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2ND CIRCUIT REJECTS OPT-IN REQUIREMENT NEW YORK — A district court ruling requiring prospective members of a class in mass accident litigation to “opt in” to the class has been reversed by the Second Circuit U.S. Court of Appeals. Finding that Southern District Judge Shira Scheindlin “overstepped the bounds of Rule 23″ by requiring potential class members to affirmatively consent to inclusion in the class, the Second Circuit reversed the class certification in litigation over a ski train accident in Austria that killed 155 passengers and crew members in November 2000. Under Rule 23 of the Federal Rules of Civil Procedure, class members are allowed to “opt out” of the litigation once a class is certified and notice is sent to potential class members — with one exception being class actions that primarily involve injunctive relief. But in October 2003, Judge Scheindlin certified a class of people who could “opt in” for the purposes of liability in suits stemming from the ski train fire at a resort in Kaprun, Austria. Judge Scheindlin, who received the cases from the Judicial Panel on Multidistrict Litigation, said she was “unable to find a case in which an ‘opt-in’ class was certified” under the rule, but that “there was nothing in the rule or case law that precludes such certification.” Writing for the Second Circuit, Judge Jose Cabranes said, “Not only is an ‘opt in’ provision not required, but substantial legal authority supports the view that by adding the ‘opt out’ requirement to Rule 23 in the 1966 amendments, Congress prohibited ‘opt in’ provisions by implication.” — New York Law Journal

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