Manatt Partner Discusses Class Certifications With Law360

“Defense Attorneys Take the Offense in Class Certification Battles”
Law360

October 11, 2010 — Manatt partner Brad Seiling, co-chair of the firm’s Class Action Practice Group, was quoted in a Law360 article on what the publication identifies as a trend - defendants moving to defeat class certification before plaintiffs bring a motion for class status to the court.  Law360 says that the preemptive tactic, though counterintuitive, can be an effective way to save clients time and money.

Going on the offense, the article says, “can also force lagging plaintiffs - particularly those drawing out the case to force a settlement - to act.”

“A way to cut off that process is to call the question and call the question early,” Seiling said, adding that both sides will get a quick determination of what’s at stake in the case.

The move, however, does not come without risk, according to Law360.  Judges are often reluctant to address certification issues on motions to strike or other motions on the pleadings.  If they are not ready to rule on class issues, a judge may slap down motions to deny certification no matter how solid the defense’s argument.  Moving too soon, the article says, can also hand plaintiffs an easy rebuttal: “We need more time for discovery.”

If the motion backfires and the defendants lose, they have a court on record holding that the case should proceed as a class action, Seiling told Law360.

Depending on the specifics of the case, however, the move can still be worthwhile.  The article offers that, even if defendants lose the motion, they can “sensitize” a court to potential problems with certification.  They may even restrict the potential class size at an early point in the litigation.