YOUNG LAWYERS A First-Round Knockout for Defendants Pre-Discovery Motions to Strike By W. Marion Wilson Class Allegations and Sam VanVolkenburgh Recent developments In class action litigation, success at the class certification have produced conditions stage can mean the difference between a case with a low- favorable to motions to dollar settlement value and a case with enormous liability strike class allegations exposure. For this reason, the fight over class certification is often considered “the whole ball game.” This article discusses the federal courts’ based on the pleadings Hartford Acc. & Indem. Co. v. Beaver, growing reception to pre- discovery strike 466 F.3d 1289, 1294 (11th Cir. 2006). But motions, examines the legal standards alone. Discover what defending putative class actions, partic- governing such motions, and identifies the ularly pre- certification discovery, can types of class action complaints that are to look for in pleadings become expensive long before the certifi- most susceptible to these motions. cation fight. Thus, there are strong incen- and how to do it. tives for defense counsel to attack the class An Improving Forecast allegations early in a case. One weapon in a for Strike Motions defendant’s arsenal is a motion to strike the The Federal Rules of Civil Procedure class action allegations filed at the plead- seem to contemplate pre- discovery strike ing stage, sometimes referred to as a pre- motions. Federal Rule of Civil Procedure discovery strike motion. 23(c)(1)(A) directs judges to consider class If class certification is the “ball game,” certification “[a]t an early practicable time then—to mix sports metaphors—a suc- after a person sues or is sued as a class cessful motion to strike class allegations representative.” Rule 23(c)(1)(A) does not at the pleading stage is the equivalent of a require a court to wait until a plaintiff “first-round knockout” in boxing. Even a moves to certify a class before ruling on the partial victory can narrow the scope of the certification question. Vinole v. Country- class claims, win considerable settlement wide Home Loans, Inc., 571 F.3d 935, 939– leverage, and avoid or minimize expensive 41 (9th Cir. 2009) (collecting cases). Nor class-related discovery. does it prohibit a defendant from seeking ■ W. Marion Wilson is a senior associate with Morris Manning & Martin LLP in Atlanta. Mr. Wilson focuses his practice in the areas of commercial and product liability litigation, with a particular emphasis on acting as national coordinating counsel for corporate clients involved in class actions or complex, high- exposure litiga- tion. He has been a DRI member since 2011. Sam VanVolkenburgh is an associate in the Class Action and Commercial Litigation practice groups of Morris Manning & Martin LLP. He has assisted with the defense of business disputes, tort claims, and related insurance coverage issues. 40 ■ For The Defense ■ April 2015 © 2015 DRI. All rights reserved. early resolution of the class certification sion in Pilgrim v. Universal Health Card There are two advantages to relying question before discovery. Id. LLC, 660 F.3d 943 (6th Cir. 2011), affirm- on Rule 23(d)(1)(D) as the basis to strike, Historically, however, courts have been ing a trial court’s pre- discovery strike of instead of or in addition to Rule 12(f). The “hesitant to delve deep into the merits of class allegations, has signaled to courts that first advantage is that Rule 23(d)(1)(D) the plaintiff’s class allegations” where there such motions are properly granted under expressly authorizes courts to strike class had been “no discovery whatsoever.” Smith the right circumstances. allegations, unlike Rule 12(f), which does v. Washington Post Co., 962 F. Supp. 2d not mention class allegations. See, e.g., Ben- 79, 90 (D.D.C. 2013). Pre- discovery strike Legal Basis for Pre- nett v. Nucor Corp., No. 3:04CV00291SWW, motions were considered “an extreme Discovery Strike Motions 2005 WL 1773948, at *2 (E.D. Ark. July 6, remedy,” Lawson v. Life of the S. Ins. Co., A “motion to strike class allegations” could 286 F.R.D. 689, 695 (M.D. Ga. 2012), to fittingly describe any motion brought by be granted only in “rare cases.” Clark v. a defendant for purposes of preemptively McDonald’s Corp., 213 F.R.D. 198, 205 challenging class certification. The focus Recent developments n.3 (D.N.J. 2003). Courts viewed them as of this article, however, is on pre- discovery attempts to “preemptively terminate the motions to strike based on the pleadings. in the law have produced class aspects of… litigation, solely