A recent Florida appellate court decision caught my eye because it addressed a potentially-important issue that is not expressly addressed by Fed. R. Civ. P. 23, and has rarely been litigated: whether persons who have opted out of a class action settlement may pursue another class action on the same claims. The court held that they could not.

In Bay Area Injury Rehab Specialists Holdings, Inc. v. United Services Automobile Association, No. 2D14-786, 2015 Fla. App. LEXIS 8772 (Fla. 2d Dist. Ct. App. June 10, 2015), approximately 293 class members had opted out of a prior class action settlement. One of the opt outs had also filed a putative class action on largely the same issues that were the subject of the settlement. That case was stayed, by agreement of the parties, pending resolution of the class action that was settled. The plaintiff then sought to represent a class of medical providers who had opted out of the prior class settlement. The trial court granted a motion to strike the class allegations, and the court of appeal affirmed.

The court of appeal explained that “a party who opts out of a class action retains the right to proceed individually, but not to launch a competing class action of opt-outs seeking the same relief resolved on a class basis in a prior lawsuit.” Id. at *7-8. The court of appeal also endorsed the trial court’s reasoning that:

serial class actions would promote a marketplace for competing class actions and erode the benefits of proceeding in a single class action. The underlying lawsuits could proceed ad infinitum. Indeed, these competing class actions would weigh down the mechanism of providing litigants with an economically viable means of addressing their common claims in court through a single representative action.

Id. at *9. The court further noted that “[a]lthough we do not hold in this case that a class action of opt-outs is legally impossible, the need for such a class action would seemingly require exceptional circumstance.” Id. at *10.

This well-reasoned decision likely will be helpful to insurers and other defendants faced with this issue in other jurisdictions, given the paucity of precedent addressing the question. This also may be an area in which an amendment to class action rules to expressly address this issue might be appropriate.

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