An Ounce of Prevention: Early Motions Attacking Class Certification

By Kayes, Thomas | Defense Counsel Journal, April 2013 | Go to article overview

An Ounce of Prevention: Early Motions Attacking Class Certification


Kayes, Thomas, Defense Counsel Journal


YOU hang up the phone. Your client has just been served with a class action complaint. After reading the complaint, you conclude that even assuming all its allegations are true, this case can never be certified as a class action. You quickly file a motion to dismiss the class allegations.

Without addressing your argument, the court denies the motion. The court asserts that the normal practice is to consider certification issues when the plaintiff moves for class certification after discovery, and accordingly the defendant's motion is premature. (1) Six months, fifteen interrogatories, twenty-two requests for the production of documents, one Rule 30(b)(6) deposition, three motions to compel, and five individual depositions later the court denies the plaintiff's motion for class certification on the same grounds raised in your initial motion to dismiss.

For defense counsel, the previous scenario represents a bitter-sweet victory. While you ultimately spared the client the expense of protracted class litigation, the client still incurred considerable and unnecessary cost. This article provides arguments to prevent what happened in this scenario from recurring in real life--by convincing courts to consider early motions on the merits instead of following the "usual practice" of waiting for a class certification. In particular, this article considers the ability to file early motions under the Federal Rules, the fairness of early motions to each of the parties, and the judicial economy early motions can create.

I. Status of Early Motions under the Federal Rules

Three federal rules, alone or in combination, have been construed to permit judges to grant early motions. Defendants may: (1) move to dismiss class allegations under Rule 12(b)(6); (2) move to strike the class allegations under Rule 12(f); or (3) move to deny class certification under Rule 23. This section discusses each option and concludes with a brief note to the defendant.

In this context, it is important to remember that local precedent controls. Some circuits and districts prefer (or prefer to deny) motions to dismiss over motions to strike. The practitioner must obey the law of the court hearing the case. However, absent controlling law to the contrary, Rule 12(b)(6) is preferable to Rule 12(f) when attacking the class allegations at the pleading stage. In contrast, motions to deny class certification under Rule 23--not motions to dismiss the class allegations or motions to strike--are appropriate when some discovery is needed to establish a problem fatal to class certification.

A. Motions to Dismiss

Like a motion to dismiss a particular cause of action, the motion to dismiss a class allegation presents the question: Do the class allegations make it plausible that the class can be certified under Rule 23? (2) The purpose of the motion to dismiss and the weight of the case law support the view that such motions can, and should, be posed prior to discovery or consideration of class certification.

Generally speaking, the purpose of the motion to dismiss is to allow defendants to test whether plaintiffs' allegations support their legal conclusions. (3) If the plaintiff cannot prevail even if everything she alleges is true--the action should not continue, at least not without first amending the allegations. This logic holds equally whether the legal conclusion being tested is that a class should be certified under Rule 23 (4) or that the elements of a particular cause of action can be satisfied. If the allegations do not support the legal conclusion, then there is no reason to believe that discovery will help. (5) And if discovery is pointless, there is no reason to burden the defendant or the courts with it. Moreover, few would argue that proving legal conclusions is easier than pleading them. Thus, if the plaintiff cannot successfully plead, then there is little reason to expect her to prove. …

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An Ounce of Prevention: Early Motions Attacking Class Certification
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