The Necessity of an 'Opt-In' Approach to Class Arbitration

While the policy favoring arbitration has fully matured in the United States, the question of the propriety and feasibility of class-wide arbitration remains unresolved. However, another and perhaps more critical question is whether class arbitration should be an "opt-in" or "opt-out" matter. This article argues that an "opt-in" approach to class arbitration is necessary both to ensure a capable resolution and to preserve the rights of prospective class members. Mr. Knutson raises the difficulties of an "opt-out" approach to class arbitration. Specifically, the article discusses the rights of absent class members, the enforceability of the award, the availability of arbitral immunity, and offers a solution in the form of an "opt-in" approach. The "opt-in" approach ensures that everyone bound by the award and any resultant judgment has affirmatively chosen to participate. This approach thereby alleviates concerns over fundamental fairness, the contractual rights of absent class members, the validity of their arbitration agreement, and the prospect of collateral attacks.