The Low Spark of Motions to Strike Class Allegations - Law.com
Defense counsel and certain courts have employed a new tactic to thwart class actions at the pleading stage – the motion to strike class allegations. But does this new tactic have any basis in the Federal Rules of Civil Procedure , or is it a fabricated conflation of procedures. A motion to strike class allegations at the pleading stage finds little if any textual basis in the Federal Rules. Rule 12(f), which permits a “motion to strike” for “redundant,” “impertinent” or “scandalous” matters, says nothing about purportedly inadequate class allegations. On this score, the Third Circuit has held expressly that a Rule 12(f) motion to strike generally should not be granted. Recognizing this truism, defense counsel often do not rely on Rule 12(f), and instead contend that certain provisions of Rule 23 – when “read together” – nonetheless allow courts to strike class allegations at the pleading stage. But the two provisions usually cited – Rule 23(c)(1)(A) and Rule 23(d)(1)(D) – do not permit or even contemplate such a motion. In context, both provisions actually contradict the argument that class allegations may be stricken at the pleading stage. Before 2004, Rule 23(c)(1)(A) required that the determination whether to certify a class be made “as soon as practicable after commencement of an action. ” Effective December 1, 2003, this language was amended to require instead that “the court must – at an early practicable time – determine by order to certify the action as a class action. Source: www.law.com
