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A Southern District of New York judge has taken the unusual step in an Austrian train disaster case of certifying a class that may “opt-in” to mass accident litigation. Judge Shira Scheindlin said that while she was “unable to find a case in which an ‘opt-in’ class was certified” under Rule 23 of the Federal Rules of Civil Procedure, “there is nothing in the rule or case law that precludes such certification.” Normally under Rule 23 (b)(3), class members can be allowed to “opt-out” of litigation after a class is certified and notice is sent to potential class members. One exception to that practice is in class actions involving primarily injunctive relief. But in an opt-in class, plaintiffs must affirmatively choose to be a class member at an earlier stage of the litigation, and in this case must agree not to sue in other countries if their lawsuit fails here. But despite the paucity of case law on the subject, Judge Scheindlin said the possibility of repeat litigation in other countries over the Ski Train fire that killed 155 people in Austria in 2000 made it proper to establish an “opt-in” class in In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, multidistrict litigation that has been sent to New York under 01 MDL 1428. The fire occurred in a cable car that was going through a mountain tunnel. Eight Americans were among those killed in the incident. The plaintiffs alleged that both the train and the tunnel were improperly designed, built and maintained and that the train was negligently operated. The numerous defendants in the litigation, which included Siemens Corp., opposed class certification. Judge Scheindlin noted that courts traditionally have been “reluctant to apply the class action device to mass accident litigation,” in part because “plaintiffs in mass tort cases do not share common interests because of differences in the strength of their claims.” But leading authorities in the field of federal practice, she said, have contended that class actions may benefit in determining liability, specifically where there is “little chance” that some defenses would apply to some plaintiffs and not others. Not only would the Ski Train fire class action be limited to liability, the judge said, but all the class members “stand in the same position,” regarding to the strength or weakness of their claims, as well as any defenses that Siemens and others might assert. She said that “class members have a strong interest in not pursuing their own claims because few can afford to bring such a complex suit against foreign defendants on their own.” For that reason, the judge said, “the class action is the superior method for adjudicating defendants’ liability.” OPT-IN Judge Scheindlin then turned to the plaintiffs’ request that they be allowed certification on an “opt-in” basis, an issue she said was affected by the fact that once the plaintiffs chose to be part of the class, they would have to agree not to sue Siemens or other defendants in their own countries. “An ‘opt-in’ class is necessary here because it would be unfair to presumptively include members in a class for which membership depends on a waiver of a right,” she said. “Indeed, the requirement that class members consent to be bound by the judgment is analogous to a Fair Labor Standards Act (FLSA) action, which binds only those who affirmatively desire to be class members.” The defendants, the judge said, had opposed such an “unusual” class definition, adding that several courts have rejected the creation of “opt-in” classes. “In none of those cases, however, was the issue of the court’s authority to certify an ‘opt-in’ class under Rule 23 placed squarely before the court,” she said. Plaintiffs’ lawyer Robert A. Swift of Kohn, Swift & Graf in Philadelphia said the waiver of the right to sue again in the plaintiffs’ home countries is necessary because “the concepts of res judicata and collateral estoppel are not universal in Europe.” “Some countries recognize our judgments as having preclusive effect,” he said. “But others, such as Austria, don’t have formal recognition, although the judgment in the United States may be used as evidence.” Along with Swift, the plaintiffs are represented by Edward D. Fagan of Fagan & Associates; Jay J. Rice of Nagel, Rice, Dreifuss & Mazie in Livingston, N.J.; and Kenneth Nolan of Speiser, Krause, Nolan & Granito. Brant Bishop of Kirkland & Ellis in Washington, D.C., represents Siemens. Arnd N. von Waldow of Reed Smith represents Bosch Rexroth Corp. Arthur Liederman of Morrison, Mahoney & Miller represents Bosch Rexroth AG. E. Gordon Haesloop of Bartlett, McDonough, Bastone & Monaghan represents Omniglow Corp.

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