This continues our series of blog posts on effective partnering between inside and outside counsel to defend against class action lawsuits.
It is important to remind the court frequently that the plaintiffs bear the burden of proving that class certification is appropriate, just as the plaintiffs have to prove everything else they allege in their complaint. [1] Typically, plaintiffs will want to file a boilerplate motion for class certification drawn solely from the allegations of the complaint and then save any evidentiary showing they may plan to make as “rebuttal” after the defendant files its opposition to class certification. Outside counsel should oppose this gamesmanship and insist upon a procedure that requires plaintiffs to lay out their entire basis for class certification first. At a minimum, raising this issue with the court may require class counsel to make admissions on the record that they need no discovery to support their affirmative showing for class certification and that they are prepared to do so based on what they knew in filing the complaint. The company certainly will want a case management order that affords the defense adequate time to take discovery after plaintiffs file their motion for class certification and that specifically provides for the identification of experts, disclosure of expert opinions, and depositions of experts before the opposition to class certification must be filed.
Our next post will discuss the class certification hearing.
[1] See, e.g., Williams v. Ford Motor Co., 192 F.R.D. 580, 583 (N.D. Ill. 2000) (“The burden is on the party seeking class certification to establish each of these elements.”); Ortiz v. Ford Motor Co., 909 So. 479, 481(Fla. Dist. Ct. App. 3d Dist. 2005) (same holding under state-law counterpart of rule 23).
