ABSTRACT
Privacy class actions are undertheorized. Courts are increasingly called upon to adjudicate them when they arise from corporate business practices and data security events. But, even when they overcome problems of standing and compensation, courts lack frameworks for constituting and certifying a class in view of shared intangible losses and harms. Consequently, despite the importance of class actions for access to justice and corporate compliance, their success in these two aims is hindered. This Essay provides a tool for identifying which losses and harms to people’s privacy can and should be grouped in a class. It proposes using opacity loss, which is inversely related to the probabilistic knowledge gained by a third party, for assessing class commonality. It aims to provide courts with a framework for assessing these claims following data practices that better achieves the aims of civil procedure and privacy law.
Cofone, Ignacio, Certifying Privacy Class Actions (April 15, 2024), Harvard Journal of Law and Technology, volume 37, no 3, 2023.
Leave a Reply