Cite as: 511 U. S. 117 (1994)
O'Connor, J., dissenting
due process right to opt out of any class action which asserts monetary claims on their behalf." Pet. for Cert. i. The Court decides not to answer this question based on its speculation about a nonconstitutional ground for decision that is neither presented on this record nor available to these parties. From that decision I respectfully dissent.
Respondents are members of a class that reached a final settlement with petitioners in an antitrust action styled MDL No. 633. In re Real Estate Title and Settlement Services Antitrust Litigation, 1986-1 Trade Cases ¶ 67,149, p. 62,921 (ED Pa. 1986), aff'd, 815 F. 2d 695 (CA3 1987), cert. denied, 485 U. S. 909 (1988). Respondents subsequently brought this action against petitioners, asserting some of the same claims. The District Court held that respondents had been adequately represented in the MDL No. 633 action, and granted summary judgment for petitioners because, given the identity of parties and claims, the MDL No. 633 settlement was res judicata. App. to Pet. for Cert. 20a-28a. The Court of Appeals for the Ninth Circuit reversed. 982 F. 2d 386 (1992). The court agreed that respondents had been adequately represented in the MDL No. 633 action, id., at 390- 391, but held that respondents could nevertheless relitigate the same claims against petitioners: "Because [respondents] had no opportunity to opt out of the MDL No. 633 litigation, we hold there would be a violation of minimal due process if [respondents'] damage claims were held barred by res judicata." Id., at 392.
The Court concludes that the correctness of the Ninth Circuit's constitutional interpretation "is of no general consequence if, . . . in actions seeking monetary damages, classes can be certified only under Rule 23(b)(3), which permits optout, and not under Rules 23(b)(1) and (b)(2), which do not." Ante, at 121. In other words, the Court declines to answer the constitutional question because the MDL No. 633 action might not have been properly certified—an issue that was litigated to a final determination in petitioners' favor more
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