A Lesson for Defendants from the BCBG Case: Start Early in Investigating Class Issues and Consider Whether You Should Affirmatively Challenge Class Certification

Earlier this month, the California Court of Appeal (4th App. Dist.) issued an opinion in which it affirmed a trial court’s determination that an action could not proceed on a class-wide basis. See In re BCBG Overtime Cases, ___ Cal. App. 4th ___ (June 13, 2008) (opinion here).

The holding itself is not particularly remarkable. The manner in which the class issues were presented to the court, however, is worthy of note. Specifically, the trial court determined the class issues pursuant to the defendant's motion, which was supported by declarations and other evidence, and not by way of a plaintiff's motion for class certification. 

An affirmative substantive challenge by a defendant to knock out class issues is hardly novel, but it would not appear to be typically done.  (At least, this would appear to be the case as most opinions dealing with class certification issues, when based upon an evidentiary submissions, arise from a denial of a plaintiff's class certification, not a denial of defendant's motion challenging class issues.) 

When it becomes apparent that a lawsuit cannot be expediently resolved at the pleading stage, defendants should immediately consider what steps it can take to defeat an impending motion for class certification.  (For instance, in the case of BCBG, the defendant obtained the declaration of putative class members demonstrating the lack of typicality and absence of a predominating common question.)  Then, instead of waiting to oppose a motion for class certification, the defendant brought its own motion challenging class issues.

Affirmatively challenging class issues provides a number of advantages.  A defendant can more clearly set forth the salient issues for the court, instead of having to respond to the issues as framed by the plaintiff.  Also, the defendant can operate on its own schedule in marshalling evidence for its motion, instead of having to respond to a motion within the time constraints set by the rules of civil procedure as triggered by plaintiff's motion.  Finally, by being the movant, the defendant also has the opportunity to have the "last word," by way of a reply memorandum, to address issues that were not previously considered, instead of the other way around.

Of course, affirmatively bringing a substantive challenge to class may not always be advisable and depends upon the particular facts of the case.  After all, it may be the case that defeating class certification in a particular action could prove impossible and a motion by the defendant might only serve to accelerate the certification of a case, thereby increasing settlement pressure. 

It is nevertheless important to take early steps to gather evidence to address class issues (whether it is used in an affirmative motion or opposition) and actually evaluate whether an affirmative motion to challenge class is appropriate, as opposed to simply letting the decision be made for you by way of inaction.