Can Class Certification Be "Preemptively" Denied?
A recent decision in Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, (9th Cir. 2009) provides defendants an important tool in the battle for class certification; the ability to set the timeline in class cases and preemptively move to deny class certification. The general scheme in class action lawsuits is well-known: plaintiffs move for class certification, and in doing so, have the right to put the class certification issue before the court. Defendants, in turn, then oppose. The Ninth Circuit in Vinole turned this general practice upside down by deeming a preemptive motion to deny certification proper under Federal Rule of Civil Procedure 23.
Rule 23(c)(1)(A) discusses the time limitations for a court’s determination of class certification. Rule 23 specifically states, “Time to Issue: At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” The Ninth Circuit held that the literal language of Rule 23 does not preclude defendants from seeking resolution of the class certification issue early in the case, and before plaintiffs have the opportunity to confront the issue. In Vinole, the motion to deny class certification was brought ten months after the filing of the lawsuit.
Plaintiffs, in opposing defendant’s tactics, attempted to argue that the preemptive motion to deny class certification was not only per se improper because it preceded the motion for class certification, but also because it was filed prior to discovery and pretrial motion cutoff dates. The court of appeals rejected plaintiffs argument, reasoning that plaintiffs had adequate time to conduct class related discovery and that the district court did not abuse its discretion by considering the issue of certification before the pretrial motion deadline.
Although the court deemed defendant’s preemptive motion to deny class certification proper in Vinole, there are undoubtedly times when such motions should be denied. For example, and as the Ninth Circuit discusses, had plaintiffs shown the need for additional discovery, defendant’s motion would have been denied as premature. Plaintiffs should not make the mistake of relying on a “per se improper” argument as plaintiffs did in Vinole, and should instead be prepared to make a showing of why additional time is needed when confronting a motion to deny class certification.
