The Gauntlet: Early Challenges to Class
CertificationAndrew Trask, McGuireWoods LLP
Garrett Wotkyns, Schneider Wallace
Trask is not British◦ But Wotkyns is half-Czech.
We know each other well◦ So there has been collusion.
We are University of Chicago grads◦ So we are deeply nerdy.◦ And pretty cynical.◦ And we say “incentive” a lot.
There will be no mention of Mazza◦ Except this one.
All of these cases are in the written materials◦ But the slides will go up on www.classactioncountermeasures.com today.
Things you should know :
Trans-substantive – one size fits all
Rule 23(a)◦ (1) numerosity – how big is this case really?◦ (2) commonality – will we get a single answer?◦ (3) typicality – is the plaintiff a special snowflake?◦ (4) adequacy – who’s the plaintiff working for?
Rule 23(b)◦ (1) – zero-sum games◦ (2) – declaratory or injunctive relief◦ (3) – damages
Predominance – Just how many special snowflakes are there? Superiority – Can’t we hand this off to someone else?
Rule 23 in 60 seconds or less
Class certified =◦ Heavy incentive for defendant to settle◦ Scope of case finally defined
Class denied =◦ Individual lawsuit, resulting in
Smallish settlement or Voluntary dismissal
The Big Assumption – Class Certification Is the Real Fight
Is to make the class proposal look like this.
So the defense strategy
(Sondra Locke optional.)
How do they do this?A complicated three-step process.
Class proposal
Early challenges
Class certification motion
Motion to Deny Certification Early Summary Judgment Discovery Battle Motion to Strike Motion to Dismiss
5 Possible Early Challenges
Procedural challenges (or direct challenges)◦ Look to win the game outright
Motion to Deny Motion to Strike
Substantive challenges (or indirect challenges)◦ Look to rearrange the chessboard
Summary Judgment Discovery battles Motion to Dismiss
2 ways to think of them
Defense faces incentive to challenge early
◦ Dukes has frontloaded discovery costs
◦ In-house counsel have been asked to do more with less “In 2012, corporate legal departments expect to handle
slightly more of them—on average, 5.4 matters per company, up from 4.4 in 2011. At the same time, they plan to decrease their per suit costs, which average $776,500, by 17 percent this year.”
(Carlton Fields survey)
Why do we care about this?
Vinole v. Countrwide Home Loans, Inc., 571 F.3d 935, 939 (9th Cir. 2009) (“Rule 23 does not preclude a defendant from bringing a ‘preemptive’ motion to deny certification.”).
Motion to Deny Certification
Defense Advantage:◦ Allows defendant to frame debate.◦ Allows defendant reply brief.
Defense Risk:◦ Tips hand to plaintiffs on arguments.◦ If court denies on procedural grounds, 1 motion for the
price of 2.
Motion to Deny Certification
Focused on plaintiff-specific issues.◦ Wright v. Schock, 742 F.2d 541, 543-44 (9th Cir. 1984)
(court properly ruled on summary judgment before certification because (1) resolution protected parties from needless and costly litigation and (2) parties did not suffer prejudice by early determination on merits).
Early Summary Judgment
“These are not the droids you are looking for.”◦ Named plaintiff not injured/not member of class.◦ Early rehearsal of adequacy/typicality.
“Please deny this motion.”◦ Attack on causation.
(e.g., plaintiff did not rely on representation)◦ Early attack on commonality/predominance.
Early MSJ arguments
◦ Defense Advantage: Win on merits, no case. Lose on contested material facts, sets up variations for class
certification.
◦ Defense Risk: Adverse decision on merits – legal grounds.
Early Summary Judgment
Heerwagen v. Clear Channel Communications, 435 F.3d 219 (2d Cir. 2006). ◦ Limitation of discovery OK because “plaintiff failed to make any
showing, however preliminarily, that she could satisfy the predominance requirement of Rule 23(b)(3) or that she might be able to do so with additional discovery.” (234)
Mantolete v. Bolger, 767 F. 2d 1416 (9th Cir. 1985).◦ “[T]he plaintiff bears the burden of advancing a prima facie showing
that the class action requirements of Fed. R. Civ. P. 23 are satisfied or that discovery is likely to produce substantiation of the class allegations.” (1424)
So defense can use discovery objections to force debate on scope of class.
Discovery
Defense Advantage:◦ Possible to limit discovery (& limit cost)◦ Possible to limit scope of class ◦ Can force early debate on dubious classes
Defense Risk:◦ Courts don’t like discovery disputes.◦ “Rigorous analysis” implies plaintiffs need evidence.
Discovery
John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (“Where it is facially apparent from the pleadings that there is no ascertainable class, a district court may dismiss the class allegation on the pleadings.”).
Motion to Strike
Variations in state law - Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 946 (6th Cir. 2011).
Incurable problems with class definition - John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007).
Better alternatives out there – Kamm v. Cal. City Dev. Co., 509 F.2d 205 (9th Cir. 1975) (previous AG settlement justified motion to strike).
Individual causation/reliance - Schilling v. Kenton County, 2011 U.S. Dist. LEXIS 8050 (E.D. Ky. Jan. 27, 2011) ("to resolve the legal issue presented the Court must delve into the specific facts of each inmate's incarceration and the medical needs relative to that inmate.").
Motion to Strike – Possible Grounds
Defense Advantage:◦ Early defeat of certification◦ Defendant gets to frame issues
Defense Risk:◦ Could be denied as premature
See, e.g., Eliason v. Gentek Building Prods., Inc., 2011 U.S. Dist. LEXIS 94032, *7 (N.D. Ohio Aug. 23, 2011) (“While raising possibly valid concerns, Defendants' arguments on class certification are premature.”)
◦ Tips plaintiffs off to arguments
Motion to Strike
Specific motions have specific Rule 23 criteria they help◦ Standing – Adequacy◦ Preemption - Superiority◦ Sufficiency of allegations – Commonality◦ Plaintiff-specific problems – Typicality/commonality◦ Availability of injunctive relief – Rule 23(b)(2)◦ Availability of attorneys’ fees – Plaintiffs’ reason for being
Motion to Dismiss
Defense Advantage:◦ Early resolution of case◦ Educate judge on individualized issues◦ Shape class cert briefing
Defense Risk:◦ Early determination that issues are common
In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 205 F.R.D. 503 (S.D. Ind. 2001). (subsequent certification overruled)
Motion to Dismiss
