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Deploying Rule 23(d)(1)(D) Motions to

Strike Class Allegations Pre-CertificationRule 23(a) Typicality, Rule 23(a)(2) Commonality, Rule 23(b) Predominance,

and Heightened Ascertainability Requirements

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THURSDAY, MAY 9, 2019

Presenting a live 90-minute webinar with interactive Q&A

Nina R. Rose, Counsel, Skadden Arps Slate Meagher & Flom, Washington, D.C.

Sean P. Wajert, Office Managing Partner, Shook Hardy & Bacon, Philadelphia

Geoffrey M. Wyatt, Partner, Skadden Arps Slate Meagher & Flom, Washington, D.C.

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5Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices

5/9/2019

Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices

Presented by Geoffrey Wyatt, Sean Wajert and Nina Rose

https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&cad=rja&uact=8&ved=2ahUKEwjSu4Hkw-7hAhVtFjQIHXffCBkQjRx6BAgBEAU&url=https://www.linkedin.com/company/shook-hardy-%26-bacon&psig=AOvVaw25BEiD2urNEBLsbFvRsRg2&ust=1556394581518399



Contents

Nationwide Class Definitions 2 Highlighting State Law Variations

Personal Jurisdiction 3 In the Wake of Bristol Myers

Personal Injury/Medical Monitoring Classes4 Complicated and Individualized Factual Inquiries

Ascertainability5 Subjective, Fail Safe, and Overbroad Classes

Overview1



Motions to Strike – Legal Bases

• FRCP 12(f): A court may strike from a pleading “any redundant,

immaterial, impertinent, or scandalous matter,” acting either on its own

or on a motion advanced by a party.

– Courts have granted pre-discovery strike motions premised upon Rule 12(f).

See, e.g., Ott v. Mortg. Inv'rs Corp. of Ohio, 65 F. Supp. 3d 1046, 1063 (D. Or.

2014).

• FRCP 23(d)(1)(D): A court conducting a putative class action may issue

orders that “require that the pleadings be amended to eliminate” the

class allegations.

– “A motion to strike class allegations is governed by Rule 23, not Rule 12(f).”

Bennett v. Nucor Corp., No. 3:04CV00291SWW, 2005 WL 1773948, at *2

(E.D. Ark. July 6, 2005) (granting motion to strike).




• Some courts analyze the Rule 23 factors “through the lens” of Rule 12(f)

• Gill-Samuel v. Nova Biomedical Corp., 298 F.R.D. 693, 700 (S.D. Fla.

2014) (denying motion to strike).

– “[T]hough Nova invites the Court to analyze its Motion to Strike entirely under

the rubric of a Rule 23 motion, the Court deems it proper, instead, to view the

Rule 23 factors through the lens of the Rule 12(f) standard for motions to

strike. As a result, the proper inquiry upon Nova's motion is whether Plaintiff’s

class-action allegations are ‘redundant, immaterial, impertinent, or

scandalous.’ Fed.R.Civ.P. 12(f).”




• To note:

– Rule 23(d)(1)(D) expressly authorizes courts to strike class allegations, unlike

Rule 12(f)

– A Rule 12(f) motion cannot be made after a defendant has already filed a

previous motion under Rule 12

– Rule 12(f) motions must be filed “either before responding to a pleading, or if

a response is not allowed, within 21 days after being served with the

pleading.”

– Some courts also have local rules that expressly permit a motion to strike

class allegations; you should cite if applicable



Motions to Strike – Standard

• Stokes v. CitiMortgage, Inc., No. CV 14-00278 BRO (SHx), 2015 WL

709201, at *4 (C.D. Cal. Jan. 16, 2015) (“‘[W]here the matter is

sufficiently obvious from the pleadings, a court may strike class

allegations’ without first permitting class discovery.”)

• Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir.

Ohio 2011) (explaining it is appropriate to strike class claims where no

“discovery or . . . factual development” would alter the central defect in

the class claim)

• Pumputiena v. Deutsche Lufthansa, AG, No. 16 C 4868, 2017 WL

66823, at *8 (N.D. Ill. Jan. 6, 2017) (“[A] ruling on class certification is

appropriate at the pleading stage where the pleadings make clear that

Rule 23 cannot be satisfied.”)



