predominance in motions to strike or dismiss class...
TRANSCRIPT
Predominance in Motions to Strike
or Dismiss Class Allegations Navigating Burden of Proof, Standard of Review and
Procedural Issues When Pursuing or Opposing Early Motions
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WEDNESDAY, AUGUST 6, 2014
Presenting a live 90-minute webinar with interactive Q&A
Scott D. Kaiser, Partner, Shook Hardy & Bacon, Kansas City, Mo.
Annika K. Martin, Partner, Lieff Cabraser Heimann & Bernstein, New York
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Navigating Burden of Proof, Standard of
Review and Procedural Issues When
Pursuing or Opposing Early Motions
Scott D. Kaiser - Shook Hardy & Bacon
Annika K. Martin - Lieff Cabraser Heimann & Bernstein
Predominance in Motions
to Strike or Dismiss
Class Allegations
Bases for a Motion to Strike.
Variable sources of authority:
Rule 12(f)
Rule 23(c)(1)(A)
Rule 23(d)(1)(D)
“Prima facie” case
Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985).
Heerwagen v. Clear Channel Commc'ns, 435 F.3d 219
(2d Cir. 2006).
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Standard of Review
Generally uses same test as used for 12(b)(6) motion:
Accept as true all well-pleaded factual allegations in complaint
BUT will not accept conclusions of law as true
Draw all reasonable inferences in plaintiff’s favor
Resolve all doubts in favor of denying motion to strike
The motion to strike must be denied if:
If disputed questions of fact/law remain re class allegations
If any doubt remains as to potential later relevance of class allegations
Motion granted only if clear, from face of complaint alone, that no class could plausibly be certified under any facts consistent with allegations in complaint
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Burden of Proof
Burden is on moving party
Burden is “formidable” b/c MTS are generally disfavored as “a drastic remedy”
Movant generally must show the challenged allegations:
Have no possible relation to the controversy
AND
May cause prejudice to movant if not striken
OR
May confuse the issues in the case
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Timing Considerations.
Most courts recognize that a motion to strike class
allegations may be properly filed before Plaintiffs
have filed a motion for class certification.
A minority view treats a motion to strike as an
opposition to a motion for class certification “for all
practical purposes,” and therefore hold that a motion
to strike may not be granted before Plaintiffs move
for class certification.
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Jurisdictional Considerations
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Jurisdictional
Considerations
“Disfavored” in First Circuit.
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Jurisdictional
Considerations
Allowed in
Second Circuit
Heerwagen v. Clear Channel Commc'ns, 435 F.3d 219 (2d Cir. 2006).
Fifth Circuit
John v. Nat'l Security Fire & Cas. Co., 501 F.3d 442 (5th Cir. 2007).
Sixth Circuit
Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir. 2011).
Seventh Circuit
Kasalo v. Harris & Harris , Ltd., 656 F.3d 557, 563 (7th Cir. 2011).
Eighth Circuit
McRary v. Stifel, Nicolaus & Co., Inc., 687 F.3d 1052 (8th Cir. 2012).
Ninth Circuit
Eleventh Circuit
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Jurisdictional
Considerations
Neutral treatment in
Third Circuit
Fourth Circuit
Tenth Circuit
DC Circuit
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Predominance-based arguments
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Nationwide or multi-state classes pursuing
state-law claims.
Are plaintiffs’ state-law claims governed by the
differing laws of multiple states?
Pilgrim v. Universal Health Card, LLC, 660 F.3d 943
(6th Cir. 2011).
Plaisance v. Bayer Corp., 275 F.R.D. 270 (S.D. Ill. 2011).
Becnel v. Mercedes-Benz USA, LLC, No. 14-0003, 2014
U.S. Dist. LEXIS 75470 (E.D. La. Jun. 3, 2014).
15
Personal-injury and property-damage
classes.
Are Plaintiffs seeking recovery for personal injuries
or property damage that clearly have multiple
causes?
Bevrotte v. Caesars Ent. Corp, 2011 U.S. Dist. LEXIS
114463 (E.D. La. Oct. 4, 2011).
Hill v. Wells Fargo Bank, N.A., No. 12 C 7240, 2013 U.S.
Dist. LEXIS 73750 (N.D. Ill. May 24, 2013).
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Fraud and warranty classes.
Are Plaintiffs pursuing claims for which reliance or
personal knowledge is an element?
McRary v. Stifel, Nicolaus & Co., Inc., 687 F.3d 1052 (8th
Cir. 2012).
Rowe v. Morgan Stanley Dean Witter, 191 F.R.D. 398
(D.N.J. 1999)
Bauer v. Dean Morris, L.L.P., 2011 U.S. Dist. LEXIS
100399 (E.D. La. Sep. 7, 2011).
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Other specific inquiries
FDCPA
Alqaq v. CitiMortgage, Inc., No. 13 C 5130, 2014 U.S.
Dist. LEXIS 59366 (N.D. Ill. Apr. 29, 2014).
ADA
Semenko v. Wendy's Int'l, Inc., 2013 U.S. Dist. LEXIS
52582 (W.D. Pa. Apr. 12, 2013).
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“Kitchen sink” classes
Is the class action so expansive that it is clear from
its face that inquiries cannot be common?
Duvio v. Viking Range Corp., No. 12-1430, 2013 U.S.
Dist. LEXIS 38592 (E.D. La. Mar. 20, 2013).
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Related Arguments
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Unascertainable class definitions.
Are class members impossible to identify using an
objective and easily administrable method?
Is the class a so-called ‘‘failsafe’’ class – i.e. class
members cannot be identified without conducting
individualized inquiries into the merits of their
claims?
Sauter v. CVS Pharm., Inc., No. 2:13-cv-846, 2014 U.S.
Dist. LEXIS 63122 (S.D. Ohio May 7, 2014).
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Overbroad class definitions.
Does the class definition include people who were
not injured and therefore lack standing to sue?
E.g., Edwards v. Zenimax Media Inc., No. 12-cv-00411-
WYD-KLM, 2012 U.S. Dist. LEXIS 137520 (D. Colo. Sep.
25, 2012).
Does the class definition cover a period barred by a
statute of limitations or a contractual limitation?
22
Classes piggybacking on recalls or
voluntary repair or replacement programs.
Has the defendant voluntary provided a remedy for
members of the proposed class?
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Comity/copycat class actions.
Is the class action a carbon copy of another class
action in which class certification was denied?
E.g., Edwards v. Zenimax Media Inc., No. 12-cv-00411-
WYD-KLM, 2012 U.S. Dist. LEXIS 137520 (D. Colo. Sep.
25, 2012).
Baker v. Home Depot USA, Inc., 2013 U.S. Dist. LEXIS
9377 (N.D. Ill. Jan. 24, 2013).
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Inadequate class representatives.
Is the named plaintiff’s ineligibility to represent a
class apparent from the complaint alone – e.g.,
plaintiff is proceeding pro se or is obviously related to
or employed by class counsel?
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Trends
Courts that have stricken class allegations at the pleading stage have done so where the class definition is obviously defective in some way. In particular, courts have generally struck class allegations on the basis that the class definitions were overbroad, and therefore, the class was not ascertainable.
In instances where courts strike class allegations at the pleading stage, courts tend to grant leave to amend to cure the deficiency.
Rare for courts to strike class allegations based on predominance.
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Scott D. Kaiser
Shook Hardy & Bacon, Kansas City, Mo.
Annika K. Martin
Lieff Cabraser Heimann & Bernstein, New York
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