Litigation

Ninth Circuit approves preemptive motion to deny class certification

By Dan Larsen

In a case of first impression, the Ninth Circuit ruled earlier this month in Vinole v. Countrywide Home Loans, Inc., CV-07-00127-DMS, that a defendant may file a preemptive motion to deny class certification before plaintiffs file a motion to certify a class.  While it is standard practice for the putative class representative to bring the issue of class certification before the court, nothing in FRCP 23 requires the defendant to wait for such a motion before asking the court to deny certification. 

In Vinole, the plaintiffs filed a class action complaint alleging that defendant misclassified a group of employees as ?exempt,? and, consequently, did not pay all overtime and related wages owed to them.  Before the pretrial motion deadline and discovery cutoff, and before plaintiffs filed a motion for class certification, defendant filed a motion to deny class certification on the ground that individual issues predominated over common issues.  See FRCP 23(b)(3).

Plaintiffs claimed that it was improper to file a preemptive motion to deny class certification at that stage in the litigation.  The district court rejected the contention and denied class certification. 

Plaintiffs then appealed to the Ninth Circuit, claiming the district court abused its discretion in considering the motion.  The appellate court examined Rule 23(c)(1)(A) concerning the timing of a class certification determination, and found that nothing there gives plaintiffs the privilege to move for class certification before the defendant moves to deny certification.  The court also distinguished cases in which a motion to deny class certification was found to be premature because plaintiffs lacked sufficient time to complete discovery.  Here the plaintiffs had conducted discovery for 10 months and advised the district court that no more discovery would occur before their filing of a motion for class certification. 

The Ninth Circuit ruled that a defendant?s preemptive motion to deny class certification may be filed before the discovery and pretrial motion deadlines absent a showing of procedural prejudice to the plaintiffs. 

The court also affirmed the district court?s denial of class certification on the grounds that individual issues concerning the time individual plaintiffs spend in or out of the office and how each plaintiff performed his or her job predominated over common issues.

Full post as published by Northwest Business Litigation Blog on July 22, 2009 (boomark / email).