Motions to Strike – Pros and Cons

•Pros

• The case may be over – or

drastically narrowed (which could

have corresponding narrowing

effects on scope of discovery)

• May begin to make judge skeptical

of class even if he or she does not

grant the motion

•Cons

• Denial of motion may incline the

court to later certify

• Even if successful, plaintiffs can

still respond with a new proposed

class definition

– May help plaintiffs “fix” their case

• The burden is on the defendant

rather than the plaintiff



Motions to Strike – Best Avenues

• Nationwide Class Definition

– State law variation

• Personal Jurisdiction

– Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017)

• Personal Injury/Medical Monitoring Classes

– Complicated and highly individualized factual inquiries

• Ascertainability

– Hard-to-Identify Class

– Subjective Class

– Fail-safe Class

– Overbroad Class



Motions to Strike – Best Practices

• Determine whether the pleadings are sufficiently detailed or the record

sufficiently developed to allow the court to determine that class

treatment is inappropriate – filing a motion too early could backfire and

make the judge less receptive to your arguments at the class

certification stage

• Do file a motion to strike if the barriers to certification are obvious from

the pleadings – courts are becoming increasingly receptive to motions to

strike where defendants demonstrate it is obvious from the pleadings

that the class cannot be certified

• Consult local rules and motion to strike case law in your jurisdiction;

some jurisdictions are more receptive to motions to strike class

allegations than others, but you should still file one in a jurisdiction that

disfavors them if you have a viable argument



Nationwide Classes1



Nationwide Classes

•Nationwide classes are often stricken due to variation in the laws of the fifty

states plus the District of Columbia

• Becnel v. Mercedes-Benz USA, LLC, No. CIV.A. 14-0003, 2014 WL 2506506, at *2 (E.D.

La. June 3, 2014) – granting motion to strike class proposed nationwide class of purchasers

of allegedly defective vehicles because “it is reasonable to assume that this matter will require

the application of laws from fifty-one different jurisdictions” creating “serious manageability

issues.”

• Rikos v. Procter & Gamble Co., No. 1:11-CV-226, 2012 WL 641946, at *5 (S.D. Ohio Feb.

28, 2012) – granting motion to strike nationwide class of purchasers of allegedly ineffective

probiotic because California law could not be uniformly applied to the claims of all proposed

class members and the applicable state warranty laws involved material differences.



Nationwide Classes

•But beware: Defendants are required to illustrate that legal variation exists

• Rysewyk v. Sears Holdings Corp., No. 15 CV 4519, 2015 WL 9259886,

at *1 (N.D. Ill. Dec. 18, 2015) (denying motion to strike nationwide class)

– Court noted that, unlike a motion for class certification, the defendant

bears the burden of showing class certification is improper in a motion to

strike.

– To do so, a defendant must “explain in []detail . . . how the relevant laws

of the different states differ in material ways—and to what degrees—so

as to make it apparent at this stage that individual questions will

predominate over common ones.”



Nationwide Classes

•Motions to Strike Challenging Nationwide Classes: Best Practices

• Illustrate material variations in the laws of specific states using caselaw so the court

can see exactly how the laws it would have to apply cannot be reconciled.

• Example:

– Reliance is not an element of an express warranty claim in Colorado and Virginia. Lutz Farms v. Asgrow

Seed Co., 948 F.2d 638, 644-45 (10th Cir. 1991); Daughtrey v. Ashe, 413 S.E.2d 336, 338-39 (Va. 1992).

– By contrast, other states, including Minnesota, Florida and Rhode Island, require proof of reliance to

state a claim for breach of express warranty. E.g., In re RFC & ResCap Liquidating Tr. Litig., No. 13-cv-

3451 (SRN/JJK/HB) et al., 2015 WL 3756476, at *4 (D. Minn. June 16, 2015); Jeld-Wen, Inc. v. Nebula

Glass Int’l, Inc., No. 05-60860-CIV, 2007 WL 5960207, at *13 (S.D. Fla. May 15, 2007); Sheehan v. N.

