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Five Important but Often Overlooked Aspects of Consumer Class Actions

Mark Anthony Romance and Andrew Robert Ingalls


  • Consumer class actions are once again on the rise. Many lawyers who do not routinely handle class actions are taking these cases, looking for a payday on the plaintiffs’ side or to help a long-standing corporate client on the defense side.
  • The cases are incredibly interesting and complex, and because very few class actions go to trial, they often hinge on seemingly mundane decisions surrounding varying basic aspects of the case.
  • While every class action is fact- and law-specific, here are some general tips for handling five key issues common in consumer class actions.
Five Important but Often Overlooked Aspects of Consumer Class Actions
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With potentially high rewards for plaintiffs and devastating exposure for defendants, consumer class actions are once again on the rise. Many lawyers who do not routinely handle class actions are jumping into the action, looking for a payday on the plaintiffs’ side or to help a long-standing corporate client on the defense side. The cases are incredibly interesting and involve some of the most complex aspects of civil procedure and case strategy. Because very few class actions go to trial, the key to achieving success often hinges on seemingly mundane decisions surrounding varying basic aspects of the case. Plaintiffs should avoid potentially class-killing surprises, and defendants should be aware of all available defenses and methods for preventing class certification. While every class action is fact- and law-specific, here are some general tips for handling five key issues.

Apply Strategy to Your Scheduling Order

The sequence of deadlines for expert disclosures, dispositive motions, motions for class certification, and completion of discovery can provide significant tactical advantages in class actions. Unfortunately, many lawyers allow the deadlines to be set before they have a game plan for success in the case. In situations where the court allows input into the scheduling order, a failure to plan ahead can create serious unforeseen issues, especially because once a judge issues a scheduling order, it can be nearly impossible to change it.

In crafting a proposed scheduling order, careful thought must be given to setting deadlines to complete discovery in relation to motions for summary judgment, expert disclosures, and motions for class certification. For plaintiffs, it is helpful if the deadlines to file motions for class certification and summary judgment occur prior to the close of discovery. That way, if a defendant raises a potentially fatal issue or a missing piece of evidence in its opposition to the plaintiff’s motion for class certification or in a summary judgment motion, the plaintiff will have the opportunity to conduct additional discovery to alleviate the issue prior to any ruling. On the other hand, defendants often benefit from having discovery close before class certification and summary judgment deadlines so that a plaintiff cannot seek discovery to correct any fatal deficiencies.

Similarly, plaintiffs benefit from a schedule that requires expert disclosures before fact discovery is closed so that additional discovery can be used to correct or supplement their expert’s opinion. On the other hand, closing fact discovery before expert disclosures benefits a defendant as the plaintiffs will be unable to provide additional factual evidence to their expert if needed to bolster or even alter the expert’s opinions.

Another consideration is bifurcation of class discovery from plaintiff-specific fact discovery. Most courts do not permit such bifurcation because it can create a multitude of additional issues, including slowing the case down. A ruling on class certification is often the trigger to resolution of a case, so bifurcation could save both sides significant resources by avoiding time and money spent on non-certification experts, discovery, and motion practice, should certification be denied.

There is no doubt that these are generalizations, and in particular cases, the opposite of each of these strategies about scheduling orders could be true. But in general, plaintiffs benefit by having discovery remain open after the deadline for motions for class certification, expert disclosures, and summary judgment so that they can potentially correct defects in their cases. On the other hand, defendants benefit by closing discovery early so they can lock plaintiffs into their legal and expert positions, and potentially take advantage of holes in the plaintiffs’ cases.

Do Not Overlook the Class Representative

Selecting the right class representative is critical to a plaintiff’s case because it is a focal point of Rule 23 and therefore one of the areas where defendants can successfully defeat class actions. Among other class certification requirements, Rule 23 requires a plaintiff to prove that the putative class representative’s claims are typical of the claims of the class and that the class representative will “adequately” protect the interests of the class. The first threshold question is whether the putative representative’s individual claims fall within the class definition. If so, the plaintiff’s claims are typical if the plaintiff suffered the same wrong and in substantially the same way as the other class members. Defendants will probe the facts surrounding a representative’s claim in an attempt to show that they do not fit the class definition or are substantially different than the claims of the other class members. A plaintiff’s counsel, therefore, must rigorously examine the representative and critically evaluate the representative’s documentation to ensure that the representative falls solidly within the class definition and is not dissimilar from other putative members. Many courts deny class certification motions where the defendant demonstrates that the representative’s claim is outside the class period or definition.

