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The arguments for and against class certification often follow a preordained road map, in which both plaintiffs and defendants focus on whether the requirements of Federal Rule of Civil Procedure 23 or its state-law equivalents have been satisfied. Defendants can and must make these arguments—and often can win on those grounds—but sometimes they overlook an additional source of attacks on class certification: the U.S. Constitution. These constitutional arguments can be critical in a number of respects. When it comes to state court class actions—especially when a business is stuck in a “judicial hellhole”—constitutional arguments are the only route for obtaining U.S. Supreme Court review; otherwise there would be no federal-law issue in the case. And the Constitution offers independent and potentially significant protections to defendants targeted by inappropriate class actions, whether in state or federal court. In this series of articles, we will provide readers with an overview of key constitutional limitations on class actions and our insights on how defendants can identify opportunities to invoke them to defeat class certification.

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