Delaware class actions: only one kind of class gets notice and an opt-out
Delaware procedure · Last verified August 17, 2026
Whether you can leave a Delaware class action depends entirely on which subsection it was certified under, and that is decided before you hear about it.
A (b)(3) class — the damages class, where common questions predominate — brings "the best notice practicable", individual notice to everyone identifiable, and a right to be excluded.
A (b)(1) or (b)(2) class brings neither. The judgment "shall include and describe those whom the Court finds to be members of the class", whether or not it favors them, and the rule provides no opt-out.
The four prerequisites
Del. Super. Ct. Civ. R. 23(a):
Requisites to class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
| (1) | numerosity — joinder impracticable |
| (2) | commonality — common questions of law or fact |
| (3) | typicality — the representatives' claims or defenses are typical |
| (4) | adequacy — the representatives will fairly and adequately protect the class |
All four are required, and they are only the threshold. The action must also fit one of the three categories in (b).
The three categories
Rule 23(b)(1) covers the risk of inconsistent outcomes — where separate actions would create a risk of "Inconsistent or varying adjudications … which would establish incompatible standards of conduct for the party opposing the class", or of adjudications that "would as a practical matter be dispositive of the interests of the other members not parties" or "substantially impair or impede their ability to protect their interests."
Rule 23(b)(2) covers conduct aimed at the whole class: where the opposing party "has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."
Rule 23(b)(3) is the damages category, and the only one with a balancing test:
The Court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
The rule then lists what bears on that finding:
| (A) | class members' interest in individually controlling separate actions |
| (B) | the extent and nature of litigation already commenced |
| (C) | the desirability of concentrating the litigation in the forum |
| (D) | the difficulties likely to be encountered in management |
Notice and the right to opt out
Rule 23(c)(2) applies to (b)(3) classes only:
In any class action maintained under paragraph (b)(3), the Court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that: (A) The Court will exclude him from the class if he so requests by a specified date; (B) The judgment, whether favorable or not, will include all members who do not request exclusion; and (C) Any member who does not request exclusion may, if he desires, enter an appearance through his counsel.
| The notice must say | |
|---|---|
| (A) | you will be excluded if you request it by the specified date |
| (B) | the judgment binds everyone who does not request exclusion — favorable or not |
| (C) | a member who stays in may enter an appearance through counsel |
Three practical points for a class member who receives one.
The date in the notice is the whole opportunity. Exclusion is by request, by that date.
Staying in binds you either way. Limb (B) is explicit that an unfavorable judgment includes you.
You are not limited to silence. Limb (C) lets a member who remains in the class appear through their own counsel — a middle course between opting out and doing nothing.
Rule 23(c)(3) sets what the judgment must name, and the difference tracks the categories:
| Class type | The judgment includes and describes |
|---|---|
| (b)(1) or (b)(2) | those whom the Court finds to be members |
| (b)(3) | those to whom notice was directed, who have not requested exclusion, and whom the Court finds to be members |
Certification, and that it can change
Rule 23(c)(1):
As soon as practicable after the commencement of an action brought as a class action, the Court shall determine by order whether it is to be so maintained. An order under this paragraph may be conditional, and may be altered or amended before the decision on the merits.
Two features. The determination comes "as soon as practicable", and it is not fixed — an order "may be conditional, and may be altered or amended before the decision on the merits."
Rule 23(c)(4) allows a class action "with respect to particular issues", or division into subclasses each treated as a class.
What the Court can order along the way
Rule 23(d) gives a broad management power. The Court may make orders:
| (1) | determining the course of proceedings, preventing undue repetition or complication |
| (2) | requiring notice to some or all members of any step, the proposed extent of the judgment, an opportunity to say whether representation is fair and adequate, to intervene, or otherwise to come into the action |
| (3) | imposing conditions on representatives or intervenors |
| (4) | requiring the pleadings to be amended to eliminate allegations about representing absent persons |
| (5) | dealing with similar procedural matters |
Limb (2) is worth noting alongside (c)(2). Even in a class where notice is not mandatory, the Court may direct notice — including notice of "the opportunity of members to signify whether they consider the representation fair and adequate".
These orders "may be combined with an order under Rule 16" and "altered or amended as may be desirable from time to time."
Settlement and dismissal need approval
Rule 23(e):
Dismissal or compromise. A class action shall not be dismissed or compromised without the approval of the Court, and notice by mail, publication or otherwise of the proposed dismissal or compromise shall be given to all members of the class in such manner as the Court directs; except that if the dismissal is to be without prejudice to the class or with prejudice to the plaintiff only, then such dismissal shall be ordered without notice thereof if there is a showing that no compensation in any form has passed directly or indirectly from any of the defendants to the plaintiff or plaintiff's attorney and that no promise to give any such compensation has been made.
| Rule | no dismissal or compromise without Court approval and notice to all members |
| Exception | dismissal without prejudice to the class, or with prejudice to the plaintiff only |
| That exception requires a showing that | no compensation has passed, directly or indirectly, from any defendant to the plaintiff or the plaintiff's attorney — and none has been promised |
The carve-out is carefully drawn. It exists so a plaintiff who simply walks away does not have to notify a whole class, and it closes the obvious abuse by requiring proof that nobody was quietly paid — including counsel, and including a mere promise.
Where this connects
Rule 23 matters outside class practice too. It is one of the categories excluded from Delaware's mandatory non-binding arbitration track: Rule 16.1(b)(1) takes actions involving a matter listed in Rules 23 and 81(a) out of MNA, though the parties may stipulate to another form of ADR. See Delaware mandatory non-binding arbitration.
Voluntary dismissal is also expressly "Subject to … the provisions of Rule 23(e)" — see Delaware dismissal for want of prosecution, which covers the notice and stipulation routes under Rule 41(a).
For certification's procedural setting, see the Delaware motion to dismiss and Delaware summary judgment.
How Delaware compares
| Delaware | Federal | |
|---|---|---|
| Prerequisites | 4 | 4 |
| Categories | 3 | 3 |
| Notice mandatory | (b)(3) only | (b)(3) only |
| Opt-out right | (b)(3) only | (b)(3) only |
| Certification order alterable | before the decision on the merits | before final judgment |
| Issue classes and subclasses | yes | yes |
| Settlement approval | required | required |
| Notice-free dismissal | yes, if no compensation passed | no equivalent carve-out |
A short checklist
- Find out which subsection the class was certified under. It decides whether you get notice and an opt-out at all.
- If you receive a (b)(3) notice, diary the exclusion date. That request is the only way out.
- Understand that staying in binds you to an unfavorable judgment as much as a favorable one.
- Consider entering an appearance rather than choosing only between opting out and silence.
- Certification is not final — the order may be conditional and amended before the merits.
- Watch for issue classes and subclasses, which may change what is actually being decided.
- No settlement or dismissal binds the class without Court approval and notice.
- A class action cannot go to mandatory arbitration under Rule 16.1.
Where these rules live
- Del. Super. Ct. Civ. R. 23 — Class actions
- Del. Super. Ct. Civ. R. 41 — Dismissal of actions
- Del. Super. Ct. Civ. R. 16.1 — Mandatory non-binding arbitration
- Del. Super. Ct. Civ. R. 16 — Pretrial conferences; scheduling; management
This page explains what the rules say. It isn't legal advice.