Litigation Tactics to Defeat Class Certification: Leveraging Pleadings, Evidence and Settlement Mechanisms

Description

Class certification is the main event in any class action, and the stakes are high for both sides. If the court certifies a class, the potential liability of an adverse verdict often substantially increases. If the court declines to approve a class, the defendant is often “home free” because many plaintiffs conclude that the costs of litigation do not justify the pursuit of individual claims.

For these reasons, defense counsel must understand the various ways to defeat class certification during an early phase of the case. There are at least three stages that present critical opportunities to defeat class certification: (1) at the pleading stage, (2) at summary judgment, and (3) on a motion for class certification. During the pleadings stage, a defendant can sometimes conclusively defeat a bid for class certification by, for example, presenting a motion to compel arbitration. Or it might at least be able to limit the scope of the proposed class by prevailing on a motion to strike the class allegations in part.

Summary judgment, too, can either stop a class action in its tracks, narrow the scope of a class certification motion, or at least educate the court and the parties on the issues in a way that highlights individualized issues that will be the focus of a later opposition to class certification. Finding the delicate balance of attacking the class certification elements while simultaneously portraying how the merits would be decided if the classes were to be certified is essential for defense attorneys.

And of course the class certification motion presents the main event—and in most cases that last real opportunity to ensure that the case does not proceed as a class. Recent case law can guide counsel in taking advantage of these opportunities to establish that class treatment is inappropriate in a given case.

Listen as our distinguished panel discusses how to leverage motions, evidence and testimony to prepare a litigation plan to defeat class certification in federal or state court.