Class actions present litigants with unique incentives. Because the risk of class-wide liability is often substantial, defendants may have an incentive to settle even a meritless case to avoid the risk of potentially crippling liability. On the other hand, if individual class members’ damages are small, as they often are in class cases, plaintiffs may lack a monetary incentive to pursue their claims unless they can proceed as a class. These competing concerns encourage defendants to try to defeat class action allegations early in the lawsuit. But how early in a case can defendants challenge class allegations? This article explores that question in light of recent Supreme Court precedent, particularly Comcast v. Behrend, 133 S. Ct. 1426 (2012).
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