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- "The district court's certification decision radically transforms the class action from a device designed to avoid the inefficiencies of trying (and deciding) the same claims repeatedly into a device that unfairly alters the parties' substantive rights." --
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The appeal arises from a class action by
But that approach to class certification requires the court first to resolve the merits of the case before it can determine who is a member of the proposed class. While many federal appeals courts have flatly prohibited such fail-safe classes, the Eighth Circuit has not yet considered the question. In its brief, WLF contends that this appeal offers the appeals court an excellent vehicle for doing so.
Fail-safe classes raise serious due-process concerns. They are unfair to defendants because they allow class members to evade the bar of res judicata, as plaintiffs are bound only by a favorable judgment. And they are unfair to absent class members, who too often are deprived of the requisite notice and ability to opt out of the class prior to final judgment.
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