How Do I Decide Whether to Opt In or Opt Out of a Case?

In a typical lawsuit, a person who was injured sues the party responsible for his or her injury. This is called an individual lawsuit. But what if a large number of people all suffered the same kind injury, perhaps by a defective product or prescription drug? In that case, plaintiffs have the additional option to sue the defendant in a class action lawsuit, meaning their claims will be heard in a single judicial process.

How Class Actions Work

Before plaintiffs can sue a defendant in a class action, they must first show that their case meets certain requirements. The first requirement is numerosity, meaning that there are so many potential plaintiffs that it’s not practical for each plaintiff to file an individual suit. The second requirement is commonality, meaning the class members all have the same type of injury. Third, the plaintiff filing the lawsuit – called the lead plaintiff – must show that her injuries are representative of the class as a whole. Finally, the lawyers for the lead plaintiff must be competent to represent the other class members adequately. Once the class is certified, notice of the lawsuit must be given to anyone who was injured by the defendant in the same way.

What Happens if I Opt in?

If you want to “opt in” to a class action generally you need not do anything since you are included automatically. However, in some instances you may need to agree to participate in the lawsuit. Being included in a class action has certain advantages for people who may have been injured by a product or by the actions of a defendant.

First, a class action may be the only feasible type of lawsuit in cases where a plaintiff suffered a relatively minor injury, since the compensation simply wouldn’t be worth the effort of filing an individual suit. Opting in also means that a plaintiff need not pay legal fees out of pocket—if the class wins the attorneys will take a share of the award, but if the class loses plaintiffs usually aren’t on the hook for attorney fees. Similarly, class members won’t have to spend time consulting with their lawyers or appear in court, since the class representatives are acting on behalf of everyone else in the class.

What Happens if I Opt out?

Because you usually don’t have to do anything to be included in a class, it’s important to consider whether to “opt out” of a class action. The notice you received should tell you how to do this. Opting out will help you keep certain legal rights that you would give up by joining a class action. Probably the greatest disadvantage of joining a class action is that you won’t be allowed to file an individual suit later on if you aren’t satisfied with the outcome of the class action.

Moreover, class members who were injured more severely than others might not be compensated fairly because any settlement or award is split among the class. For such plaintiffs an individual lawsuit may be more appropriate. Finally, in class actions all decisions regarding the lawsuit are largely out of the plaintiffs’ hands since the class representatives along with their attorneys conduct the litigation on behalf of the class.