on the A pre-discovery strike motion can be basis of what is alleged in the complaint, styled in various ways—as a motion to conditions more and before plaintiffs are permitted to com- strike the class allegations under Federal plete the discovery to which they would Rule of Civil Procedure 12(f), a motion to favorable to succeeding otherwise be entitled on questions relevant strike under Federal Rule of Civil Proce- to class certification.” Bryant v. Food Lion, dure 23(d)(1)(D), or, less commonly, as a with strike motions. Inc., 774 F. Supp. 1484, 1495 (D.S.C. 1991). motion to dismiss under Federal Rule of The courts’ reluctance to embrace pre- Civil Procedure12(b)(6). discovery strike motions is understand- 2005) (“A motion to strike class allegations able. The United States Supreme Court has Federal Rule 12(f) is governed by Rule 23, not Rule 12(f).”). held that a court may not rule on the cer- Federal Rule 12(f) states that a court may The second advantage relates to tim- tification question until it has conducted a strike from a pleading “any redundant, ing—under Rule 12(g)(2), a defendant can- “rigorous analysis” of the issue. Gen. Tel. immaterial, impertinent, or scandalous not make a Rule 12(f) motion after it has Co. v. Falcon, 457 U.S. 147, 161 (1982). Such matter,” acting either on its own or on a already filed a previous motion under Rule a “rigorous analysis” often requires a court motion advanced by a party. Rule 12(f) 12. The same restriction does not apply to to “probe behind the pleadings before com- does not expressly contemplate a motion Rule 23(d)(1)(D) motions. Dallas Cnty., Tex. ing to rest on the certification question.” to strike class allegations, but it generally v. MERSCORP, Inc., No. 3:11-CV-02733-O, Id. On the one hand, the Supreme Court can be invoked whenever it would make a 2012 WL 6208385, at *3 (N.D. Tex. Dec. has acknowledged that “[s]ometimes the trial less complicated or otherwise stream- 13, 2012). Similarly, Rule 12(f) motions issues are plain enough from the plead- line the ultimate resolution of an action. must be filed “either before responding to ings.” Id. On the other hand, however, it Rios v. State Farm Fire & Cas. Co., 469 F. a pleading, or if a response is not allowed, is only appropriate to rule on a motion to Supp. 2d 727, 733 (S.D. Iowa 2007). Thus, within 21 days after being served with the strike class allegations at the pleading stage courts have granted pre- discovery strike pleading.” There is no such time limit for if the “complaint itself demonstrates that motions premised upon Rule 12(f). E.g., motions brought under Rule 23(d)(1)(D). the requirements for maintaining a class Ott v. Mortg. Investors Corp. of Ohio, No. Cowit v. CitiMortgage, Inc., No. 1:12-CV- action cannot be met.” Landsman & Funk 3:14-CV-00645-ST, 2014 WL 6851964, at 869, 2013 WL 940466, at *2 n.1 (S.D. Ohio PC v. Skinder–Strauss Assocs., 640 F.3d 72, *11, *18 (D. Or. Dec. 3, 2014) (striking sub- Mar. 8, 2013). 93 n.30 (3d Cir. 2011). class on Rule 12(f) grounds). But recent developments in the law have Federal Rule 12(b)(6) produced conditions more favorable to suc- Federal Rule 23(d)(1)(D) On rare occasions, courts have construed ceeding with strike motions. After Twom- Federal Rule 23(d)(1)(D) is the more com- a motion to strike class allegations as a bly and Iqbal, plaintiffs now are required monly cited basis for a pre- discovery strike motion to dismiss the allegations under to plead more detailed allegations than motion. It provides, in relevant part, that Federal Rule 12(b)(6). E.g., Schilling v. Ken- ever before, sharing more about the fac- courts conducting putative class actions may ton Cnty., Ky., No. 10-143-DLB, 2011 WL tual bases for their class claims. At the issue orders that “require that the pleadings 293759, at *1 (E.D. Ky. 2011); Vlachos v. same time, the Supreme Court’s recent be amended to eliminate” the class allega- Tobyhanna Army Depot Fed. Credit Union, decisions in Comcast v. Behrend, 133 S. Ct. tions. It is sometimes cited alone, but of- No. 3:11-CV-0060, 2011 WL 2580657, at 1426 (2012), and Wal-Mart Stores, Inc. v. ten it is cited in combination with Federal *1–2 (M.D. Pa. June 29, 2011). However, Dukes, 131 S. Ct. 2541 (2011), have raised Rules 23(c)(1)(A) and 12(f). E.g., Rehberger since there are better options as discussed the standard necessary to achieve class cer- v. Honeywell Int’l, Inc., No. 3:11-0085, 2011 above, it is inadvisable to rely solely on Rule tification. Further, the high-profile deci- WL 780681, at *8 (M.D. Tenn. Feb. 28, 2011). 12(b)(6).