In the United States, anyone that has been harmed by conduct that is the subject of a class action has two options: Choose to remain a member of the class or opt out and bring an action as an individual plaintiff.

Having spent well over two decades in-house, I'm all too familiar with the challenges a GC faces in making the decision to pursue a claim, opt-out or otherwise. Although many factors are at play, too often one consideration—budget—trumps all. Even in the face of egregious behavior by a defendant, it is hard to justify putting limited legal budget at risk to pursue a claim that might lose. This is even more difficult in a commercial class action, where the option to remain in the class seems like the safest (and most budget friendly) option. But when a company has a valuable class action claim, it is incumbent upon a GC to carefully weigh her company's risk and cost tolerance against the obligation to maximize recoveries—and to thoroughly examine what tools might make an opt-out strategy viable.

Research conducted in June 2022 based on surveys conducted with 150 GCs and heads of litigation reveals that for high value claims, companies that opt out recover significantly more damages than they would by remaining in the class. "A report on class action recoveries," Burford Capital, September 2022.