A significant recent decision by the Fourth Circuit confirms that arbitration agreements that contain class-action waiver provisions can be a powerful tool to defeat class certification.  In In re Marriott International, Inc., the Fourth Circuit observed that while “no court has had occasion to expressly hold as much,” the “consensus practice” of courts is to “resolve the import of waivers at the certification stage—before they certify a class, and usually as the first order of business.”  2023 WL 5313006, at *6 (4th Cir. Aug. 18, 2023).  The Fourth Circuit held that courts must address the implication of an arbitration clause containing a class-action waiver before, not after, a class is certified.  And because the district court in this case did not do so, the Fourth Circuit vacated the district court’s class certification ruling.  Id. at *1.

The operative complaint asserted claims under various states’ laws based on alleged harm from a disclosed data leak that resulted in unauthorized access to Marriott guests’ records.  The district court certified Rule 23(b)(3) classes against Marriott for monetary damages on the breach of contract and statutory consumer-protection claims.  Id. at *1.  Although the district court concluded that plaintiffs lacked a class-wide theory of injury for their negligence claims, the court nonetheless certified “issue” classes against Marriott and Accenture (a third-party provider of IT services) on the duty and breach elements of negligence under Rule 23(b)(4).  Id. at *4.  

Among other defenses to class certification, the defendants argued that the class representatives’ claims were not typical of the class because they were all members of Marriott’s “Starwood Preferred Guest Program” (“SPG”).  As SPG members, they had agreed to pursue claims individually in arbitration, rather than as class members.  Id. at *3.  The district court concluded that this raised “serious typicality concerns,” since Marriott intended to argue that the representatives—unlike some of the absent class members—could not pursue class litigation against Marriott.  Id.  To resolve this issue, the district court redefined the classes against Marriott to include only SPG members.  Id.  Based in part on the court’s certification of these damages classes, it concluded that the potential efficiency gains warranted certification of issue classes on the duty and breach elements of plaintiffs’ negligence claims.  Id. at *4.

As a result of the district court’s decision limiting the damages classes to SPG members, every member of the certified classes had agreed to a class action waiver.  The district court acknowledged this issue only in a passing footnote, noting that the enforceability of the class waiver could be resolved along with other affirmative defenses at the merits stage.  Id. at *3.

On appeal, the Fourth Circuit decided that the district court’s failure to properly consider the impact of the arbitration clause was fatal to the entire certification order.  The Fourth Circuit explained. “That error . . . affected the certification of [the] negligence issue classes . . .  because certification of the Marriott damages classes was the lynchpin of the district court’s Rule 23(b)(3) superiority analysis.”  Id. at 5. 

The Fourth Circuit reasoned that addressing class waivers before certification is “consistent with the nature of class actions and the logic of class waivers.”  Id.  Class certification is the “key moment in class action litigation,” and thus the essential purpose of a class waiver would be undermined if a class is certified despite plaintiffs’ contractual agreement to pursue litigation individually.  Id. at *6.  Thus, the enforceability of the class action waiver should have been resolved before certifying the class, rather than at the merits stage.

In re Marriott International, Inc. thus indicates that arbitration clauses are important tools in defeating class certification, and defendants should thus rigorously assert this defense at the pre-certification stages of litigation.

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Photo of Jess Davis Jess Davis

Jess Davis is an associate in the firm’s Washington, DC office, where her practice focuses on defending complex class actions. She has experience defending clients in the technology and consumer brand industries against litigation involving privacy and consumer protection claims in courts across…

Jess Davis is an associate in the firm’s Washington, DC office, where her practice focuses on defending complex class actions. She has experience defending clients in the technology and consumer brand industries against litigation involving privacy and consumer protection claims in courts across the country.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a…

Andrew Soukup serves as co-chair of the firm’s Class Action Litigation Practice Group. He specializes in representing heavily regulated businesses in class actions, multidistrict litigation, and other high-stakes disputes.

Praised for achieving “big wins in his class action practice,” Andrew has defeated a variety of advertising, consumer protection, privacy, and product defect and safety claims, with exposure ranging from millions to billions of dollars. Based on his “proven record,” Andrew has been recognized as an “attorney you want on your side in a bet-the-company case.”

Andrew’s clients include those in the consumer products, life sciences, financial services, technology, automotive, gaming, and media and communications industries. He has consistently helped his clients prevail in litigation in federal and state courts across the country against putative class representatives, government agencies, state attorneys general, and commercial entities.

With a long history of representing companies subject to extensive federal regulation and oversight, Andrew has a unique ability to help courts understand the complex environment that governs clients’ businesses. Clients turn to Andrew because of his successful outcomes at all stages of litigation, his responsiveness and attention to their matters and his deep understanding of their businesses.

Andrew’s recent successes include:

Leading the successful defense of several of the world’s leading companies and brands in class actions accusing them of engaging in deceptive marketing or selling defective products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
Defeating claims against one of the nation’s leading consumer products companies in industry-wide, multidistrict class-action litigation challenging the company’s marketing and advertising of over-the-counter medicine containing allegedly ineffective ingredients, which earned Andrew recognition by American Lawyer as a “Litigator of the Week.”
Delivered wins in multiple nationwide class actions on behalf of leading financial institutions related to fees, disclosures, and other banking practices, including defending several financial institutions accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recognition as a “Class Action Group of the Year.”
Represented several consumer product and life sciences companies from lawsuits seeking economic damages arising out of the sale of products that allegedly caused personal injuries.
Helping several of the world’s most prominent companies from ESG-related claims accusing them of misrepresenting their practices.

Andrew has also achieved favorable outcomes for clients in commercial and indemnification disputes involving contracts, fraud, and other business tort claims. He helps companies navigate contractual and indemnification disputes with their business partners. Additionally, he provides guidance on arbitration agreements and has helped numerous clients avoid multi-district and class-action litigation by enforcing their arbitration agreements.

As a recognized thought leader on issues impacting class action litigation, Andrew regularly contributes to the firm’s blog, Inside Class Actions, and was recently featured in an interview with Litigation Daily on class-action litigation issues. In recognition of his achievements, he has been recognized by The American Lawyer as a Lawyer of the Week, and the Daily Journal recently included him on their list of Leading Commercial Litigators (2025).

Watch: Andrew shares insights on class action litigation, as part of our Navigating Class Actions video series.