Duane Morris Class Action Review - 2023 - Report - Page 40
are there grounds to do so under the Class Action Fairness Act of 2005)? Is it better
to have a federal judge who has the time and expertise to fully review the briefs and
arguments and likely will apply a more rigorous evidentiary standard to expert
testimony and class certification requirements? However, will removing the case
cause other plaintiff’s counsel to track the litigation and lead to more sophisticated
counsel becoming involved or more “tag-along” class action filings? Will removing
the case make settlement more difficult and potentially affect the structure of the
settlement as well as its costs and the exposure in the class action? How will
standing issues play out in each forum, and is standing a viable defense to gut the
basis of the class theories? Can jurisdictional defenses fracture the class action by
invoking Bristol-Myers? Does the company have an arbitration agreement with
employees, consumers, or third-parties that would support a motion to compel
arbitration of the claims in the lawsuit on an individual, bilateral basis? Is the
potential of a motion to transfer the case to an MDL after removal good or bad for
the ultimate defense and handling of the litigation? What are the steps for a full and
complete early case assessment, and is the company’s relevant electronicallystored information (ESI) available, assessable, and in a format that can be easily
and quickly analyzed? Are there ways to resolve the individual complaint, either
before filing responsive pleadings or by way of negotiation with plaintiffs’ counsel?
Could early concessions or a voluntary change to a challenged practice moot the
litigation, or lead to an argument by plaintiff’s counsel that they are entitled to
attorneys’ fees if corporate changes are made?
Once the parties are at issue in the litigation, another series of strategic decisions
need to be confronted. Should the company request a stay of discovery while the
court is considering a motion to dismiss? Should the defendant agree to broader
discovery in the hope of demonstrating the presence of individualized issues to set
up its class certification defenses? How broadly should discovery be drafted and
what type of agreement on ESI is appropriate? Can the defendant make
predominance arguments regarding varying facts without allowing broad discovery
on those facts? Is bifurcation of discovery between merits issues and class issues
still a viable option after Rule 23 case law has made clear that merits issues can
overlap with the elements of class certification? Are communications allowed with
class members before and/or after certification and on what terms? Is the list of
class members discoverable? Is discovery allowed from absent class members and,
if so, in what forms? Can and should a corporate defendant move for summary
judgment before class certification (as to the named plaintiffs’ claims individually or
as to all class claims)? Are there advantages even if the motion will not win the case
(for instance, narrowing the case, causing the plaintiff to respond in an
individualized way, etc.)?
As to the future opposition to the plaintiffs’ motion for class certification, can the
class definition be attacked because it includes uninjured class members?
Furthermore, it is rare that a motion for class certification is filed without an
accompanying expert witness report. Likewise, virtually every opposition brief uses
expert testimony. When should a defense expert be retained, on what subjects, and
how should they plan their support of the defense efforts to block class certification?
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© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023