Jeff Kaliel is a Washington, D.C. attorney and partner at Kaliel PLLC, a firm he has led since 2017 that focuses on class action litigation in the consumer financial services sector. A graduate of Yale Law School and a veteran of the Iraq War, Jeff Kaliel has helped recover hundreds of millions of dollars for consumers, including a $66 million settlement from Bank of America over improperly assessed overdraft fees that also led the bank to revise its fee structure. He has served as lead class counsel in nationwide and state-specific lawsuits, winning contested certification motions and working with economic and technology experts to build damages models. In 2015, Super Lawyers recognized him as a Washington, D.C. Rising Star. His career illustrates how federal class actions actually determine who belongs to the group a lawsuit represents.
A class action allows one or more named plaintiffs to pursue claims on behalf of a larger group with relevant claims or issues in common. The named plaintiffs serve as class representatives, while other people who fall within the court-defined class can be class members. The boundaries of that definition determine who may be included.
Rule 23 governs class actions in federal court. Initial eligibility for class membership generally depends on whether a person falls within the class definition.
The notice-and-opt-out process discussed here applies specifically to Rule 23(b)(3) classes, whose members receive notice and may request exclusion. Consumers in such a class generally do not become members by submitting an application to join.
Being a class member also does not require being named as a plaintiff. The named plaintiffs represent the class in the litigation, while many other members may never be listed individually in the lawsuit. Their status depends on the class definition, not on whether the lawsuit names them.
The class definition sets the practical boundaries of membership. The court must identify the class and the claims, issues, or defenses covered.
In Farrell v. Bank of America, the settlement class used concrete limits. Those included a type of consumer checking account, a specified fee, a date range, and whether that fee had been refunded.
Class certification is the court’s decision to allow a case to proceed on behalf of a defined group. For membership purposes, the important result is that the certification order identifies the class whose members may be affected by the case.
The broader legal requirements for certification determine whether the class can proceed, but they do not replace the need for a clear class definition. For a Rule 23(b)(3) class, the court must direct the best notice practicable under the circumstances, including individual notice to members who can be identified through reasonable effort.
Notice may use mail, electronic communication, or other appropriate methods and must explain, among other things, the class definition, the claims or issues, how and when to request exclusion, and the binding effect of a class judgment. Receiving notice does not necessarily mean a consumer must respond to remain in the class.
A person who fits the class definition can remain a member without entering a separate appearance. The notice gives members an opportunity to request exclusion.
A judgment can bind people who received notice, did not request exclusion, and are found to be class members. Requesting exclusion is commonly called opting out.
A member who wants to leave the class must follow the procedure and deadline stated in the notice. A person who properly opts out is not included among the members bound by the class judgment.
Class membership is also different from filing a claim for settlement benefits. A person may already qualify as a class member because the class definition covers them, while a later settlement can separately require a claim form before certain benefits are paid.
Some settlements can distribute benefits without claim forms, so submitting a claim should not be treated as the step that originally creates membership. Class boundaries can still change after certification.
Rule 23 allows a certification order to be altered or amended before final judgment, and newly included members may need notice and an opportunity to request exclusion. Later court-approved notices therefore deserve attention because they can affect who is included and what choices remain available.
About Jeff Kaliel
Jeff Kaliel is a partner at Kaliel PLLC in Washington, D.C., where he has practiced class action litigation in the consumer financial services sector since 2017. He has served as lead class counsel in numerous nationwide and state-specific settlements, recovering hundreds of millions of dollars for consumers from banks and credit unions. A graduate of Yale Law School, he is also a veteran of the Iraq War and was recognized in 2015 as a Washington, D.C. Rising Star by Super Lawyers.