Another important question on the typicality issue is whether the defendant has defenses that are unique to the plaintiff and not available for other class members. For example, will the representative’s claim be subject to statute of limitations defenses? Will the facts show that the representative had interactions with the defendant that are different than the interactions of the other claimants? Is there an argument that the representative waived his or her claim? Plaintiffs’ attorneys often invest tens of thousands of dollars, if not more, in a potential class action case. Before filing the lawsuit and committing the investment, plaintiffs’ counsel must investigate their own client and cross-examine the client before filing the complaint to identify and evaluate the risks involving this potential representative’s claims.

On the defense side, counsel must investigate the representative and probe defenses in advance of deposing the claimant. Both before and during the deposition of a representative, defense counsel must explore all opportunities to show unique defenses to or aspects surrounding the representative’s claims to support an argument that they are not typical of the class that they seek to represent.

A plaintiff must also demonstrate that he or she will “adequately” represent the class. While defendants have successfully challenged representatives on the grounds that the plaintiff is a “serial” or “professional” class action litigant, courts generally find that ground insufficient for disqualification, absent some showing of bad-faith conduct by the putative representative. Other challenges include criminal histories, instances where a representative has contacted defendants to try to settle the representative’s individual claims, or where the putative representative is unwilling to dedicate the time and effort to be involved in the case to assist counsel or attend events such as depositions, mediation, or hearings. Plaintiffs’ counsel should consider proffering more than one putative class representative as a fail-safe in case unexpected facts turn up in discovery.

The issue of “standing” has also become a key issue in choosing or attacking a putative class representative. Under recent U.S. Supreme Court precedent, a plaintiff alleging a statutory violation without demonstrating concrete harm does not have Article III standing. For example, where a plaintiff learns that a defendant took action as it relates to the plaintiff in violation of a federal consumer protection statute, and where it is likely that the defendant engaged in the same conduct involving hundreds or thousands of additional consumers, a plaintiff can likely prove a violation of the statute and satisfy the class action requirements. But, if the plaintiff was unaware of the violation until it was brought to his or her attention by his or her lawyer or through another source, and cannot prove he or she was harmed by the violation, the plaintiff may lack standing to pursue the claim.

Plaintiffs’ counsel would be wise to investigate their own client before investing in the case and proffering that client as a class representative. Defense counsel must conduct their own investigation, through formal discovery and informally, such as hiring a private investigator, to uncover facts that can be used to challenge the representative’s substantive and class claims.

Choose Expert Witnesses Wisely

Experts are critical to every complex case but more so in class actions in which expert testimony is needed to establish or challenge the class certification requirements. In most cases, class certification rises or falls on expert testimony. In many jurisdictions, one key issue of expert testimony, which often combines class certification and merits issues, is whether a reliable method exists to identify class members. Accordingly, plaintiffs’ counsel should ensure that the expert’s analysis shows that the putative representative is actually a member of the defined class, lest they leave their expert’s methodology open to easy attack.

A certification motion must establish the qualifications of any expert used in support, but attacking the credentials of an expert in opposition is rarely worth the effort. Judges typically accept minimal qualifications and instead determine that qualifications go to the weight rather than the admissibility of an expert’s opinions. On the other hand, parties should challenge opinions that are nothing more than legal conclusions disguised as expert testimony. An expert’s opinion, for example, cannot simply track the legal requirements. The opinion should avoid legal terms and anything that can be characterized as legal analysis. An expert’s opinion should instead focus on explaining the facts and providing non-legal opinions.