Am. Mktg. Corp., C.A. No. 05-364 S, 2008 WL 896152, at *5 (D.R.I. Apr. 2, 2008) (citing Thomas v.

Amway Corp., 488 A.2d 716, 720 (R.I. 1985)), aff’d, 610 F.3d 144 (1st Cir. 2010).

– By even further contrast, some states, such as Hawaii and Illinois, recognize a rebuttable presumption of

reliance. E.g., Torres v. Nw. Eng’g Co., 949 P.2d 1004, 1015 (Haw. Ct. App. 1997); Felley v. Singleton,

705 N.E.2d 930, 934-35 (Ill. App. Ct. 1999).



Personal Jurisdiction 2



Personal Jurisdiction

• Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct.

1773 (2017)

– 600 plaintiffs from 34 different states filed pharmaceutical products liability “mass

action” against defendant manufacturer in California state court

– Defendant argued that the state court lacked specific personal jurisdiction over it

with respect to claims brought by non-California plaintiffs and moved to quash

service of summons as to those claims

– Supreme Court agreed with defendant – in order to exercise specific jurisdiction,

“the suit must arise out of or relate to the defendant's contacts with the

forum.” Id. at 1780 (citing Daimler AG v. Bauman, 571 U.S. 117, 127, 134 S.Ct.

746, 187 L.Ed.2d 624 (2014) ) (internal citations omitted).




•BMS Takeaways

• Specific personal jurisdiction must arise out of defendant’s contacts with

the forum

• That the defendant’s conduct affected in-forum plaintiffs is not enough;

there must be a plaintiff/case-specific factual link

• That link can’t be satisfied as to absent class members who reside outside

the forum in a putative nationwide class action

– Remember that general jurisdiction would exist over the defendant in any state in which it is

“at home” (i.e., state of incorporation or state of principal place of business) – Daimler AG v.

Bauman, 571 U.S. 117, 122 (2014)

• But some district courts have refused to apply BMS to class members,

rendering it a dead letter in nationwide class actions in those venues




•Some courts have found BMS affects personal jurisdiction determinations in

class actions on consideration of a motion to strike

• Mussat v. IQVIA Inc., No. 17 C 8841, 2018 WL 5311903 (N.D. Ill. Oct. 26, 2018)

(granting motion to strike plaintiff’s class definition)

– BMS’s reasoning “bars nationwide class actions in for a where the defendant is not subject

to general jurisdiction. Whether it be an individual, mass, or class action, the defendant’s

rights should remain constant.” Id. at *6.

• Am.'s Health & Res. Ctr., Ltd. v. Promologics, Inc., No. 16 C 9281, 2018 WL

3474444, at *4 (N.D. Ill. July 19, 2018) (granting in part motion to strike)

– “In this class action, the Bristol Myers opinion is applicable and its import clear: The Court

lacks jurisdiction over the Defendants as to the claims of the nonresident, proposed class

members. As such, the Defendants' Motion is granted in relevant part, and those class

members who are not Illinois residents and who allegedly received the fax outside of this

state’s borders may not be part of this case. To the extent that the proposed class

allegations comprise any such unnamed plaintiffs, they are stricken.”




•Some courts have found BMS, as a mass tort case, does not apply to class

actions, or that it is premature to apply BMS at the motion to strike stage

• Al Haj v. Pfizer Inc., No. 17 C 6730 (N.D. Ill. Aug. 3, 2018) (denying motion to strike

nationwide class allegations)

– BMS is limited to the mass action context and does not require that specific jurisdiction be

established as to absent class members

• Jones v. Depuy Synthes Prod., Inc., No. 7:17-CV-01778-LSC, 2018 WL 6431013, at

*9 (N.D. Ala. Nov. 20, 2018) (declining to strike plaintiffs’ class allegations on

personal jurisdiction grounds)

– “Finally, the Court agrees with Plaintiffs that it is at least premature to strike the proposed

nationwide class on personal jurisdiction grounds. Due to the fact that Plaintiffs have yet to

move for class certification, applying Bristol-Myers at this juncture would require the Court

to undertake the nearly impossible task of conducting a specific jurisdiction analysis over

parties not yet before it.”




