This Article addresses the ability of members who have opted out of a class action to assert offensive nonmutual issue preclusion in their individual lawsuits against the class defendant. It discusses the reasons why the use of this device, widely available to any nonparty, has been systematically denied to opt-out class members. Specifically, their interests are not protected by the traditional actors in class action litigation: neither the court, the defendant, nor the class counsel represent their concerns and interests. Against the prevailing case law, scholarship, and the American Law Institute's Principles of the Law of Aggregate Litigation, Professor Gidi concludes that opt-out class members should be allowed to assert offensive nonmutual issue preclusion against the class defendant as any nonparty.
Maryann Zaki was a contributing author.