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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
6Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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
7Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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).
8Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Motions to Strike – Legal Bases
• 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).”
9Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Motions to Strike – Legal Bases
• 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
10Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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.”)
11Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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
12Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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
13Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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
14Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Nationwide Classes1
15Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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.
16Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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.”
17Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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).
18Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Personal Jurisdiction 2
19Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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).
20Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Personal Jurisdiction
•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
21Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Personal Jurisdiction
•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.”
22Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Personal Jurisdiction
•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.”
23Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Personal Jurisdiction
• 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
24Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Personal Jurisdiction
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.
25Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Personal Jurisdiction
•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
26Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Personal Injury/Medical
Monitoring3
27Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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.
28Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Personal Injury/Medical Monitoring Classes
• 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.”
29Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Personal Injury/Medical Monitoring Classes
•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
30Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability 4
31Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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
32Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability
•Ascertainability arguments on a motion to strike:
• The Hard-To-Identify Class
• Subjective Class
• “Fail-safe” Class
• Overbroad Class
33Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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).
34Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability: Hard-To-Identify Class
• 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.
35Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability: Hard-To-Identify Class
• 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.
36Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability: Hard-To-Identify Class
• 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.
37Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability: Hard-To-Identify Class
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
38Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability: Hard-To-Identify Class
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
39Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability: Hard-To-Identify Class
• 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)
40Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability: Hard-To-Identify 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
41Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability: Hard-To-Identify Class
• 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.
42Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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.”
43Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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.”
44Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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)
45Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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
46Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability – Overbroad Class
• 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.”
47Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Ascertainability – Overbroad Class
•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.
48Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
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
49Deploying Pre-Certification Motions to Strike Class Allegations: Best Practices
Thank You
•Nina R. Rose
•Skadden Arps Slate Meagher & Flom
•Sean P. Wajert
•Shook Hardy & Bacon
•Geoffrey M. Wyatt
•Skadden Arps Slate Meagher & Flom