• Whole Foods recently brought the issue on interlocutory appeal to the D.C. Circuit

Court of Appeals in Whole Foods Market Group, Inc. v. Michael Molock, et al., (No.

18-7162) (D.D.C.); briefing is ongoing.

• Issue presented in Molock: Whether, in a class action, a court must find that the

defendant is subject to personal jurisdiction with respect to all class members’

claims, or only with respect to the named plaintiffs’ claims

• Chamber of Commerce filed amicus brief arguing courts must only allow class

actions to proceed if the defendant is subject to specific personal jurisdiction in the

forum with respect to each class member’s claim.

– If class members cannot maintain their claims as individual actions in the forum – then the

class action should not encompass those claims.

– The same due process principles apply in mass torts and class actions, so BMS should be

applicable to both




BMS arguments on motion to strike

• Plaintiff: Only the named parties are the real parties in interest

– Defendant: Any differences between named plaintiffs and absent class members do not

alter the personal jurisdiction inquiry; absent class members are still parties who would be

bound by any final judgment

• Plaintiff: Rule 23 provides due process safeguards that justify exemption of absent class

members from the reach of BMS

– Defendant: the provisions of Rule 23 exist largely to protect the rights of absent class

members, and they in any event do nothing to guard against the burden and federalism

issues that are the concern of the personal jurisdiction doctrine as explained in BMS

• Plaintiff: Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) supports the contention that

once a court properly asserts personal jurisdiction over the class representative’s claims, the

court also has jurisdiction over absent class members

– Defendant: Shutts dealt with the due process rights of nonresident class members – not the

due process rights of defendants, which involve different considerations.




•Motions to Strike Challenging Personal Jurisdiction: Best Practices

• Watch for appellate courts – and ultimately the U.S. Supreme Court – to resolve the

split.

• Until resolved, make a BMS argument if applicable

– If successful, could limit the amount of discovery the court finds permissible and will limit

value of the class claims in the aggregate

– If unsuccessful, will preserve the argument if the appellate courts ultimately determine that

BMS applies to class actions



Personal Injury/Medical

Monitoring3



Personal Injury/Medical Monitoring Classes

•Medical monitoring and personal injury classes involve complicated and

individualized factual inquiries

• In re Yasmin & Yaz (Drospirenone) Mktg., 275 F.R.D. 270, 279 (S.D. Ill. 2011)

– Striking nationwide class seeking personal injury damages and medical monitoring as a result of using allegedly defective birth control in light of legal and factual variations.

– Class certification inappropriate in personal injury cases, where proving causation will require:

» (1) “an examination of each class member’s medical history, including pre-existing

conditions and use of other medications;”

» (2) “an evaluation of potential alternate causes for the alleged injury;” and

» (3) “an assessment of individualized issues pertaining to each class member’s

prescriber” including the doctor’s knowledge of the risks.




• Sanders v. Johnson & Johnson, Inc., No. CIV. 03-2663 (GEB), 2006 WL 1541033, at *8 (D.N.J. June 2, 2006)

• Granting motion to strike class seeking medical monitoring after use of a product used to reduce post-surgical adhesions which plaintiff claimed caused her injuries

– State laws “vary with respect to the relief that Plaintiff seeks, including medical monitoring[.]”

– The court explained that “there are numerous individualized questions of fact that undercut Plaintiff’s claim of cohesiveness,” including “how individual class members were injured, what alternative causes may have led to their alleged injuries and the extent of those injuries.”

– Plaintiff also failed to show medical monitoring was appropriate because there “is no evidence . . . of any recommendations from the medical community for a medical monitoring program or clinical study of the effects of Intergel on its users.”




