Conventional wisdom says that a defendant should move to dismiss a class action complaint if there are grounds to do so. Motions to dismiss have many potential strategic benefits beyond the mere possibility of an early victory, including allowing the defendant to avoid expensive discovery pending resolution of key threshold legal issues, providing an early opportunity to educate the judge about the weaknesses of the plaintiffs’ case, and pinning down the plaintiff’s legal theories at an early stage. However, it is always important to consider that there are alternative approaches, including:
- Moving for summary judgment instead of moving to dismiss on the pleadings;
- Moving to strike the class allegations or for an early ruling on class certification, leaving for a later date the matter of the plaintiffs’ individual claim; or
- Simply filing an answer and waiting until the record is more well-developed before raising a potentially dispositive legal argument, either in a later motion for summary judgment or a motion for judgment on the pleadings.
Without question, every defendant has an incentive to obtain resolution of a class action in the quickest, most efficient way possible. However, filing a motion to dismiss is not the most efficient means of resolution in every case. If the motion is unsuccessful, the trial court can develop preconceived notions about the strength of the plaintiff’s claims if they are attacked too early based on an undeveloped record. This is a risk especially where the trial judge has a reputation of denying motions to dismiss without serious analysis. But beyond the possibility that the motion will be denied, there is a potential downside to winning an early motion to dismiss on the pleadings. Having to defend a successful motion to dismiss on appeal can be an unnecessary expense in comparison to the available alternatives, and there is a risk of an unfavorable appellate ruling that can cause lasting harm on remand. Another consideration is that winning a dispositive motion prior to class certification will only bind the named plaintiff and doesn’t bind other class members (although in practice, defendants are usually willing to take the risk of future lawsuits if it means getting the current one dismissed).
There are two common scenarios in which defendants are successful in obtaining early dismissal of class action claims. The first is where the plaintiff’s underlying legal theory is a novel one. One recent example is a putative class action filed against New York Law School alleging that the school misrepresented its employment statistics, causing students to attend law school with the hopes of significant employment prospects, only to find themselves with limited job options upon graduation. A state court recently dismissed the case in a lengthy opinion that relies heavily on factual matters of which the court took judicial notice (link courtesy of www.abovethelaw.com). Another example is a putative class action in California challenging McDonald’s alleged practice of using toys in Happy Meals to entice children to buy unhealthy food. That case was dismissed last week, in a written decision that does not contain any analysis of the court’s reasons for sustaining the defendant’s demurrer (presumably, the court articulated the reasons orally).
There is no particular reason to believe that either of these decisions will be reversed on appeal, but the risk of reversal is present in almost any decision granting a motion to dismiss due to the individual plaintiff’s failure to state a claim. Even if the plaintiff’s legal theory is novel or borderline frivolous, there is always a danger that an appellate panel, left to analyze the case from the perspective of pure application of the law based on the facts viewed in the light most favorable to the plaintiff, will find that the plaintiff has stated a claim. This creates the related risk that due to the undeveloped state of the record, the appellate court will make generalized statements about the viability of the cause of action that will make it more difficult to obtain summary judgment or a denial of class certification later. This risk is most evident where the named plaintiff has alleged facts that, while implausible, would state an individual claim if accepted as true, but where the facts alleged are so individualized to the named plaintiff that they wouldn’t possibly support a common claim on a class-wide basis. In that situation, it is important to at least consider the alternative approaches of attacking class certification or filing a motion for summary judgment on a more well-developed record.
A second common scenario where defendant can obtain early dismissal of a class action is where there is a possible complete legal defense to the plaintiff’s class claims, but the defense is based on an unsettled question of law. In that situation, a win in the trial court may only guaranty years of litigation in the appellate courts rather than putting an end to the dispute. There may be strategic advantages to a defendant testing the legal theory early in the case anyway, but it is always important to consider other approaches. One situation in which the defendant may be better off waiting to raise a potentially dispositive legal defense is where the facts are likely to show that the plaintiff’s claim is baseless as a matter of fact, so that an early motion for summary judgment may be a more efficient alternative.
Of course, there is no set formula for deciding whether to file an early motion to dismiss. Instead, the decision requires an analysis of a variety of different variables that will depend on the specific case. A non-exhaustive list of the factors includes:
- the strength of the legal arguments and the extent to which the law is settled;
- the style and predilections of the trial court judge;
- the extent to which discovery can be limited or stayed if a motion to dismiss is pending;
- the likelihood of reversal given the composition and leanings of the applicable appellate court;
- the existence of alternative defenses, such as those based on facts outside the pleadings;
- the likelihood that the case will survive class certification; and
- the perceived willingness of the named plaintiffs and their attorneys to explore settlement or to abandon the case following an adverse trial court ruling;
- the effect of long-term uncertainty over a challenge to a particular business practice as the case awaits resolution in the appellate courts; and
- the cost of defending the judgment on appeal in comparison to the amount at stake in the litigation.
There are many situations in which the cost and potential long-term risks of seeking an early dismissal are outweighed by the benefits of a quick win in the trial court. But, while filing an early motion to dismiss is always a strategy to consider, it is important to at least consider alternatives that may be only slightly more costly in the short term and may provide a better foundation for a win in the trial court to remain a win forever.