Defending a class action lawsuit poses great risk and uncertainty for a corporate defendant. A single plaintiff, whose claims may be worth only a pittance standing alone, can represent the claims of every corporate customer over a period of several years. If the court refuses to certify the class, the case properly may belong in small claims court. But an order certifying a class may transform that single claim into bet-the-company litigation. Unfortunately, it often takes months - and sometimes years - before the defendant learns the answer to a very fundamental question: Exactly how many claims are at issue in this lawsuit?
In addition to risk and uncertainty, defending a class action is costly. The 
defendant controls almost all of the information and evidence relevant to class certification. For that reason, discovery requests in class litigation tend to flow one way - from the plaintiff to the corporate defendant - and the time and cost burden falls disproportionately on the defendant. Class counsel typically seek to inundate a corporate defendant with burdensome discovery requests, voluminous document requests, invasive discovery of electronic records and countless depositions of corporate managers and employees. Class counsel's discovery typically serves two purposes: (1) Gathering the evidence necessary to support the class certification motion, and (2) increasing the pain and burden of litigation in an effort to bring the defendant to the bargaining table.Class counsel attempt to control the pace and costs of the litigation, deciding when to call the class certification question. But there is no rigid rule requiring class litigation to follow this path. Nothing requires a corporate defendant to simply hunker down and wait for the plaintiff to ask the court to certify a class. It is becoming more common for defendants to file early motions challenging treatment of a case as a class action. It is even possible to challenge class certification at the pleading stage by filing a preemptive motion to strike class allegations. And many courts are receptive to motions to strike or "decertify" the class. From the court's perspective, there is no reason to delay deciding an issue that impacts the scope of the litigation it must manage.
By moving to challenge class treatment, the defendant can turn a pressure point into an advantage. The defendant does control the information and evidence relevant to class certification. Class counsel can only obtain that information through formal discovery methods. Defense counsel can obtain the same information and then some by phone calls and emails directed to the relevant in-house experts. Rather than waiting for the plaintiff to serve onerous discovery, defense counsel can gather the facts necessary to defeat the class (indeed, regardless of whether the class certification battle is fought, defense counsel can and should do so early on).
Filing a motion to decertify or strike the class allows the defendant to frame the issues for the court and to present its business in the most favorable light. It also allows the defendant to deflect attention from issues or evidence that may argue in favor of class treatment.
There is an obvious downside to calling the class certification question early - you may not like the answer the court gives you. In that case, the strategy of taking the offensive will have hastened the very result you sought to avoid and almost certainly will embolden class counsel who will have the kind leverage they always seek to obtain a lucrative settlement.
There is also the risk that the court will allow the plaintiff to conduct additional discovery to respond to the motion. In that case, the plaintiff will be able to focus the additional discovery on the specific legal theories and evidence supporting your motion.
A preemptive strike on the class is not appropriate in every case. When the facts weigh heavily in favor of certification, you may want to avoid calling the certification question. But this new approach to class action litigation should be one of the options considered as it can allow the defendant to take control of a case and hasten a favorable result.
Manatt's Brad W. Seiling, a partner in Los Angeles, and Dean J. Zipser, a partner based in Orange County, together co-chair the firm's Class Actions practice group.
