We study 236 cases in which we could ascertain quantitative in- formation about the number of objectors, 159 cases with quantitative information about the number of opt-outs, 205 cases with both the size of the class and the number of objectors, and 143 cases with both the size of the class and the number of opt-outs. Opt-outs from class participation and objections to class action resolution are rare: on average, less than 1 percent of class members opt-out, and about 1 percent of class members object to class-wide settlements. Opt-out-rates and objectorrates can be partly explained by observable factors in a particular case. Aside from variations across case types, the most significant factor explaining opt-out and objector rates is the recovery per class member. We do not find robust evidence that the rate of opt-out or objection is associated with the level of attorney fee or the fee's proportion of the client's recovery. Class dissent does not appear to increase when the fee is high, nor does dissent appear to exert a notable moderating effect on fees. The class's recovery is the overwhelmingly dominant feature in shaping the fee level. As predicted by theory, rates of dissent decline as the number of class members increases. The rate of objection to a settlement is negatively correlated with the likelihood that the settlement will be approved. However, we find no evidence that the opt-out rate has any effect on settlement approval. Although dissent rates have never been high, they exhibit a noticeable decline between 1993 and 2003.
Theodore Eisenberg and Geoffrey Miller,
The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues,
57 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol57/iss5/2