Opt-out classes had the additional virtue of avoiding the problem in pre-1966 spurious classes of class members waiting until the meritorious nature of the class was established before deciding to opt in.
The two primary mechanisms involve allowing putative class members to either opt out of or opt in to class membership.
Opt-out classes, which include all members who do not opt out, tend to be more inclusive than opt-in classes, which include only members who affirmatively opt in.
Those who want to opt in are likely to do so, and the class then will be composed of only those claimants who have expressly consented to aggregate litigation.
And self-identification in an opt-in class in which only those who opt in are potentially included in the class gives both the court and the defendant an effective opportunity to determine whether those who have opted in really do fit within the class definition.
As long as the number of class members who opt in exceeds around forty, (138) and as long as joining them together would be impracticable, then the class will have met the numerosity requirement.
Second, the ability of class members to opt in might suggest that formal joinder is not impracticable.
And the exercise of the opt in is an affirmative step overcoming the force of inertia, which signals stronger consent to the nature and arrangement of the class and its representatives.
Overdraft opt-ins cannot be grouped with other account features to entice customers to opt in.
Don't make it appear as though checks or recurring debits won't be covered if the customer doesn't opt in to the ATM/debit card program.
Don't suggest that perhaps better treatment could be had if they did opt in.