The decision of whether to grant certification is a pivotal point of any putative class action. Win or lose, class actions that survive the pleadings stage threaten businesses with enormous defense costs, especially costs associated with class-wide discovery. A motion to strike class allegations is a powerful tool to dispose of the case and avoid such costs when it is clear from the pleadings that a class cannot be certified. Below is an overview of the legal bases for motions to strike and how various jurisdictions have addressed these motions.
Legal Bases and Standards
The Federal Rules of Civil Procedure provide three legal bases for motions to strike: Rule 12(b)(6), Rule 12(f), and a combination of Rule 23 and Rule 12(f). Rule 12(b)(6) – permitting a motion to dismiss for failure to state a claim – is rarely used for purposes of striking class action allegations. Therefore, we shall focus on the grounds under Rule 12(f) and Rule 23.
Federal Rule 12(f) states that a court may strike “any redundant, immaterial, impertinent, or scandalous matter” from a pleading, acting either on its own or on a motion advanced by a party. Although Rule 12(f) does not expressly contemplate a motion to strike class allegations, it can greatly reduce a defendant’s exposure by limiting it to only the class representative’s claims. It should be noted that Rule 12(f) motions must be filed “either before responding to a pleading, or if a response is not allowed, within 21 days after being served with the pleading.” Similarly, a defendant cannot make a Rule 12(f) motion after it has already filed a previous motion under Rule 12.
Rule 23 is the most commonly cited basis for a pre-discovery strike motion. Courts often read Rule 23 and Rule 12(f) together to conclude that the Federal Rules of Civil Procedure authorize early motions to strike class allegations. Rule 23(a) lays out the requirements for a plaintiff to certify a class: numerosity, adequacy, typicality, and commonality. Rule 23(d)(1)(D) provides, in relevant part, that courts conducting putative class actions may issue orders that “require that the pleadings be amended to eliminate” class allegations. Accordingly, Rule 23(d)(1)(D) expressly authorizes courts to strike class allegations, unlike Rule 12(f), which does not mention class allegations. Further, unlike Rule 12(f), there is no time limit for motions brought under Rule 23(d)(1)(D).
Jurisdictional Analysis
Most courts will entertain early motions to eliminate class actions, whether styled as a “motion to strike class allegations” or as a “motion to deny certification.” Last year, the Fifth Circuit joined ranks with the Sixth and Eighth Circuits by endorsing pre-discovery motions to strike class allegations. In Elson v. Black, 56 F.4th 1002 (5th Cir. 2023), the court affirmed the district court’s order striking plaintiffs’ class allegations in their entirety.
The Elson ruling is likely to spawn increased motion practice regarding class certification early on in putative class actions in the Fifth Circuit, and the decision could potentially be a harbinger of similar practices and rulings in other circuits. Motions to strike class allegations are a relatively new device, and the legal standards will likely continue to develop.
Overall, there are many reasons to consider filing a pre-discovery motion to strike class allegations. A successful motion essentially disposes of the case and ends the class certification fight before it begins. Even a partially successful motion can greatly reduce the costs of discovery by limiting the scope of claims. Accordingly, when a defendant is served with a class action complaint, it should review it closely, assess whether any Rule 23 factors clearly cannot be satisfied, and consider whether the class allegations can be struck at the pleadings stage