•Motions to Strike Challenging Personal Injury/Medical Monitoring Classes:

Best Practices

• Specify for the court the individualized variations that will affect plaintiffs’ claims:

medical histories, preexisting conditions, medications, possible alternative causes,

individualized issues regarding prescriber’s knowledge

• Note that courts almost never find medical monitoring classes certifiable at the

class certification stage and discovery will not change the reasons why



Ascertainability 4



Ascertainability

•Ascertainability = ease with which class members can be identified

• Class action defendants have long argued – and courts generally now

recognize (in varying degrees) – that “ascertainability” is an implicit

prerequisite to class certification

• Ascertainability serves three essential purposes at the class certification

stage:

– (1) It allows potential class members to identify themselves for purposes of opting

out of a class

– (2) It ensures that a defendant’s rights are protected by the class action

mechanism

– (3) It ensures that the parties can identify class members in a manner consistent

with the efficiencies of a class action



Ascertainability

•Ascertainability arguments on a motion to strike:

• The Hard-To-Identify Class

• Subjective Class

• “Fail-safe” Class

• Overbroad Class



Ascertainability: Hard-To-Identify Class

• The most actively litigated ascertainability issues are those that involve the

difficult-to-identify class.

• These arguments arise when determining membership in the proposed

class would be administratively burdensome.

• As one MDL court put it: a proposed class must be “sufficiently definite so

that it is administratively feasible for the court to determine whether a

particular individual is a member.”

– Solo v. Bausch & Lomb Inc., 2009 U.S. Dist. LEXIS 115029, at *13 (D.S.C. Sept.

25, 2009).




• These ascertainability issues can arise where:

– There are no receipts or other documents to enable members to prove they

purchased a product or service;

– The products are low-value items for which consumers tend to throw away proof

of purchase; and/or

– The claimant challenges a subset of a product (e.g., food products containing

GMO ingredients) and there is no way to tell which consumers received the

allegedly non-conforming product.




• For a long time, courts routinely certified low-value claims without concern

for ascertainability.

• The prevailing view was that “[e]ach individual class member need not be

identifiable at the class certification stage.” Guadiana v. State Farm Fire &

Cas. Co., No. CIV 07-326 TUC FRZ, 2010 WL 5071069, at *5 (D. Ariz. Dec.

7, 2010)

• Courts rejecting ascertainability arguments in these cases have held that a

class is ascertainable as long as class members “can be identified when

judgment is rendered.” Id.




• Split Among Circuits

– Decisions by the Third, Fourth and Eleventh Circuits have found a lack of

ascertainability where there was no administratively feasible way to

identify class members.

– By contrast, the Fifth, Sixth, Seventh, Eighth and Ninth Circuits have

rejected this approach and held that ascertainability requires only that the

class be identifiable through objective criteria.

– District courts in the Second Circuit have reached conflicting decisions

when addressing similar questions concerning ascertainability.




Ascertainability Requirement Not Met Where Identifying Class Members Not

Administratively Feasible

Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. Aug. 21, 2013)

– Parties stipulated that class members were unlikely to have proof of purchase,

such as packaging or receipts. Third Circuit rejected plaintiff’s two proposed

methods for ascertaining the class

– “Depending on the facts of a case, retailer records may be a perfectly acceptable

method of proving class membership. But there is no evidence that a single

purchaser of WeightSmart could be identified using records of customer

membership cards or records of online sales.”

– “A defendant has a similar, if not the same, due process right to challenge the

proof used to demonstrate class membership as it does to challenge the

elements of a plaintiff’s claim.”

– Under Carrera, plaintiff must prove at the class certification stage that the

ascertainability standard will be satisfied, and cannot win certification by merely

indicating that such evidence will be produced later




Ascertainability Requirement Not Met Where Identifying Class Members Not

Administratively Feasible

• Karhu v. Vital Pharmaceuticals, Inc., 2015 WL 3560722 (11th Cir. June 9,

2015)

– Eleventh Circuit held that plaintiff’s proposal to use the company’s sales data to

establish class membership was insufficient because defendant sold primarily to

distributors and retailers and records would not identify class members.

– A “plaintiff cannot satisfy the ascertainability requirement by proposing that class

members self-identify (such as through affidavits) without first establishing that

self-identification is administratively feasible and not otherwise problematic”

• EQT Production Co. v. Adair, 764 F.3d 347 (4th Cir. 2014)

– Plaintiffs alleged that two coalbed methane gas (CBM) producers had unlawfully

deprived class members of royalty payments from the production of CBM

– Fourth Circuit held that district court erred in failing to analyze whether classes

asserting CBM ownership claims were ascertainable without extensive and

individualized fact-finding




• Other circuits, however, have rejected this approach.

