Merits Discovery and Dispositive Motions before Class Certification

John Wentworth Phillips of Phillips Law Group PLLC Speaker 3a: 1
Merits Discovery and
Dispositive Motions
before Class
Certification
John W. Phillips
Phillips Law Group, PLLC
May 8, 2008
Class Certification should be
decided early
• Class Certification should be determined relatively early in the
process
• A. W.D. Wash. LR 23(f)(3): Motion should be filed “[w]ithin one
hundred eighty days after filing of a complaint in a class action,
unless otherwise ordered by the court or provided by statute . . .”
• B. Fed. R. Civ. P. 23(c)(1)(A): Motion should be decided “at an
early practicable time,” which is a revision of the prior language of
the rule, “as soon as practicable”
• C. CR 23(c)(1): Motion should be decided “as soon as
practicable”
• D. King County LR 23(b): Motion should be decided “within 90
days after all parties have either filed an answer or have been
ordered in default, unless the period is extended on motion for
good cause . . .”
• E. Manual for Complex Litigation, Fourth, § 21.133 at 253,
“an early resolution is generally desirable”
• F. But Courts don’t give any of the above too much weight.
Law Seminars International | Litigating Class Actions | 05/08/08 in Seattle, WA

John Wentworth Phillips of Phillips Law Group PLLC Speaker 3a: 2
Bifurcating Discovery
• What does limiting discovery to class certification
issues really mean? Discovery of the plaintiffs
regarding their representativeness and typicality,
and very little discovery of the defendants?
• Since a preliminary inquiry into the merits is
required why isn’t merits discovery available to
some degree?
• Given the emphasis on “rigorous analysis” at the
class certification stage and evaluation of the
elements and evidence that will need to be adduced
on the claim, is this distinction sensible?
• Yes, where the facts and law are undisputed.
• No, where the parties are going to fight about the
nature of proof on elements of the claims. Manual for
Complex Litigation, Fourth, § 21.14 at 255
Bifurcating Discovery
• With respect to increasing demands on plaintiffs to
prove-up class-wide damages at the class certification
stage, does bifurcation of class certification vs. merits
discovery make sense?
• Can defendants credibly seek to bifurcate discovery
(limiting discovery to “class certification” issues) and yet
at the same time seek summary judgment against the
name plaintiffs on the merits?
• For these reasons, plaintiffs, particularly if they have
dispositive motion plans of their own, generally don’t
think such bifurcation makes sense, but given the
generally early nature of class certification should limit
the scope of discovery so that it is not too expensive for
them or defendants before class certification.
Law Seminars International | Litigating Class Actions | 05/08/08 in Seattle, WA

John Wentworth Phillips of Phillips Law Group PLLC Speaker 3a: 3
Dispositive Motions before
Class Certification
• Judge Rothstein --Deal with dispositive issues
early that may obviate lengthier and more
expensive demands of class certification.
Combining dispositive motions and class
certification motions for simultaneous decision
may define the landscape for settlement.
• Twombly et al invite early attack by defendants
• There are more class actions in federal court
post-CAFA (docket management)
• Vague concerns about coercive effect of class
certification and plaintiffs’ lawyers serving
criminal sentences.
Dispositive Motions Before
Class Certification
• The above is not all bad for plaintiffs
• Does my case have legs?
• Do I have a dispositive motion to bring?
• Any bar to doing so? (No, one-way intervention is not a
problem)
• Some cases have power as declaratory judgments
decided on summary judgment irrespective of class
treatment
• Think through the ruling as it will work itself into class
certification considerations
• If the defendant brings an early dispositive motion and loses,
plaintiff may have a good framework for discussing common
issues on class certification.
• Can a defendant bring a summary judgment motion at the
same time it is resisting merits discovery?
• Is the problem the plaintiff or the case? Dismissal as to the
plaintiff does not bind a yet to be certified class.
Law Seminars International | Litigating Class Actions | 05/08/08 in Seattle, WA