Class action defense litigators should be aware of a recent federal district court decision that endorsed and accepted a creative option for defeating class certification—the defendant’s implementation of a voluntary refund and replacement program providing a comparable remedy to what the putative class might recover in court. See In re Aqua Dots Prods. Liab. Litig., 2010 WL 3927611 (N.D. Ill. Oct. 4, 2010). In so doing, the decision in Aqua Dots extends a growing and important trend in class action jurisprudence concerning the scope of Federal Rule of Civil Procedure 23(b)(3)’s requirement that class litigation be “superior to other available methods for fair and efficient adjudication of the controversy.” While the notion of a refund or replacement program as an alternative to class actions has been around for decades, Aqua Dots provides a new impetus to consider this approach.
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