Often, when a defendant receives a class-action complaint, its first reaction is to see whether or not there are grounds to dismiss the action. (For defendants in federal court, that impulse is particularly acute since the Supreme Court handed down its opinion in Ashcroft v. Iqbal, which demonstrates little tolerance for purposely vague pleadings.) If the motion to dismiss succeeds, then the action goes away. But even if a complaint survives a motion to dismiss, the defense may still have achieved a valuable victory by setting up the eventual denial of class certification.

Take the 2008 case of In re FEMA Trailer Formaldehyde Products Liability Litigation, 2008 WL 5423488 (E.D. La. Dec. 29, 2008), a proposed class action in multi-district litigation alleging that various manufacturing defendants had built emergency trailers for victims of the devastating 2005 Hurricanes Katrina and Rita that exposed them to unsafe levels of the chemical preservative formaldehyde. Plaintiffs alleged causes of action for negligence, strict liability, and breach of warranty. The defendants moved to dismiss several of the plaintiffs’ claims that were brought under varying state laws, a motion the trial court denied. Later, however, when ruling on class certification, the court referred back to its decision on the motion to dismiss in finding that the named plaintiffs were not typical of the proposed class, in part because of the legal variations among the claims of various class members. In doing so, the trial court specifically stated that these legal variations were 

evident in the Court’s Order and Reasons [on the Motion to Dismiss], wherein the Court analyzed these claims in considerable detail according to the laws of the applicable states.

Courts are rarely this explicit about how their rulings on motions to dismiss may inform their decisions whether to certify a class. But there is little doubt that proffering valid legal arguments, even when they do not prevail at the motion-to-dismiss stage, can influence the court’s thinking when it later decides whether to certify a class. (Psychologists and behavioral economists refer to this effect as “framing.”) Sifting through complicated choice-of-law analyses or individualized allegations about statutes of limitations can help convince a court that a full-fledged class trial of individualized claims will be more work than it can adequately manage. Plaintiffs – who control the choice of forum, the complaint, and often even media contacts – have a number of powerful framing tools at their disposal. There’s no reason for the defendant to ignore those tools in its kit.