– Seeligson v. Devon Energy Prod. Co., L.P., No. 17-10320, 2019 WL 852060, at

*3 (5th Cir. Feb. 20, 2019) (rejecting defendant’s reliance on Carerra and finding

a party need only demonstrate “at some stage of the proceeding” that the class is

ascertainable)

– Rikos v. Proctor & Gamble Co., 799 F.3d 497 (6th Cir. 2015) (finding proposed

class ascertainable where class members could be identified through review of

defendant’s internal data supplemented by receipts, affidavits, and claim review)

– Mullins v. Direct Digital, LLC , 795 F.3d 654 (7th Cir. 2015) (declining to apply a

“heightened ascertainability requirement because it bars class treatment where it

“is often most needed: in cases involving relatively low-cost goods or services,

where consumers are unlikely to have documentary proof of purchase”)

– Sandusky Wellness Ctr. LLC v. Medfox Sci. Inc., 821 F.3d 992 (8th Cir. 2016)

(recognizing that other courts have imposed an administrative feasibility

requirement but declining to do so)

– Briseno v. ConAgra Foods, 844 F.3d 1121 (9th Cir. 2017) (finding class

proponents are not required to demonstrate administrative feasibility of class)




• The Second Circuit has issued seemingly conflicting decisions

– Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015) initially suggested

that it would fall in line with the Third, Fourth, and Eleventh Circuits in requiring

administratively feasible classes

» Second Circuit vacated class certification, finding an “implied requirement of

ascertainability in Rule 23” demanding the class be “sufficiently definite so that it is

administratively feasible for the court to determine whether a particular individual is a

member.”

– But then in In re Petrobras Securities, 862 F.3d 250 (2nd Cir. 2017), the Second

Circuit rejected defendants’ argument that the proposed class – those who

purchased certain securities in “domestic transactions” – could not be pratically

defined.

» The Court held that Brecher did not create a new ascertainability test

» Found that a heighted ascertainability requirement would be inconsistent with Rule 23

» Defendants filed a petition for a writ of certiorari to the U.S. Supreme Court but the case

settled before the petition was considered




• Despite the circuit split, and the Supreme Court’s recent appetite for

addressing class certification issues, the Court has declined to weigh in,

denying cert in three cases.

– Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1127 (9th Cir. 2017), cert. denied, 138 S.Ct.

313 (2017); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015), cert. denied,

136 S.Ct. 1493 (2016); Mullins v. Direct Dig., LLC, 795 F.3d 654 (7th Cir. 2015), cert.

denied, 136 S.Ct. 1161 (2016).

• In February 2017, H.R. 985, the Fairness in Class Action Litigation Act of

2017 (FICALA), was voted forward by the House Judiciary Committee.

FICALA contained a provision which would codify the administrative

feasibility requirement (FICALA § 1718(a)). The legislation was not taken

up by the Senate.

• Plaintiffs’ attorneys currently have an incentive to file low-value class

actions in circuits that do not follow Carrera.



Ascertainability – Subjective Inquiries

• Class definitions that turn on subjective criteria, such as a class member’s

mental state, have also been rejected by Courts.

• Rietdorf v. City of Fort Wayne, No. 1:15-CV-113 JVB, 2016 WL 245253

(N.D. Ind. Jan. 21, 2016).

– Court granted motion to deny certification of class of individuals who were

allegedly unconstitutionally detained by police against their will and without a

warrant or probable cause.

– Court held that proposed class failed on the pleadings for several reasons,

including the fact that determining class membership would require court to make

a subjective inquiry as to whether an individual was “detained against his will.”



Ascertainability – “Fail Safe”

•Fail-safe definitions fail on the pleadings

• Bell v. Cheswick Generating Station, No. 12-929, 2015 WL 401443

(W.D. Pa. Jan. 28, 2015)

– Granting motion to strike putative class of individuals who own or inhabit

residential property within a one-mile radius of the defendant’s coal-fired

electrical generating station and “whose property was damaged by noxious

odors, fallout, pollutants and contaminants” originating from the facility.

