
One of its uses is suggested in
Klemow
,
supra
, which indicated that the court will have no
					 jurisdiction over nonresidents unless they voluntarily appear. The opt-in
					 procedure would provide a simple method of doing this. In such case there could
					 be a dual form of order under Rule 1710; an opt-out for residents, an opt-in
					 for nonresidents.
Because of the opt-out or opt-in provisions of the rule,
					 prothonotaries will have the responsibility, under court direction, of
					 establishing adequate records and dockets providing easy access to and
					 identification of those members of the class electing to opt out or opt in
					 pursuant to the direction of the certification order.