Growing up a Yankee fan, I hated Wade Boggs, the third baseman for the Boston Red Sox.  (Never mind for the moment that Boggs later played for the Yankees.)  Boggs controlled the tone of the game because he controlled the plate.  Pitchers knew that he wouldn’t swing at anything outside of the strike zone.  And umpires knew it, too.  So when Boggs stepped up, the narrative had already been set.

Some recent class action work led me to think about Wade Boggs.  Defendants in employment class actions (arising under both discrimination and wage and hour statutes) should follow his lead.  As in baseball, success in class action litigation depends on setting an early tone and establishing a narrative.

Traditionally, class action plaintiffs set the narrative with defendants doing little to break it.  Thus, a defendant’s first opportunity to re-write a class narrative arose only in response to a motion for class certification.  And that opportunity followed months, if not years, of costly motion practice and discovery.

Wade Boggs wouldn’t play that way.  Neither should you.  Defendants can take hold of the class narrative at an earlier point in the case by filing a pre-discovery motion to strike class allegations from a complaint.

Federal Rule of Civil Procedure 12(f) permits motions to strike matter that is either “immaterial” or “impertinent.”  Accordingly, and in conjunction with Rule 23, a district court may consider a motion to strike class allegations at any “early practicable time after a person sues.”  Fed. R. Civ. P. 23(c)(1)(A); see Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011).  Simply stated, Rules 12(f) and 23 allow the court to ensure that neither it nor the parties waste resources resolving clearly spurious class disputes.

Boggs didn’t get to the Hall of Fame by wishing, but by consistent judgment.  That’s precisely what’s needed here.  A motion to strike is not an automatic response to every class action but a considered judgment that is proper only where “the complaint itself demonstrates that the requirements for maintaining a class action cannot be met,” no matter what or how much discovery is taken.  Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72, 93 n.30 (3d Cir. 2011); see also Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1245-46 (C.D. Cal. 2011) (noting that it is rare to strike class allegations before discovery, and collecting cases).

So when does it make sense to move to strike class allegations?

  • Where class counsel represents two or more classes that bring claims against the same defendant.  When more than one class raises claims against a defendant with limited assets, it creates a potential conflict: the same dollar can’t be spent twice.  Thus, absent evidence that a defendant has sufficient assets to satisfy every class claim against it, a defendant can move to strike class allegations by pointing to class counsel’s representation of more than one of the classes.  See Ortiz v. Fibreboard Corp., 527 U.S. 815, 856 (1999); Lou v. Ma Labs, Inc., No. 12-5409 2014 WL 68605, at *2 (N.D. Cal. Jan. 8, 2014) (“When there are different plaintiffs in different actions proceeding at the same time with the same claims, same counsel, and same defendants, the risk of counsel compromising one class for another is intensified.”).
  • When the named plaintiff opted out in an earlier, related class action.  Of course, plaintiffs always have the right to opt out of a class and separately litigate their claims.  But plaintiffs cannot opt out, only to act as named plaintiffs in a subsequent and related class action.  See Johnson v. Nextel Commc’ns., Inc., 293 F.R.D. 660, 667-68 (S.D.N.Y. 2013).
  • Where it appears that named plaintiffs cannot prove ascertainability, numerosity, commonality, or predominance.  Courts generally disfavor motions to strike class allegations premised on an alleged inability to satisfy these Rule 23 elements.  And even where such motions are granted, they are typically granted with leave to amend.  See, e.g., Lyons v. Bank of Am., NA, No. 11-1232, 2011 WL 6303390, at *7 (N.D. Cal. Dec. 16, 2011).  But filing a motion to strike such allegations serves two important purposes: it draws the Court’s attention to class issues at an early stage of the proceedings and may help to narrow later argument and discovery.
  • When the parties need to frame settlement talks.  Experienced counsel understand that a pending motion to dismiss can set the stage for settlement by highlighting deficiencies in a plaintiff’s theory of the case and grounding damages expectations.  A pre-discovery motion to strike class allegations can serve the same purposes.  By highlighting the deficiencies in the named plaintiffs’ class allegations, a defendant can frame settlement negotiations by stressing the likelihood that the Court will not certify the class.

Ultimately, we don’t know what Wade Boggs would do if faced with any of these scenarios.  (Come to think of it, he’s no litigator; he’s not a lawyer; and he hasn’t played in in a major league baseball game since 1999.  Why are we still talking about him?  Because he overcame equinophobia or drank 107 beers in one day?)  But the lessons here are well taken, insofar as Boggs set the narrative for his career.

Or put another way, putative class action defendants would do well to ask themselves: what would Wade Boggs do?