A little more than six months ago, when I first began this blog, I posted about a tactic that was growing in popularity: filing a motion to deny certification rather than waiting for the plaintiff to file a motion to certify a class. Which raises the question, when is a motion to deny certification appropriate? Should it be filed after discovery? Or can it be filed earlier?
It really depends on the nature of the arguments the defendant will advance. If the class complaint contains legal flaws in the class, it may be possible to file a motion to strike the class allegations, essentially a rule 12(b)(6) motion to deny certification.
Take the case of John v. National Security Fire & Casualty Co. John was a class action in which the plaintiffs sued their insurance company for systematically under-paying their claims for damages in Hurricane Rita. (The plaintiffs alleged that the insurance company did not account for inflation in the costs of building materials.) The defendant filed a motion to dismiss and to strike the class allegations. Because it found that the class definition was not ascertainable, the court struck the class allegations.
The plaintiffs filed an interlocutory appeal, but the Fifth Circuit upheld the decision, holding:
Where it is facially apparent from the pleadings that there is no ascertainable class, a district court may dismiss the class allegation on the pleadings.
In other words, it is possible to file an early challenge to a class action, provided—like a Rule 12(b)(6) motion to dismiss—the flaws are apparent on the face of the complaint.