A plaintiff’s motion for class certification is often the focal point of discussions regarding class action procedure, theory, and strategy. Federal courts recognize that denial of a class-certification motion can serve as the “death knell” to the individual claims of absent proposed class members, while certification of a class often imposes such an “in terrorem” effect on defendants as to effectively force a settlement. See Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1708 (2017). Federal Rule of Civil Procedure 23, however, does not force defendants to sit on their hands until the named plaintiff files a certification motion.
Rule 23(c)(1) requires courts to determine class certification at “an early practicable time.” Yet, in practice, it often takes years to litigate a case through class discovery, related expert issues, and class-certification briefing. But there are a variety of strategic options available to a defendant facing a class action complaint. While the optimal approach depends on a variety of case-specific factors, such as the causes of action alleged, the nature of the factual allegations, and the client’s desired litigation strategy, the following options should at least be considered at the outset of defending a class action lawsuit.