231 Pa. Code § r. 1711 app. A
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.
231 Pa. Code app A r. 1711