As discussed previously, class certification is required before a case is a class action. If a case settles after class certification, court approval is needed before the case can be dismissed. Class members who object to terms of any settlement can opt out of the class. If a class member opts out, he or she is not precluded from bringing another suit against the defendant. If a class member does not opt out, he or she is precluded from bringing another suit against the defendant (unless new facts or events are involved).
This happened in a case filed August 30, 2013. The plaintiffs are former NFL players, and they opted out of a previous class action, Dryer v. NFL. The plaintiffs argue that the NFL and NFL Films used their likenesses without compensation or their consent, like the plaintiffs are arguing in the NCAA student-athlete likeness antitrust litigation. Before approving a class action settlement, a court must make sure five requirements have been met:
- Reasonable notice must be directed to all class members bound by the proposed settlement;
- If the proposed settlement binds class members (which it usually would), the court can approve it only after a fair and adequate hearing on the settlement;
- The parties seeking approval of the proposed settlement must file a statement identifying the terms of any agreement;
- Any class member has a right to object; and
- The court can refuse to approve the settlement if a second opportunity for class members to opt out is not afforded, even if those class members previously had an opportunity to opt out.