In a nutshell, opt-in classes ought to meet the certification requirements more easily than opt-out classes simply because their class members have affirmatively opted in.
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.
Proof of numbers can be a simple matter of counting class members who have opted in, and proof of impracticability of joinder will be far easier having identified those who wish to be in the class.
(153) If, for example, members opted in by registering on a website, then all notices could be electronic, automated, and immediate.
The opt-in option I propose already is a hybrid mechanism because it defines the class based on those who have opted in but still allows opportunities to opt out at certification, at settlement, and at other times authorized by the court.
As at the end of June 2009, around 61% of KiwiSaver members have opted in
. The number of opt-ins seems to have been highest at the start of the scheme, with a smaller peak when employer contributions became compulsory.
Firms can clarify this further by including a short reminder that it is sending the message because the recipient previously opted in
. Getting prior consent from the recipient also entities the firm to not label the message as an advertisement, reducing the chance of its being blocked, and puts the firm a step ahead should a "Do-not-e-mail" list become law, which is possible in the future under CAN-SPAM.