This continues our series of blog posts on effective partnering between inside and outside counsel to defend against class action lawsuits. This post begins our multi-part discussion of strategies in class action engagement.

Focus on defeating class certification. Although defense of a class action will resemble the defense of any complex business litigation, there are important differences. The plaintiffs’ use of the class action procedural device is the “elephant in the room” that will give this particular form of litigation great leverage over a corporate defendant due to the extent of the financial exposure and the threat to the defendant’s product line or business model. As a result, the defense should focus intently on defeating class certification.

This goal should inform the company’s strategy in determining whether to move to dismiss the complaint. For example, if the named plaintiffs’ claims are time-barred, filing a motion to dismiss based on the statute of limitations may well stave off the class action entirely if plaintiff’s counsel is unable to find a suitable substitute class representative. Putting this defense in play also will highlight the predominance of individual issues in the litigation and may help defeat class certification. At other times, the company may forego moving to dismiss certain claims on the merits, such as fraud, because their inclusion in the complaint may necessitate the litigation of individual issues that ultimately will assist in defeating class certification.

Do not assume a class will be certified. Too often, corporate defendants simply roll over on class certification, taking too much to heart the characteristically confident assertions in the complaint that the case should be certified as a class action or statements in judicial decisions indicating that class certification may be favored in this area or that. Class certification always will depend upon the rigorous application of numerous principles and criteria to often highly variable facts.[1]  Class certification is highly complex and eminently contestable in many setting in many different ways. Never assume otherwise without mounting an intensive legal and factual investigation into the matter.

Elements of Claims and Defenses; Classwide Proof
Every defense begins with understanding the elements of all claims and defenses. In class actions, this also includes the plaintiff’s theory for class certification and the legal standards that will govern the theory. In most cases, the plaintiffs will seek class treatment under Rule 23(b)(3) or its state law equivalent (discussed in more detail in later posts). This is the type of class action that best supports a claim for money damages. The company’s principal defenses to such a class action may include the following:

Our next post will continue the discussion of strategies in class action engagement.

[1] See, e.g. Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 595 n. 13, 127 S.Ct. 1955, 167 L. Ed. 2d 929, 68 Fed. R. Serv., 3d 661 (2007) (stating that “Rule 23 requires ‘rigorous analysis’ to ensure that class certification is appropriate”) (citing General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed 740, 34 Fed. R. Serv. 2d 371 (1982) and In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2d Cir. 2006), decision clarified on denial of reh’g, 483 F.3d 70 (2d Cir. 2007)).

• The class definition is insufficient because it does not lend itself to a determination of who is a class member based on readily ascertainable objective factors.
• The class representative (or class counsel) are not adequate representatives.
• Common issues do not predominate; rather, the case will be rife with individual issues and defenses and will not be manageable as a class action.