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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 2nd U.S. Circuit 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 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, 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. 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.” Plaintiffs, who included the families of eight Americans who died when a train on a cable runway caught fire on Nov. 11, 2000, brought claims charging the train and tunnel were improperly designed, built and maintained. They sued “on their own behalf, and on behalf of a class of heirs and representatives of victims … who consent in being included as members of the class.” After Scheindlin’s decision, the defendants in the appeal of Kern v. Siemens Corp., 04-0957, argued that Rule 23 does not allow certification on an opt-in basis. The defendants also contended that the class would be unmanageable because it would require an inquiry into each decedent’s estate and said class actions should not be used to resolve legal liability in a context of an accident with mass fatalities. Writing for the 2nd Circuit, Judge Jose A. 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.” Cabranes quoted Professor Benjamin Kaplan of Harvard Law School, who served as reporter to the advisory committee on civil rules from 1960 to 1966 and later became a judge on Massachusetts’ Supreme Judicial Court. Kaplan explained the rationale for the committee’s rejection of the notion that classes should consist only of those who affirmatively give notice they wanted to be included. Requiring people to affirmatively request inclusion in the class, Kaplan said, “would result in freezing out the claims of people — especially small claims held by small people — who for one reason or another, ignorance, timidity, unfamiliarity with business or legal matters, will simply not take the affirmative step.” Judge Cabranes said, “Courts have generally echoed Judge Kaplan’s view that ‘opt in’ provisions are contrary to Rule 23.” He said it was “unsurprising” that the 2nd Circuit has never squarely held that Rule 23 bars certification of an opt-in class because no other federal court explicitly certified such a class. “It is more common that courts have considered whether mandatory class-member questionnaires are permissible during the discovery stage of the class action,” Cabranes said. “Some courts have held that such questionnaires are impermissible — precisely because they may constitute a de facto ‘opt in’ provision.” The circuit, he said, “cannot envisage any circumstances when Rule 23 would authorize an ‘opt in’ class in the liability stage of a litigation,” and even if circumstances would necessitate the certification of such a class “neither the District Court nor the plaintiffs have done so in the case before us.” Judges Richard J. Cardamone and Sonia Sotomayor joined in the opinion. Robert A. Swift of Kohn, Swift & Graf in Philadelphia was listed as lead lawyer for the plaintiffs. Christopher Landau of Kirkland & Ellis was listed as lead lawyer for Siemens Corp.

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