Federal Rule of Civil Procedure 23 provides class action defendants with an important—but underused tool—a Rule 23(d) trial plan. A trial plan requires a plaintiff to set out a proposal for how it will present evidence on a class-wide basis at trial if a class is certified. This article examines the authority for compelling a trial plan, the advantages and disadvantages of doing so, and what cases lend themselves to defendants’ use of this procedural option.
To proceed with a class action under Federal Rule of Civil Procedure 23(b)(3), a plaintiff must establish, among other factors, that “the difficulties likely to be encountered in the management of a class action” will not overwhelm the litigation. See Fed. R. Civ. P. 23(b)(3)(D). While some courts take a different approach, see, e.g., Chamberlan v. Ford Motor Co., 402 F.3d 952, 961 n.4 (9th Cir. 2005), the Eleventh Circuit “recommends that district courts make it a usual practice to direct plaintiffs to present feasible trial plans as early as practicable when seeking class certification.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1278–79, n.20 (11th Cir. 2009) (decertifying class and noting that plaintiff had done nothing to acknowledge individualized issues or propose a trial plan that would feasibly address them).
Courts “cannot rely merely on assurances of counsel that any problems with predominance or superiority can be overcome.” Castano v. Am. Tobacco Co., 84 F.3d 734, 742 (5th Cir. 1996). Rather, courts must conduct a “rigorous analysis” to guarantee that a plaintiff has satisfied Rule 23. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982); Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001).
Several courts have observed that trial plans assist in this “rigorous analysis.” BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 778 (Tex. 2005) (“The formulation of a trial plan assures that a trial court has fulfilled its obligation to rigorously analyze all certification prerequisites and understands the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.”).
Rule 23(d) provides the trial court with the authority to order trial plans. It states that “the court may issue orders that: (A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument.” Fed. R. Civ. P. 23(d)(1). The 2003 amendments to Rule 23 that introduced the concept of a trial plan “focus[] attention on a rigorous evaluation of the likely shape of a trial on the issues.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 319–20 (3d Cir. 2008).
Likewise, the Manual for Complex Litigation provides that the “Federal Rules of Civil Procedure, along with the court’s inherent power, provide ample authority for early and ongoing control of discovery in complex litigation. Fundamental to controlling discovery is directing it at the material issues in controversy.” Manual for Complex Litigation § 11.41. A discovery plan or trial plan “should facilitate the orderly and cost-effective acquisition of relevant information and materials and the prompt resolution of discovery disputes.” Id. § 11.42. The plan should address “the form and timing of disclosure, the subjects of and completion date for discovery, and the possibility of phasing, limiting, or focusing discovery in light of the issues.” Id. § 11.421. In many situations, requiring named plaintiffs to submit a trial plan setting forth their proposed procedures for discovery into the individualized circumstances of putative class members would aid in “focusing discovery in light of the issues” and would “facilitate the orderly and cost-effective acquisition of relevant information.” Id. § 11.421, § 11.42.
The Eleventh Circuit explained that “the proposal of a workable trial plan will often go a long way toward demonstrating that manageability concerns do not excessively undermine the superiority of the class action vehicle.” Vega, 564 F.3d at 1278–79 n.20. “Moreover, there is a direct correlation between the importance of a realistic, clear, detailed, and specific trial plan and the magnitude of the manageability problems a putative class action presents.” Id.; see In re Checking Account Overdraft Litig., 307 F.R.D. 630, 652 (S.D. Fla. 2015) (finding that “the proposed special verdict forms and supporting surveys of law submitted by Plaintiffs with their Trial Plan illustrate that the variations among the applicable state laws are not material and can be managed to permit a fair and efficient adjudication by the trier of fact”).
A number of trial court decisions have cited Vega and required trial plans in similar circumstances. Petersen v. Am. Gen. Life Ins. Co., 2016 WL 11712973, at *1 (M.D. Fla. Mar. 11, 2016) (finding “that a trial plan would assist the court” in determining class certification); James D. Hinson Elec. Contracting Co., Inc. v. BellSouth Telecomms., Inc., 642 F. Supp. 2d 1318, 1328 n.8 (M.D. Fla. 2009) (citing Vega and noting that it would “expect” the class plaintiff to submit a trial plan); N. Star Capital Acquisitions, LLC v. Krig, 611 F. Supp. 2d 1324, 1338 n.16 (M.D. Fla. 2009) (same, also citing Vega).
While some courts have taken a different approach, the Fifth Circuit is in accord with the Eleventh Circuit in identifying the necessity for trial plans in class action cases. See Castano, 84 F.3d at 740 (requiring a plaintiff seeking class certification to submit a trial plan). Accordingly, several district court decisions have denied class certification without a trial plan that explained how individual issues would not create a problem. See MP Vista, Inc. v. Motiva Enters., LLC, 286 F.R.D. 299, 313 (E.D. La. 2012) (Brown, J.) (“Plaintiffs have failed to provide a workable trial plan. As such, class certification in this action would result in the case ‘degenerating into a series of individual trials.’”) (quoting O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 738 (5th Cir. 2003)); Colindres v. QuitFlex Mfg., 235 F.R.D. 347, 380 (S.D. Tex. 2006) (Rosenthal, J.) (“[T]he class proposed by the plaintiffs cannot be certified under Rule 23(b)(2) because . . . the plaintiffs have not proposed a trial plan. . . .”); Neely v. Ethicon, Inc., 2001 WL 1090204, at *14 (E.D. Tex. Aug. 15, 2001) (“The Court is not wholly convinced that Plaintiffs’ proposed trial plan would not violate the Seventh Amendment.”).
Likewise, at least some district court decisions outside the Fifth Circuit and Eleventh Circuit are in accord. See, e.g., Stephens v. Nordstrom, Inc., 2018 WL 7143623, at *6 (C.D. Cal. Dec. 26, 2018) (“Plaintiff must clearly articulate a viable trial plan and explain how she would limit her proposed class so that it meets all requirements of Rule 23(a) and Rule 23(b)(3)”); Haley v. Kolbe & Kolbe Millwork Co., Inc., 2015 WL 9255571, at *2 (W.D. Wis. Dec. 18, 2015) (finding that, along with their amended motion for class certification, “plaintiffs must submit a proposed trial plan that describes in detail the issues likely to be presented at trial, discusses whether and how those are susceptible to class-wide proof and explains how individual inquiries could be handled”); Packard v. City of New York, 2020 WL 1467127, at *3 (S.D.N.Y. Mar. 25, 2020) (evaluating plaintiff’s trial plan and observing that the trial plan made clear that “the Court would be unable to resolve the question of the City’s liability without individualized inquiry”).
Defendants should be mindful, however, that successfully compelling a trial plan can backfire. If, for example, a plaintiff is able to present a comprehensive and compelling trial plan that satisfies the court, it may significantly weaken a defendant’s prospects for defeating class certification. However, even in that circumstance, the trial plan will likely have revealed the plaintiff’s strategy and provided valuable insight for the defense.
