The U.S. District Court for the Central District of California recently issued an interesting decision (pdf) denying class certification in 15 consolidated consumer class actions against the maker of 5-hour ENERGY drinks.
From a practitioner’s standpoint, one of my five least-favorite recent developments in federal class-action practice is the explosion in the number of premature motions for class certification that would-be class representatives file.
I understand the motivation behind these motions—often filed along with the initial complaint. Of course, they are not seriously intended to induce a ruling on class certification; to the contrary, they expressly request that the issue be tabled until the completion of discovery. The real reason that plaintiffs’ counsel file these motions is that they want to preclude the defendant from mooting the putative class action by making an offer of judgment under Rule 68 to the named plaintiff for the full amount of his or her claims. The idea is that by having moved for class certification—even if only nominally—the plaintiff has done enough to start the ball rolling towards certification to allow the class action to continue even if the named plaintiff’s claims are extinguished. And while many creative ideas are dreamed up in the offices of plaintiffs’ lawyers, this is not one of them: This particular tactic stems from Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), in which the Seventh Circuit held that a putative class action was moot after a Rule 68 offer, but suggested the possibility that mootness could be avoided by an early motion for class certification.
There can be no debate that these motions are annoying. They represent pure busywork for everyone involved: the plaintiff has to draft them, even if that amounts simply to parroting the requirements of Rule 23; the defendant often has to file a response or enter a stipulation to postpone further briefing; and the court has to juggle its calendar to account for these Potemkin motions. The paperwork alone results in a lot of dead trees (or their virtual equivalent). And these motions don’t save any time or effort in the fraction of these cases that actually reach the class-certification stage; the briefing inevitably must be redone following discovery. Moreover, these motions risk cluttering up judges’ pending-motions reports.
Unsurprisingly, there has been some judicial backlash against these motions. The latest example—which is nicely understated—is from Judge Stefan R. Underhill of the District of Connecticut, who described one such motion in a TCPA class action, Physicians Healthsource Inc. v. Purdue Pharma LP, No. 3:12-cv-1208 (D. Conn. Sept. 8, 2013), as “hasty” and “under-developed.”
In what I imagine will be an oft-copied move, rather than acceding to the plaintiff’s request to defer consideration of the motion until after discovery, Judge Underhill denied the motion without prejudice. He explained that even if a “place-holder” motion for class certification could prevent an offer of judgment from mooting a putative class action, “it does not follow that an initial, under-developed motion—like the one at bar—must linger on the docket while the court awaits the filing of a later, fully-developed motion following discovery.” That is because an order denying certification is “inherently tentative” and can be “modif[ied] in light of subsequent developments in the litigation.”
In my view, plaintiffs are mistaken in believing that the filing of an underbaked motion for class certification can ever stave off a finding of mootness. In Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), the Supreme Court made clear that a class action survives the mooting of the named plaintiff’s claims only if the putative class already has “acquire[d] an independent legal status.” And in my view, that happens only if the class is actually certified (Sosna v. Iowa, 419 U. S. 393 (1975)), or would have been certified but for an erroneous denial of class certification (United States Parole Comm’n v. Geraghty, 445 U. S. 388 (1980)). Yet these premature motions (understandably) do not even seek a ruling on class certification; they ask that any such ruling be postponed until after discovery and re-briefing. These motions add nothing to the allegations in the complaint asserting the existence of a putative class and therefore can offer no greater protection against mootness.
One final note: In Physicians Healthsource, Judge Underhill made clear that one reason he thought that the plaintiff’s motion for class certification was pointless was because “the Second Circuit * * * has never adopted” the Seventh Circuit’s mootness rule from Damasco. It’s true that, unlike the Seventh Circuit, the Second Circuit has held that an unaccepted offer of judgment for full relief doesn’t automatically moot the named plaintiff’s claims. But Judge Underhill’s implication—that would-be class counsel has nothing to fear from an offer of judgment—is mistaken. In McCauley v. Trans Union LLC, 402 F.3d 340 (2d Cir. 2005), the Second Circuit merely explained that the “better resolution” of a case in which an offer of judgment for full relief has been extended is “entry of a default judgment against” the defendant along the terms of the offer. So the named plaintiff’s individual claims would be just as dead as they would be under the Seventh Circuit’s mootness rule.
The bigger issue—which we’ll leave for another day—is whether, after the Supreme Court’s decision in Genesis, a Rule 68 offer of full relief to a named plaintiff has the effect of mooting a putative class action. Stay tuned!