Before selecting an expert, counsel should conduct a thorough examination of reported and unreported decisions involving the expert to identify potential challenges. But just because a court excluded your expert’s opinion in another case does not mean that your expert is not a good expert for your case. Significant thought must be given as to how your expert’s exclusion in a prior case can be distinguished or explained adequately in your case to justify the risk. In opposing an expert, it is obviously important to locate as many instances where the expert’s opinion was criticized or excluded and analogize them to your case. Many judges will not blindly follow another court’s decisions; instead, they will attempt to determine whether the challenge in a particular case justifies exclusion or “goes to the weight” of the evidence.

Keep Class Certification Motions Focused on Key Issues

In many jurisdictions, the courts do not extend the page limits for certification motions, presenting challenges to counsel to limit their arguments. A plaintiff’s motion must show that each of the Rule 23 elements is satisfied, and it should anticipate the defenses likely to be raised in opposition and at least address them on some level to explain why the challenges fail. But plaintiffs’ counsel do not want to unnecessarily raise issues that the defense may not be aware of or that they strategically choose not to raise. It is a delicate balance for plaintiffs’ counsel, and particularly challenging, given the page limits.

On the defense side, do not be tempted to throw in the “kitchen sink” in your opposition. While you have likely worked for years developing numerous arguments that you think easily defeat class certification, the better strategy is to include only a handful of your strongest defenses and explain in more detail why they defeat certification. While the case may be one of the most important of your career and a crucial event for your client, it is one of thousands of cases for your judge and the judge’s staff, and they simply cannot dedicate the time to explore every potential defense. Picking and choosing the strongest defenses and keeping within the page limits are two of the most challenging aspects of opposing class certification motions.

In addition, while it may be tempting for both sides to incorporate by reference portions of deposition testimony and expert reports to “save space” in their class certification briefing, the motion or opposition should quote from and summarize the key supporting materials, rather than just incorporate them by reference. If the substance was not important enough to include in the brief, the court will likely not dive into the materials to find support for the arguments.

While adequacy of counsel and the putative representative are Rule 23 elements, judges are typically not persuaded by personal attacks—even where the facts and conduct appear to be egregious. Defense counsel should focus instead on the facts and law that defeat certification.

Finally, it is important to review rulings by your judge in other class action cases to help determine what to include in your brief. If relevant, it may be helpful to cite some of your judge’s prior rulings in your brief and explain why the prior rulings apply to your case.

Use Post-Certification Briefing to Win the Case or Force Settlement

An order granting or denying a motion for class certification almost always results in settlement. But where parties are so far apart that a settlement shortly after class certification is unlikely, the obligation to move forward with post-certification briefing will advance the case toward trial and may also provide opportunities to gain leverage in settlement negotiations.

Federal Rule of Civil Procedure 23(f) permits a plaintiff or defendant to file a discretionary appeal of a class certification motion (or decertification motion), so long as the petition is filed within 14 days after the class certification order is entered. Such petitions are granted only in very narrow circumstances, such as when the district court’s certification decision is manifestly erroneous. The filing of an appeal does not stay the case without a corresponding stay order.

At a class action trial, the plaintiff bears the burden of demonstrating an appropriate and realistic plan for trial of the class claims. As noted in the advisory committee notes to Rule 23, there is a “critical need” to “determine how a class action will be tried.” Accordingly, defendants facing a class action trial should move to compel the plaintiff to provide a trial plan to identify the issues likely to be presented at trial and how they are susceptible of class-wide proof. Plaintiffs’ counsel should be sure to meet this burden. If they do not, or if new evidence arises showing that individualized issues predominate or the case is otherwise improper for class treatment, the defendant can move to decertify the class. Any such motion should not rehash arguments already rejected at the class certification stage and should instead focus on post-certification events.

Both parties should always consider filing a motion to bifurcate pursuant to Federal Rule of Civil Procedure 42(b). Bifurcation can be particularly useful where resolution of a dispositive issue early on at trial, e.g., plaintiff’s standing, will render it unnecessary to proceed to more complicated phases of the case or force a defendant to come to the settlement table. Bifurcation can also be used to manage individualized issues or to separate liability from damages.

While most class actions do not proceed past the court’s class certification ruling, defendants facing a certified class may gain settlement leverage or even force a decertification through targeted motion practice. Plaintiffs’ counsel, on the other hand, can use post-certification practice to continue to place pressure on the defendant to help lead to settlement.