CHICAGO—In a nationwide class action against Marriott related to its 2018 data breach, DiCello Levitt, together with its co-counsel, secured an important ruling in the U.S. District Court for the District of Maryland allowing the case to move forward as a class action.
After the plaintiffs’ motion for class certification was previously granted in 2022, Marriott appealed, and the United States Court of Appeals for the Fourth Circuit vacated the ruling, finding that the District Court needed to make certain threshold decisions about whether Marriott could argue that plaintiffs waived their right to participate in a class action. On November 29, Judge John Preston Bailey found that Marriott, both through “inaction and action,” forfeited its right to assert the class action waiver argument. Finding that Marriott could not now reverse its litigation strategy because it lost, the District Court was clear that Marriott waived its ability to assert that a purported clause prohibiting a class action could, in fact, prevent a court from ruling in plaintiffs’ favor:
“It appears that Marriott having not fared as well as it had hoped in the bellwether process is now attempting to invoke one half of one third of the Choice of Law and Venue provision. It has clearly waived 5/6 of the provision. It now seeks to enforce the words “class action” completely out of context. Marriott should not be permitted to cherry-pick the rules from a provision, having waived every other term therein.”
The District Court also made important findings about the applicability of the Federal Rules of Civil Procedure, and how Marriott could not, through its consumer agreements “limit [the] Court’s own authority. . . .”
Amy Keller, managing partner of DiCello Levitt’s Chicago office, chair of the firm’s Privacy, Technology, and Cybersecurity practice, and one of the appointed Co-Lead Counsel for the millions of consumers impacted by Marriott’s data breach, noted that the District Court’s decision was a legal milestone in data breach litigation, since so few data breach cases are litigated to the merits. Together with her co-counsel James Pizzirusso of Hausfeld LLP, and Andrew Friedman of Cohen Milstein Sellers & Toll PLLC, Keller said, “We are pleased with Judge Bailey‘s decision, and that he adopted the arguments we’ve been making for years. We look forward to resolving the merits of the litigation, which has now been pending for five years.”
“By obtaining class certification for a second time in this litigation, Amy and her team have, once again, demonstrated how strong advocacy and cogent thought overcomes even the most recalcitrant defendant seeking to evade responsibility for its wrongful conduct. What’s particularly gratifying here is the Court’s apparent acceptance of Amy’s Rule 23 argument in its entirety—it’s an unequivocal victory for our team,” said DiCello Levitt Founding Partner Adam Levitt.
The lawsuit alleges that due to a massive data breach in 2018 affecting Mariott’s subsidiary Starwood Hotels & Resorts Worldwide, sensitive personal data, including birth dates, email addresses, and passport information of more than 133 million consumers was compromised.
The case is: In re: Marriott International Customer Data Breach Security Litigation, No. 18-md-2879 (D. Md.).
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