Deploying Motions to Strike Class Allegations Pre-Certification

Description

Recent cases show an increasing trend by federal courts to grant early motions to strike class allegations where defense counsel can persuade the judge that a class cannot be certified. Such a motion can be equal to victory, ending the class certification fight before it even begins. Also, a partially successful motion may limit the scope of the claims, reducing the costs of discovery and reducing a plaintiff's leverage. And even an unsuccessful motion may persuade a judge to limit discovery, force plaintiffs to reveal more about their theory of a case, and provide a valuable opportunity to expose the judge to any flaws in the putative class action.

A minority view disfavors or refuses to entertain motions to strike class actions, believing that Rule 12(f) has a narrow purpose unrelated to the suitability of class allegations. This view also finds Rule 23(d)(1)(D) a narrow housekeeping provision to "clean up" putative class action pleadings after denial. The U.S. Supreme Court endorsed a critical examination of class allegations at the pleading stage, stating, "Sometimes the issues are plain enough from the pleadings to determine whether the interests of absent parties are fairly encompassed within the named plaintiffs' claim."

While any legal deficiency in the class allegations is fair game, certain defects are excellent candidates for strike motions. The most commonly successful challenge targets personal jurisdiction issues, nationwide class definitions, and personal injury. The key to success is a straightforward identification from the pleadings of disparate facts, theories, and legal elements within the named plaintiff's claims compared to those of the putative class members.

Listen as our panel of experienced class action practitioners discusses recent trends regarding motions to strike class allegations. They will focus on the requirements of Rule 23, the standard of review, the burden of proof, and jurisdictional and timing considerations. The panelists will offer best practices for reviewing class action complaints to determine oft-overlooked weaknesses that make class allegations susceptible to a motion to strike at the pleadings stage in order to finish the battle before it begins.