Despite the ongoing COVID-19 pandemic, plaintiffs continue to file class actions, shouldering defendants with potentially massive discovery costs. With the economic slowdown associated with the pandemic, businesses face increased pressure to manage litigation costs like these. One way to manage those costs is to rethink the traditional approach to conducting class action discovery.

Traditionally, courts have bifurcated discovery into class and merits stages based on the notion that narrow class discovery will preserve party resources until and unless a class is certified. However, this benefit often proves illusory as plaintiffs undertake, and courts allow, broad class discovery that substantially overlaps … Continue Reading

Professor Suja Thomas (of Oddball Cases fame) has jumped into the debate over proportionality in discovery with a post over at Prawfsblawg.  The debate, prompted by the upcoming amendments to FRCP 26, asks whether a party should be able to withhold discovery on the grounds that it is disproportionate to the needs (and the amount in controversy) of a given case.

Class action defendants have an obvious incentive to support the proportionality amendment. After all, between e-discovery and the asymmetric discovery that exists in class actions, defendants can face immense pressure to settle meritless claims simply to avoid Continue Reading

 It’s a tale as old as the Telephone Consumer Protection Act ("TCPA"): defendant Janssen Pharmaceuticals sent out a fax reporting on the reclassification of its drug Levaquin for insurance purposes. The plaintiff sued it for violating the TCPA, claiming the fax was an advertisement; Janssen responded that the content of the fax was informational. It won a motion to dismiss, but the court allowed the plaintiff to file an amended complaint.

At that point, Janssen moved the court to bifurcate discovery. But where the typical motion to bifurcate asks for merits discovery after class-related discovery, Janssen asked for Continue Reading

 In Thornton v. DaVita HealthCare Partners., Inc., No. 13-cv-00573-RBJ-KMT, 2013 U.S. Dist. LEXIS 145458 (D. Colo. Oct. 8, 2013), the plaintiffs filed a class action alleging various causes of action in the wake of a recall of certain brands of dialysis equipment. The case grew rapidly, and eventually involved several consolidated complaints.

The defendants filed a comprehensive motion to dismiss. With it, they filed a motion to stay the litigation until the court had decided the dispositive motion. Motions to stay do not always get traction with courts; they’re often viewed as merely a delaying tactic. This time, however, … Continue Reading

 Plaintiffs filed a class action complaint against defendant Tournament One Corp. in Nevada state court. Tournament One removed the case to federal court, and immediately filed a Motion to Compel Arbitration and a Motion to Dismiss, or, in the alternative, to stay the case pending the arbitration motion.

In the resulting opinion, Kidneigh v. Tournament One Corp., 2013 U.S. Dist. LEXIS 62217 (D. Nev. May 1, 2013), The trial court stressed that the Rules of Civil Procedure do not allow for automatic stays of discovery just because a dispositive motion is pending. But, observing that "discovery is expensive," it … Continue Reading

Amber Pieloor filed a class action against her bank, the Gate City Bank of North Dakota. She accused the bank of re-sequencing a number of her financial transactions. Re-sequencing occurs when a bank records transactions in an order other than that in which they were received. Accusing banks of re-sequencing has become common; and it appears that some banks, in fact, have re-sequenced debits–charging the largest ones first before moving on to smaller debits–in order to maximize the number of overdraw fees they can charge.

There were two problems with Ms. Pieloor’s complaint. First, she was not arguing that … Continue Reading

In 2007, four customers of Allstate Insurance Company sued it, alleging that it used outdated scoring algorithms to calculate their premiums, in violation of the Illinois Consumer Fraud Act.  They were later joined by another 19 named plaintiffs. Three years later, in 2010, the judge in the case denied certification and dismissed twelve of the named plaintiffs (leaving eleven total). Seven months later, the remaining eleven named plaintiffs voluntarily dismissed their claims with prejudice.

All in all, not bad for Allstate, right? Well, that depends. It had not been found liable, but it did incur more than $980,000 in … Continue Reading

The facts underlying the allegations in Boeynaems v. L.A. Fitness Int’l, LLC, 2012 U.S. Dist. LEXIS 115272 (E.D. Pa. Aug. 16, 2012) are hardly remarkable. The plaintiffs allege that they signed up for gym memberships at a chain gym with no problem, but encountered serious difficulties when they later tried to cancel, a fact pattern that was old when it appeared on 1990s sitcoms NewsRadio and Friends.

And the fact pattern leading to plaintiffs’ motion to compel documents that forms the basis of this opinion is unremarkable as well. The plaintiffs sought sweeping discovery. The defendants, seeking to … Continue Reading

Typicality tends to be a useful, if not always used, way of framing various class action issues. Its primary purpose is to ensure that the class action is really a representative lawsuit rather than just an individual case with pretensions. Given the rulings on typicality so far, it’s worth asking how defendants might argue it more effectively.

Ten Cases to Bring You Up to Speed:

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 One of the tough things about defending class actions is the fact that discovery is asymmetrical. Some plaintiffs use the fact that corporate defendants generate huge numbers of documents to inflict significant costs on the defense by serving large numbers of marginal relevance to any class claims.

So, when plaintiffs withhold actually relevant information, that tends to add insult to injury.

That’s what happened in Barnes v. Equinox Group, 2012 U.S. Dist. LEXIS 82688 (N.D. Cal. 2012). During the discovery phase of Barnes, the defendant took nine depositions: those of the two named plaintiffs, the plaintiffs’ expert, and … Continue Reading