Andrew Trask, McGuireWoods LLP
Garrett Wotkyns, Schneider Wallace
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Trask is not British
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We know each other well
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We are University of Chicago grads
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There will be no mention of Mazza
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All of these cases are in the written materials
◦ But Wotkyns is half-Czech.
◦ So there has been collusion.
◦ So we are deeply nerdy.
◦ And pretty cynical.
◦ And we say “incentive” a lot.
◦ Except this one.
◦ But the slides will go up on www.classactioncountermeasures.com today.
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Trans-substantive – one size fits all
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Rule 23(a)
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Rule 23(b)
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(1)
(2)
(3)
(4)
numerosity – how big is this case really?
commonality – will we get a single answer?
typicality – is the plaintiff a special snowflake?
adequacy – who’s the plaintiff working for?
◦ (1) – zero-sum games
◦ (2) – declaratory or injunctive relief
◦ (3) – damages
 Predominance – Just how many special snowflakes are there?
 Superiority – Can’t we hand this off to someone else?
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Class certified =
◦ Heavy incentive for defendant to settle
◦ Scope of case finally defined
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Class denied =
◦ Individual lawsuit, resulting in
 Smallish settlement or
 Voluntary dismissal
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Is to make the class proposal look like this.
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(Sondra Locke optional.)
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Class proposal
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Early challenges
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Class certification
motion
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Motion to Deny Certification
Early Summary Judgment
Discovery Battle
Motion to Strike
Motion to Dismiss
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Procedural challenges (or direct challenges)
◦ Look to win the game outright
 Motion to Deny
 Motion to Strike
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Substantive challenges (or indirect
challenges)
◦ Look to rearrange the chessboard
 Summary Judgment
 Discovery battles
 Motion to Dismiss
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Defense faces incentive to challenge early
◦ Dukes has frontloaded discovery costs
◦ In-house counsel have been asked to do more with less
 “In 2012, corporate legal departments expect to handle
slightly more of them—on average, 5.4 matters per
company, up from 4.4 in 2011. At the same time, they plan
to decrease their per suit costs, which average $776,500,
by 17 percent this year.”
(Carlton Fields survey)
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Vinole v. Countrwide Home Loans, Inc., 571 F.3d
935, 939 (9th Cir. 2009) (“Rule 23 does not
preclude a defendant from bringing a ‘preemptive’
motion to deny certification.”).
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Defense Advantage:
◦ Allows defendant to frame debate.
◦ Allows defendant reply brief.
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Defense Risk:
◦ Tips hand to plaintiffs on arguments.
◦ If court denies on procedural grounds, 1 motion for the
price of 2.
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Focused on plaintiff-specific issues.
◦ Wright v. Schock, 742 F.2d 541, 543-44 (9th Cir. 1984)
(court properly ruled on summary judgment before
certification because (1) resolution protected parties from
needless and costly litigation and (2) parties did not
suffer prejudice by early determination on merits).

“These are not the droids you are looking
for.”
◦ Named plaintiff not injured/not member of class.
◦ Early rehearsal of adequacy/typicality.
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“Please deny this motion.”
◦ Attack on causation.
 (e.g., plaintiff did not rely on representation)
◦ Early attack on commonality/predominance.
◦ Defense Advantage:
 Win on merits, no case.
 Lose on contested material facts, sets up variations for class
certification.
◦ Defense Risk:
 Adverse decision on merits – legal grounds.

Heerwagen v. Clear Channel Communications, 435
F.3d 219 (2d Cir. 2006).
◦ Limitation of discovery OK because “plaintiff failed to make any
showing, however preliminarily, that she could satisfy the
predominance requirement of Rule 23(b)(3) or that she might
be able to do so with additional discovery.” (234)
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Mantolete v. Bolger, 767 F. 2d 1416 (9th Cir. 1985).
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So defense can use discovery objections to force
debate on scope of class.
◦ “[T]he plaintiff bears the burden of advancing a prima facie
showing that the class action requirements of Fed. R. Civ. P.
23 are satisfied or that discovery is likely to produce
substantiation of the class allegations.” (1424)
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Defense Advantage:
◦ Possible to limit discovery (& limit cost)
◦ Possible to limit scope of class
◦ Can force early debate on dubious classes
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Defense Risk:
◦ Courts don’t like discovery disputes.
◦ “Rigorous analysis” implies plaintiffs need evidence.

John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443,
445 (5th Cir. 2007) (“Where it is facially apparent
from the pleadings that there is no ascertainable
class, a district court may dismiss the class
allegation on the pleadings.”).
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Variations in state law - Pilgrim v. Universal Health Card,
LLC, 660 F.3d 943, 946 (6th Cir. 2011).
Incurable problems with class definition - John v. Nat’l
Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007).
Better alternatives out there – Kamm v. Cal. City Dev.
Co., 509 F.2d 205 (9th Cir. 1975) (previous AG
settlement justified motion to strike).
Individual causation/reliance - Schilling v. Kenton
County, 2011 U.S. Dist. LEXIS 8050 (E.D. Ky. Jan. 27,
2011) ("to resolve the legal issue presented the Court must
delve into the specific facts of each inmate's incarceration
and the medical needs relative to that inmate.").

Defense Advantage:
◦ Early defeat of certification
◦ Defendant gets to frame issues
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Defense Risk:
◦ Could be denied as premature
 See, e.g., Eliason v. Gentek Building Prods., Inc., 2011
U.S. Dist. LEXIS 94032, *7 (N.D. Ohio Aug. 23, 2011)
(“While raising possibly valid concerns, Defendants'
arguments on class certification are premature.”)
◦ Tips plaintiffs off to arguments
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Specific motions have specific Rule 23 criteria
they help
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Standing – Adequacy
Preemption - Superiority
Sufficiency of allegations – Commonality
Plaintiff-specific problems – Typicality/commonality
Availability of injunctive relief – Rule 23(b)(2)
Availability of attorneys’ fees – Plaintiffs’ reason for being
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Defense Advantage:
◦ Early resolution of case
◦ Educate judge on individualized issues
◦ Shape class cert briefing
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Defense Risk:
◦ Early determination that issues are common
 In re Bridgestone/Firestone, Inc. Tires Prods. Liab.
Litig., 205 F.R.D. 503 (S.D. Ind. 2001).
 (subsequent certification overruled)