Ninth Circuit Approves Preemptive Denial of Class Certification
December 2009

In most cases, a class action plaintiff tees up the issue of class certification by filing a motion with the court. May a defendant raise this issue first by filing its own motion to deny class certification?

In Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935 (9th Cir. 2009), the Ninth Circuit ruled that class action defendants may raise the issue of class certification “preemptively”— that is, before a plaintiff moves for class certification.

In Vinole, the defendants filed a motion to deny certification before the discovery cut-off and before pretrial motions were due. In response, the plaintiffs argued that “preemptive” motions to deny certification are always procedurally improper. They also claimed that it would be unfair for the court to rule on certification before the close of discovery because they were not able to present the issue to the court based on a full record. Believing that they were entitled to raise the issue of certification themselves, the plaintiffs did not respond fully to defendants’ arguments. Instead, they filed declarations with the court that “previewed” the evidence that they planned to use to support their own certification motion.

The court rejected the plaintiffs’ argument that the defendants’ motion was procedurally improper, ruling instead that no rule prevented a defendant from filing a preemptive motion to deny certification. It also ruled that the plaintiffs had plenty of time (some eight months) to conduct discovery before the certification issue was resolved, even though discovery had not yet concluded. The court then granted the defendant’s motion and denied certification.

On appeal, the Ninth Circuit Court of Appeals affirmed the district court’s ruling, emphasizing that class action plaintiffs do not have “complete control of the timing” of the district court’s certification decision. The Ninth Circuit also rejected the plaintiffs’ argument that defendants’ motion was filed prematurely, ruling that plaintiffs had not shown that they were prejudiced by the timing of the motion.

How early may a defendant move for denial of class certification? Ordinarily, courts will permit the parties to conduct discovery on the issue of certification. Under the right circumstances, however, a defendant may successfully obtain an order denying certification early in the case. Indeed, concluding that plaintiffs could not meet the certification requirement of Rule 23 as a matter of law, a district court recently granted a defendant’s motion for denial of class certification before any discovery had taken place. Picus v. Wal-Mart Stores, Inc., 256 F.R.D. 651 (D. Nev. 2009).

In sum, it is now clear that Ninth Circuit class action defendants need not wait for plaintiffs to move for certification. By filing preemptive motions for denial of certification, defendants may gain a strategic advantage by framing the certification issues on their own terms and by choosing when this key issue is presented to the court.

This Client Alert has been prepared by Lewis and Roca LLP for informational purposes only and is not legal advice. Readers should seek professional legal advice on matters involving these issues.

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