A recent decision by a Florida appellate court highlights an important point that defendants can effectively raise in other jurisdictions as well – a named plaintiff’s failure to timely seek certification can, by itself, be grounds for denial of certification.

In Osborne v. Emmer, No. 4D15-1761, 2016 Fla. App. LEXIS 1445 (Fla. 4th DCA Feb. 3, 2016), an amended complaint including class action allegations was filed in October of 2009. As of March 2016, more than five years later, the plaintiffs had not sought class certification. The defendant moved to deny certification, and the trial court granted the motion based on the delay alone, without holding a hearing on any other class certification issues. The appellate court affirmed. It explained that: (1) “extensive delay alone can warrant denial of class certification”; and (2) “[p]art of the adequacy determination includes the zeal and competence of the representative’s counsel, and courts may consider the delay in the progress of a case and in seeking class certification in deciding whether a representative is adequate.” Id. at *4-5.

This is an argument that may sometimes be overlooked by defendants as litigation drags on. It is an argument that, as this case demonstrates, can be effectively made in appropriate cases.