By Jeffrey M. Schieber, of Taft Stettinius & Hollister LLP
Class certification decisions often require inquiry into the legal and factual merits of the plaintiff’s underlying claims. This reality, coupled with the proportionality principle embedded in the Federal Rules of Civil Procedure, means that defendants frequently face a long and expensive discovery path before presenting arguments against certification, even where those arguments are ultimately successful. A recent decision from the Northern District of Illinois serves as a reminder that in select cases, defendants have an earlier exit option from the class action framework.
The 16 named plaintiffs in Jones, et al. v. BRG Sports, Inc., allege that BRG Sports—the maker of Riddell football helmets—manufactured defectively designed helmets, was negligent with respect to the design of the helmets and failed to warn users about the helmets’ shortcomings. The plaintiffs, all of whom played high school or college football, claim to suffer from a variety of neurological conditions as a result of head injuries sustained while wearing the allegedly defective Riddell helmets. The plaintiffs sought to represent 18 classes, each consisting of all individuals who, between 1975 and present, wore Riddell helmets while participating in high school or college football in one of the 18 states where a named plaintiff played. BRG Sports answered the first amended complaint and immediately moved to strike the class allegations. In an Aug. 1, 2019 decision, Judge Matthew Kennelly granted the motion. See No. 18 C 7250, 2019 WL 3554374 (N.D. Ill. Aug. 1, 2019).
The decision is significant because it provides an overview of an underused tool in class action defendants’ kit: the motion to strike class allegations. As the decision explains, on one end of the spectrum, courts have approved of motions to strike “where a complaint is so facially lacking that no amount of discovery or time could provide support for class status for the claims pleaded.” On the other, courts have “rejected the use of the motion to strike” because class certification decisions are often enmeshed with the legal and factual merits of the underlying claims. Other courts “have taken a middle path,” considering motions to strike on the merits while recognizing that such motions are generally disfavored and that discovery is often needed to determine whether class certification is appropriate.
The court adopted this approach, opting to “consider the motion to strike on its merits bearing in mind that plaintiffs have not yet been allowed to conduct any discovery.” Having decided to consider the motion, the decision turns to the appropriate standard. With respect to the burden of persuasion, “courts have come to inconsistent conclusions.” The issue was immaterial, however, because the court would reach the same conclusion no matter which party bore the burden. As to the scope of analysis, some courts conclude that “the proper approach approximately mirrors that of a motion to dismiss” while others opt to consider matters outside the pleadings. The court opted for the first approach, explaining that “the motion to strike analysis should—at least where the motion is filed at this early a stage of the litigation—be limited to the face of the pleadings … as would be appropriate for an analogous motion to dismiss under Rule 12(b)(6).”
With this analytical framework established, the decision hones in on the arguments presented. Understandably, BRG Sports argued that individualized issues—including the type of helmet worn by each class member (and the accompanying warnings), the nature of each class members’ injury and the timing of each injury—predominated over any common questions. The plaintiffs countered that the case revolved around BRG Sports’ allegedly “dysfunctional design process and the resulting defective products.”
The court sided with BRG Sports, concluding that “the individualized inquiries that pervade this case utterly destroy the plaintiffs’ ability to satisfy Rule 23(b)(3).” Questions of injury and causation were “bound to be tremendously complex” and individualized and “lie inextricably at the heart of the plaintiffs’ claims.” Critically, “discovery promises no hope of a remedy to this infirmity, nor could the class definitions themselves be narrowed sufficiently to address … the complex, ubiquitous individualized questions of harm and causation that pervade this case.”¹ Accordingly, “the motion to strike must here be granted” because the class allegations, even “taken as true, are unfit for resolution using the class action device due to the individualized questions of law and fact that will invariably predominate over common questions.”
The decision turns next to the plaintiffs’ fallback request for certification of issue-specific classes—such as the nature and extent of BRG Sports’ duty to design helmets to prevent or reduce concussions, whether any of the helmets designed during the class period were adequate to protect against this risk and general causation—pursuant to Rule 23(c)(4). Although “the Seventh Circuit has not yet addressed how Rule 23(b)(3)’s predominance requirement ought to be squared with Rule 23(c)(4),” it “has specifically condemned the sort of mass tort class action workaround the plaintiffs now attempt.” Severing “purportedly common issues of duty and breach of duty from more individualized questions of causation and damages … raise[s] numerous practical problems and even violate[s] litigants’ Seventh Amendment rights because later juries would necessarily have to reassess duty and breach when assessing issues including comparative negligence and proximate causation.” Consequently—and like the proposed Rule 23(b)(3) class—“no amount of discovery could save” the proposed Rule 23(c)(4) class and “the motion to strike is therefore appropriate.”
While the decision is careful to clarify that it should not be interpreted as announcing or endorsing a bright-line rule that class actions are always inappropriate in mass torts or other cases involving personal injuries, Jones merits consideration at the early stages of any class action. If class allegations are facially and fundamentally incompatible with Rule 23’s requirements, a persuasive motion to strike the class allegations can drastically narrow the scope of the claims—and the potential liability—as early as the pleadings stage. Given these potential benefits, class action defendants should make a habit of weighing the pros (just noted) and cons (providing plaintiffs’ with both momentum and the judge’s roadmap to certification) of bringing an early motion to strike class allegations. As Jones demonstrates, where the case is particularly ill-suited for the Rule 23 framework, the pros will likely outweigh the cons.