Over the past three decades, the Supreme Court has repeatedly insisted that due process requires that absent class members be given an opportunity to opt out of a class action seeking predominantly money damages. The Court’s asserted justification for linking opt-out rights and due process focuses on absent class members’ potential interest in seeking their own personal “day in court.” But this day-in-court rationale provides a problematic basis for viewing opt-out rights as a categorical requirement of procedural due process. Perhaps most obviously, the day-in-court justification makes virtually no sense in the context of class actions involving only small-value, individual damages claims, which cannot feasibly be litigated outside the context of a class proceeding.
Recognizing the deficiencies of the standard day-in-court rationale, this Article approaches the connection between due process and class action opt-out rights from a different perspective. Rather than taking as its central case the condition of an individual class member wishing to pursue a separate, standalone litigation—the perspective implicit in the standard day-in-court account—this alternative perspective focuses instead upon the interests of those class members who prefer that their legal claims not be asserted at all.
Outside the class action context, ownership of a legal claim typically entitles claimholders to decide for themselves whether or not their claims will be asserted in litigation. Class actions extinguish this control right by transferring control over absent class members’ claims to the class representatives and their attorneys. This transfer occurs without the claim owners’ explicit consent and allows their claims to be used for purposes with which the owners of those claims might not agree, such as to punish a particular defendant or to enrich class action lawyers that the owner views as undeserving. Opt-out rights provide an appropriate procedural safeguard that protects objecting class members from having their control rights erroneously extinguished, thereby allowing them to decide for themselves whether or not their claims will be asserted.
Shifting the focus of due process analysis away from the interests of absent class members who wish to pursue individual litigation and toward the interests of class members who wish to avoid having their claims asserted at all sheds useful new light on a number of issues relating to the theory and practice of class action litigation, including: (1) the theoretical foundations for opt-out rights in cases involving so-called “negative value” claims, (2) the differential treatment of opt-out rights in equitable class actions as opposed to those seeking monetary relief, and (3) the relationship between opt-out rights and the underlying substantive law establishing the claimholder’s entitlement to sue.