Predominance in Motions to Strike or Dismiss Class Allegations - - PowerPoint PPT Presentation

Predominance in Motions to Strike

• r 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

• pposition 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

10

Jurisdictional Considerations

 “Disfavored” in First Circuit. 11

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

12

Jurisdictional Considerations

 Neutral treatment in  Third Circuit  Fourth Circuit  Tenth Circuit  DC Circuit 13

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

• r 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).

16

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).

17

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).

18

“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).

19

Related Arguments

20

Unascertainable class definitions.

 Are class members impossible to identify using an

• bjective 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).

21

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?

23

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).

24

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

• r employed by class counsel?

25

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.

26

Scott D. Kaiser Shook Hardy & Bacon, Kansas City, Mo. skaiser@shb.com Annika K. Martin Lieff Cabraser Heimann & Bernstein, New York akmartin@lchb.com

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