Class action lawyer here and respectfully disagree. "Numerosity" of members is a class action prerequisite, but it's usually met if over 40 class members exist. In this huge (over 100m ppl), controversial settlement, well over 40 people will likely opt out, so "numerosity" shouldn't be a problem.
The bigger question is whether the Federal Rules of Civil Procedure (FRCPs) allow a second class action, by individuals that opted out of a prior settlement on the same issue. Judges have disagreed about how to answer that question--some have forbade the second class action, while others have allowed it. For example, compare In re Bridgestone/Firestone, 333 F.3d at 769 ("And a person who opts out receives the right to go it alone, not to launch a competing class action.") with In re Baldwin-United, 105 F.R.D. at 481 ("[P]laintiffs can opt out of a settlement class and pursue their litigation goals either individually or as another putative class.").
I think the correct answer is to allow a second class action. The FRCPs say nothing about an opt-out forfeiting any rights, including the right to bring a class action. Further, the FRCPs state that they "should be construed ... to secure the just, speedy, and inexpensive determination of every action," and allowing a second class is inexpensive compared to requiring numerous individual lawsuits by opt-outs.
There are other arguments, counterarguments, other relevant cases, and more nuanced issues involved, but hopefully this helps.
The bigger question is whether the Federal Rules of Civil Procedure (FRCPs) allow a second class action, by individuals that opted out of a prior settlement on the same issue. Judges have disagreed about how to answer that question--some have forbade the second class action, while others have allowed it. For example, compare In re Bridgestone/Firestone, 333 F.3d at 769 ("And a person who opts out receives the right to go it alone, not to launch a competing class action.") with In re Baldwin-United, 105 F.R.D. at 481 ("[P]laintiffs can opt out of a settlement class and pursue their litigation goals either individually or as another putative class.").
I think the correct answer is to allow a second class action. The FRCPs say nothing about an opt-out forfeiting any rights, including the right to bring a class action. Further, the FRCPs state that they "should be construed ... to secure the just, speedy, and inexpensive determination of every action," and allowing a second class is inexpensive compared to requiring numerous individual lawsuits by opt-outs.
There are other arguments, counterarguments, other relevant cases, and more nuanced issues involved, but hopefully this helps.