When Can a Hedge Fund Shareholder Opt Out of a Class Action Settlement to Pursue Its Own Remedies When a Court Has Certified the Class as a Non-Opt-Out Class?

Companies are often reluctant to settle class action lawsuits with a group of shareholders unless they have some assurance that shareholders will not be permitted to opt out of the settlement to pursue their own remedies against the company.  As such, proposed settlements are sometimes conditioned upon the certification of a class by a court as a non-opt-out class, meaning that shareholders may not opt out of the class action settlement without court approval.  Nonetheless, in some circumstances, shareholders may object to a negotiated settlement for various reasons and may wish to opt out of the settlement to prosecute their own claims against the company.  The Delaware Supreme Court recently issued an opinion in a case in which it considered whether and when a shareholder (in this case a hedge fund) should be permitted to opt out of the class action settlement under these circumstances.  This article provides the factual and legal background of the case; discusses the court’s holding and analysis; and discusses the implications of the decision for hedge fund shareholders engaged in class action litigation.

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