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Fourth Circuit Grapples with Effect of “Class-Action Waiver”

On Aug. 18, the United States Court of Appeals for the Fourth Circuit issued an opinion in the long-running Marriott Data Breach MDL Litigation. The Fourth Circuit reversed a district court’s class certification decision, holding that the district court erred in certifying damages classes against the Marriott defendants without first…

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On Class-Action Remedies, Begin with the End in Mind

Think about the last class-action notice that you received. You might have thought, “This is sweet. I didn’t know anything was wrong with my dog food, but I can get $50 if I just fill out this form.”There is a reason that we receive these mailings without having made a…

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Fail-Safe Classes Are Fundamental

Last month, the D.C. Circuit deepened a circuit split on the issue of fail-safe classes. The decision, In re White, 64 F.4th 302 (D.C. Cir. 2023), rejected a categorical rule against all fail-safe classes in favor of a case-by-case approach rooted in the text of the federal rules. With this…

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Does Due Process Limit Aggregate Statutory Damages in Class Actions?

Statutes defining minimum damages per violation, such as many consumer protection laws, often inspire class actions. Plaintiffs argue that certification of such classes is easier because they avoid issues of individualized damages. But in the aggregate, these damages can become immense. As a recent case from the Ninth Circuit shows,…

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