I thought readers might find helpful some broader observations on strategies for defending class actions in 2016:
- Dig in Deep Early: Some defense counsel are accustomed to the practice of filing a motion to dismiss in virtually every putative class action. Some in-house counsel, eager to save costs, have pushed defense firms to agree to prepare these motions for reduced flat fees, in the hopes of ending the case early and at a reduced cost. But if you lose that initial motion, which may not be researched as thoroughly because of a reduced flat fee, while you may still have plenty of additional arguments to make on class certification and on the merits, the plaintiffs will have more momentum and the judge may view the case as potentially more meritorious. I think the better approach is to spend the time and money digging deep into the legal issues to try to predict more accurately how the issues presented by a motion to dismiss ultimately might come out at the appellate level, and doing sufficient internal homework with the business units involved to evaluate the strengths and weaknesses on class certification. That comes at a greater cost than a “knee jerk” motion to dismiss, but it is money well spent because it puts everyone in a better position to make a more informed decision about whether a motion to dismiss or some other strategy (such as a motion to strike class allegations, or taking early depositions of named plaintiffs, or waiting to defend against class certification) is the better way to go.
- Focus Intently on Each of the Elements of the Causes of Action and the Defenses: Federal district courts are increasingly taking a claim-by-claim, element-by-element approach to evaluating class certification. You will be well-served by having a memo written early in the case laying out each element of each claim and defense, what has to be proven, and assessing whether the evidence is likely to be common to the class or individualized. On the defense side there often are some elements of some claims that you may have to concede are likely to be the subject of common evidence. You need to identify early where to focus your efforts in discovery and briefing. This should not be an afterthought, after discovery has been taken and you are preparing your opposition to certification.
- Think Deeply About How the Named Plaintiffs’ and Putative Class Members’ Cases Would Be Tried: When it comes time for the court to decide whether to certify a class, one of the best ways to defeat class certification is by demonstrating specifically what evidence you would want to put on if the named plaintiffs’ cases were tried that would be unique to those plaintiffs and could affect the outcome. Put yourself in the shoes of preparing to try one of those small individual cases and think hard about how you would do it. You can then build that up by making a similar showing with respect to putative class members, and where possible demonstrate that a substantial percentage of putative class members’ claims likely will require this type of individualized evidence that the defendant has a right to put on. One of the most significant nuggets of guidance we’ve received from the Supreme Court recently is that under the Rules Enabling Act, a court must not “giv[e] plaintiffs and defendants different rights in a class proceeding than they could have asserted in an individual action.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1048 (2016). If you have the right to put on individualized evidence in trying the named plaintiffs’ individual cases, you must have the same right if the case were tried as a class action. Demonstrating how you would try the named plaintiffs’ (and/or putative class members’) individual cases can be powerful in defending against class certification.