Deploying Rule 23(d)(1)(D) Motions to Strike Class Allegations Pre-Certification

Rule 23(a) Typicality, Rule 23(a)(2) Commonality, Rule 23(b) Predominance, and Heightened Ascertainability Requirements

Recording of a 90-minute CLE webinar with Q&A

Conducted on Thursday, May 9, 2019

Recorded event now available

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Program Materials

This CLE webinar will discuss using motions to strike class allegations and defeating class actions pre-certification, particularly after the recent Amendments to Rule 23.


Recent cases show an increasing trend by federal courts to grant early motions to strike class allegations where the judge can be persuaded 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.

Admittedly, a minority view disfavors or simply refuses to entertain motions to strike class actions, believing that Rule 12(f) has a very narrow purpose that is unrelated to the propriety of class allegations and that Rule 23(d)(1)(D) is a narrow housekeeping provision, useful only to "clean up" putative class action pleadings after certification has been denied. But the U.S. Supreme Court has endorsed a critical examination of class allegations at the pleading stage, stating that "[s]ometimes 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 deficiencies are particularly good candidates for strike motions. The most commonly successful challenge target 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 amended Rule 23, the standard of review, burden of proof, and jurisdictional and timing considerations. Additionally, 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, finishing the battle before it begins.



  1. Recent trends for strike motions
  2. Legal bases for motions to strike class allegations
  3. The legal standard
  4. Grounds for successful motions to strike
    1. Rule 23(a)(3) typicality
    2. Rule 23(a)(2) commonality
    3. Rule 23(a)(1) numerosity
    4. Rule 23(a)(4) adequacy of representation
    5. Rule 23(b) predominance
    6. Ascertainability
    7. Personal jurisdiction
    8. Nationwide class definitions
  5. Best practices


The panel will review these and other key issues:

  • Is the pleading stage too early to challenge class claims?
  • Do plaintiffs have a right to discovery early in the case?
  • When is a motion to strike the appropriate vehicle to attack the pleadings?
  • What is the right procedural mechanism for attacking class claims on the pleadings?
  • What impact does a strike motion have on individual and class claims?
  • What standard of review do the various circuits apply when deciding whether to grant a motion to strike class allegations?
  • What are some best practices for defense counsel for leveraging strike motions early on to defeat class claims?


Rose, Nina
Nina R. Rose

Skadden Arps Slate Meagher & Flom

Ms. Rose has extensive experience defending consumer fraud and false advertising class actions and product liability...  |  Read More

Wajert, Sean
Sean P. Wajert

Office Managing Partner
Shook Hardy & Bacon

Mr. Wajert focuses primarily on complex commercial and products liability litigation. An experienced trial attorney, he...  |  Read More

Wyatt, Geoffrey
Geoffrey M. Wyatt

Skadden Arps Slate Meagher & Flom

Mr. Wyatt represents clients in mass tort and other aggregate litigation. He defends companies as part of a team that...  |  Read More

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