An ounce of prevention: early motions attacking class certification.

• Author: Kayes, Thomas

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.

1. 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.

   1. 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.

      Considerable precedent also supports the viability of motions to dismiss class allegations. The Supreme Court has not directly (6) addressed

      the issue, but two Courts of Appeals have ruled favorably, (7) and none currently prohibit these motions. The only appellate court to ever categorically prohibit motions to dismiss class allegations is the Ninth Circuit, in a case (Gillibeau v. City of Richmond) which has since been implicitly overruled. (8) Assuming Gillibeau is no longer binding precedent, defendants may safely argue that there is no binding authority precluding a motion to dismiss class allegations in any jurisdiction.

      Nonetheless, some courts still refuse to consider these motions. (9) Few courts refuse do so because they consider them unauthorized. (10) That is, most courts tacitly acknowledge that motions to dismiss under Rule 12(b)(6) are applicable to class allegations. (11) These courts tend to deny the motions off-hand, without prejudice, and often just by asserting that they are "premature," outside "the normal practice," or simply "rare." (12)

      In contrast, other district courts routinely consider and grant motions to dismiss the class allegations, (13) although few discuss whether or how these motions are authorized. Most appear to assume that Rule 12(b)(6) encompasses allegations that a class can be certified under Rule 23. (14) The few courts that have considered the question of authorization issue have focused on two principles.

      Courts often cite General Telephone Co. v. Falcon in support of early motions. (15) In Falcon, the Supreme Court stated that "[s]ometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiffs claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." (16) District courts have taken this language to implicitly authorize motions to dismiss class allegations, reasoning that any issue clear from the pleadings may be resolved on a motion to dismiss. (17) If it is "clear from the pleadings" that a particular aspect of a case is doomed to fail, there is no reason to keep it in the case.

      District courts also rite Rule 23(d)(1)(D) in support of motions to dismiss class allegations. (18) It provides that "[i]n conducting an action under this rule, the court may issue orders that require ... that the pleadings be amended to eliminate allegations about representation of absent persons...." (19) In other words, the rule gives judges the authority to, in effect, dismiss class allegations. It follows that the defendant should be allowed to ask the judge to exercise this authority.

   2. Motions to Strike the Class Allegations

      Many defendants have begun to frame their motions attacking the class allegations as motions to strike under Rule 12(f), with increasing success. (20) Notably, the Sixth Circuit recently affirmed a district court's grant of a motion to strike class allegations. (21) Nonetheless, unless the case is in a favorable jurisdiction--like the Sixth Circuit--defendants should still prefer motions to dismiss for three reasons.

      First, Rule 12(f)'s language is not a clean fit for this purpose. Rule 12(f) says "[t]he Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." (22) It seems awkward to call class allegations, even deficient ones, redundant, immaterial, impertinent, or scandalous.

      Second, bad precedent abounds. (23) Judges, particularly in the district courts of Pennsylvania, (24) have said--and repeated, in case after case--harsh things about motions to strike class allegations. (25) Several opinions claim that Rule 12(f) motions in the class action context are "particularly disfavored." (26)

      A final reason to prefer Rule 12(b)(6) is that courts that consider motions to strike the class allegations under Rule 12(f) may decide them as if they were Rule 12(b)(6) motions. (27) In other words, judges often use the same pleading standard at work in 12(b)(6) motions to decide in motions to strike under Rule 12(f). Rule 12(f) offers the same standard as Rule 12(b)(6) but carries with it the baggage of an ambiguous text and negative case law. Unless a defendant is hailed into a jurisdiction with very positive precedent on motions to strike and very negative precedent on motions to dismiss (or the Sixth Circuit), the motion to dismiss is preferable to the motion to strike.

   3. Motions to Deny Certification

      Defendants also may move to deny class certification under Rule 23 before plaintiffs move to certify. If class allegations, standing alone and taken as true, reveal that the class cannot be certified, then a motion to dismiss is preferable. Alternatively, if the pleadings only hint that a problem fatal to certification may be established with discovery, then--after that discovery is taken--the motion to deny certification under Rule 23 is appropriate.

      Rule 23 authorizes defendants to move to deny class certification before plaintiffs move to certify. Although the Supreme Court has not decided this issue, three circuit courts have agreed that Rule 23 authorizes preemptive motions by the defendant. (28) Although it is more common for plaintiffs to move to certify, the usual practice should not be mistaken for the only permissible option. Rule 23 does not expressly authorize either parry to make motions for or against certification. In relevant part, it only instructs the judge to "determine by order whether to certify the action as a class action." (29) There is no textual reason to treat plaintiffs and defendants differently. If we continue to allow plaintiffs to bring motions to certify, courts should also allow defendants to make motions to deny certification. (30)

      By the same logic, courts should hold motions to deny certification to the same standard as for motions to certify. After much litigation, consensus is creeping toward a preponderance of the evidence. (31) A...