• Zarichny v. Complete Payment Recovery Services, Inc., No. 14-3197,

2015 WL 249853 (E.D. Pa. Jan. 21, 2015)

– Granting motion to strike proposed class consisting of individuals who received

telephone calls without the recipient’s prior express consent in violation of the

statute.

– Class was “defined so that whether a person qualifies as a member depends on

whether the person has a valid claim.”



Ascertainability – “Fail Safe”

• Fail-safe classes are problematic because they create a situation in which

class members are only bound by a judgment that finds the defendant

liable.

• If the class is defined as everyone who was wronged by the defendant and

the defendant prevails at trial, then it turns out that nobody was in the class

to begin with – and thus nobody is bound by the ruling.

– See, e.g., Genenbacher v. CenturyTel Fiber Co. II, 244 F.R.D. 485, 488 (C.D. Ill.

2007) (explaining that fail-safe classes are unfair because the result of resolution

of membership question is that class members “win or are not in the class”).

• Some courts, however, have rejected ascertainability arguments that

challenged the “fail-safe” nature of a proposed class

– See, e.g., Rysewyk v. Sears Holdings Corp., No. 15 CV 4519, 2015 WL 9259886

(N.D. Ill. Dec. 18, 2015) (crediting the defendants’ argument that the complaint

improperly set forth a fail-safe class, but nonetheless holding that this, alone, was

not grounds for striking class allegations. Instead, the court viewed the proposed

fail-safe class as a placeholder intended to give notice of the type of class the

plaintiffs eventually would seek to certify, rather than a final class definition)



Ascertainability – Overbroad Class

• Overbroad class = class that includes all users of a product or service,

irrespective of whether the proposed class members suffered any injury or

have any complaints about the product or service.

• Problem: An overbroad class includes many members who lack standing to

assert the claim alleged

• Plaintiffs must thread the needle: class definition must be such that the

class can be identified in objective and definite terms, but not too overly

simplistic such that it encompasses individuals who may not have been

injured

– This gives defendants an opportunity to attack from both sides




• Defendants’ arguments that a class is overbroad have been weakened by

recent appellate cases rejecting this argument.

– Whirlpool Corp. v. Glazer, 678 F.3d 409 (6th Cir. 2012) (affirmed class

certification of consumers alleging mold in washing machines even though 97

percent of class members never complained about any problem with their

washers; “[e]ven if some class members have not been injured by the challenged

practice, a class may nevertheless be appropriate”)

• The Supreme Court passed on an opportunity to intervene in Tyson Foods,

Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1044 (2016)

– The Court noted that “the question whether uninjured class members may

recover is one of great importance,” but concluded it was not properly before the

Court “because the damages award has not yet been disbursed, nor does the

record indicate how it will be disbursed.” It held that Tyson “may raise a

challenge to the proposed method of allocation when the case returns to the

District Court.”




•Motions to strike may not be as effective for overbroad classes because

courts often give plaintiffs the opportunity to redefine the class

• Hockenbury v. Hanover Insurance Co., No. CIV-15-1003-D, 2016 WL

552967 (W.D. Okla. Feb. 10, 2016):

– Proposed class stricken as overbroad because it included all insureds who

submitted claims during the class period, even if they benefited from filing a claim

or were not otherwise injured by the insurer’s alleged misconduct.

– Court granted leave to amend the class allegations, finding it was premature to

address the propriety of class treatment before an ascertainable class was

properly defined.



Ascertainability

•Motions to Strike Challenging Ascertainability: Best Practices

• Scrutinize class definition carefully to ensure you make any applicable

challenges

• Focus on challenging aspects of the class definition that cannot be fixed

through discovery

• Base arguments on due process requirements. See Carrera, 727 F.3d at

307; Karhu, 2015 WL 3560722, at *3.

• Pay attention to the law of your particular circuit with regard to

ascertainability arguments based on administrative feasibility of the class



Thank You

•Nina R. Rose

•Skadden Arps Slate Meagher & Flom

•[email protected]

•Sean P. Wajert

•Shook Hardy & Bacon


•Geoffrey M. Wyatt

•Skadden Arps Slate Meagher & Flom



Documents

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