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What role do dispositive motions play in class action litigation? When and why would plaintiffs or defendants file dispositive motions? What strategic considerations exist for filing dispositive motions? What effects do dispositive motions have on individual and class claims? When and how should courts handle dispositive motions? Various dispositive motions are routinely filed in class action litigation, before and after class certification. Frequently, however, courts decline to rule on dispositive motions until after class certification. The timing of such motions, and a court’s grant or denial, has different effects on the course of class litigation. Reported decisions relating to dispositive motions are sparse, and principles governing class action dispositive motions conflict. �OPT-OUT’ PROVISION Defendants are most likely to file dispositive motions prior to a court’s hearing on class-certification issues, because if the defendant can succeed on such motions, it may result in dismissal of the plaintiff’s individual case and effectively moot the entire proposed class action. If a court declines to rule on a defendant’s dispositive motions prior to class certification, then plaintiffs and defendants may have an incentive to file dispositive summary judgment motions after class certification. If either the plaintiff or defendant can succeed on a summary judgment motion prior to a class trial, each would obtain the benefit of a binding class-wide determination on the merits of the litigation, without a trial. Class actions filed under Rule 23(b)(3) (the “opt-out” provision) present an even more complicated problem for dispositive motions. A highly controversial debate concerns parties who seek summary judgment after class certification, but prior to mailing class notice. Authorities disagree about the proprieties of pre-notice summary judgment decisions, a problem discussed below. The legal effects of motions filed before and after class certification differ, related to whether the court’s ruling binds only the individual plaintiffs (before certification), or all class claimants (after certification). Therefore, attorneys take into account these consequences in deciding whether to file dispositive motions prior to or after a class certification decision. Generally, there are two universes of dispositive motions that may be filed in class litigation. The first category encompasses procedural motions unrelated to the merits of the litigation. For example, defendants may file motions to dismiss based on lack of personal jurisdiction, subject matter jurisdiction, defects in venue or defects in service of process. The Manual of Complex Litigation (1995) suggests that judges ought to rule on such dispositive motions prior to class certification. “The court should rarely postpone a ruling on subject matter jurisdiction or jurisdiction of the parties. Similarly, defects in venue or service of process should ordinarily be raised so that they may be timely corrected before the case is permitted to proceed.” Manual for Complex Litigation Third at � 30.11. In addition to these motions, parties also may file dispositive motions relating to failure to state a cause of action, lack of standing, transfer of venue, consolidation, abstention or stay of proceedings, preliminary injunctions, amendments of the complaint, settlement approval or voluntary dismissal. SeeHerbert Newberg and Alba Conte, Newberg on Class Actions, 3d Edition � 7.15. Courts may rule on these motions prior to, simultaneous with or after the class certification. Id. The second highly controversial category is summary judgment motions, which engender heated disagreement in class action procedure. The timing of summary judgment motions presents interesting strategic decisions for defendants and plaintiffs. Judge Richard Posner has aptly captured the defendant’s strategic considerations in pursuing summary judgment prior to class certification: “Class actions are expensive to defend. One way to try to knock one off at low cost is to seek summary judgment before the suit is certified as a class action. A decision that the claim of the named plaintiffs lacks merit ordinarily, though not invariably, disqualifies the named plaintiffs as proper class representatives. The effect is to moot the question whether to certify the suit as a class action unless the lawyers for the class manage to find another representative.” Cowen v. Bank United, 70 F.3d 937 (7th Cir. 1995). However, seeking summary judgment prior to class certification sacrifices the defendant’s opportunity to obtain a class-wide binding judgment: “When the procedure we have just described is followed, the defendant loses the preclusive effect on subsequent suits against him of class certification but saves the added expense of defending a class action and may be content to oppose the members of the class one by one, as it were, by moving for summary judgment, every time he is sued, before the judge presiding over the suit decides whether to certify it as a class action.” Cowen, id. Not surprisingly, plaintiffs’ class counsel strenuously oppose defendants’ attempts to seek court rulings on summary judgment prior to class certification, and one class action treatise suggests that “Recent cases have held, usually on the grounds of judicial efficiency, that class certification issues should be addressed before consideration of a dispositive (i.e., summary judgment) motion.” Newberg on Class Actions at � 7.15. However, the Manual for Complex Litigation notes that courts have been divided over whether an action may be dismissed on the merits before certification, instructing that “When it is clear that the action lacks merit, dismissal will avoid unnecessary expense for the parties and burdens for the court, but the court should consider whether the interests of the putative class members may be prejudiced.” Manual for Complex Litigation Third at � 30.11. 7TH CIRCUIT TAKES LEAD The 7th U.S. Circuit Court of Appeals has taken the lead among federal courts in upholding defendant summary judgment decisions prior to class certification. See, e.g., Chavez v. The Illinois State Police, 251 F.3d 612, 629-631 (7th Cir. 2001); Cowen v. Bank United, 70 F.3d 937 (7th Cir. 1995). Similarly, some state courts have recognized that trial judges properly may consider a defendant’s summary judgment motions prior to class certification. See, e.g., Grizzle v. Texas Commerce Bank, 38 S.W.3d 265 (Texas App. Dallas [5th Dist.] 2001) (relying on Wright v. Schrock, 742 F.2d 541, 543 (9th Cir. 1984) and the Manual for Complex Litigation Third); see also Domizio v. Progressive County Mutual Insurance Co., 54 S.W.3d 867 (Texas App. Austin [3d Dist.] 2001). The most controversial situation relates to plaintiffs’ summary judgment motions after class certification in Rule 23(b)(3) opt-out class actions. Generally, strategic considerations favor the plaintiffs’ pursuit of summary judgment to resolve the merits of the case after the court grants certification. It highly favors plaintiffs’ interest to seek a summary judgment ruling, which will spare the plaintiffs the trial expense while obtaining classwide remedies. In the Rule 23(b)(3) context, however, the possibility that plaintiffs may obtain a summary judgment ruling after class certification, but prior to the mailing of notice to class members, raises controversial issues relating to equity and fairness. This scenario raises the spectre of the repudiated concept of “one-way intervention” by putative class members. Thus, if class counsel are able to obtain a favorable summary judgment on class claims and then subsequently send notice, class claimants benefit from a successful result without having to make a decision, on the merits, prior to a trial whether to opt-out. THE ART OF EXITING THE CLASS However, if class counsel are unsuccessful on summary judgment and notice is then sent, the class members are not bound by the adverse summary judgment, but may exit the class through the opt-out. See Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352 (Texas 2001) (discussing one-way intervention issue). The converse problem concerns the equities of defendants’ obtaining summary judgment after class certification, but prior to sending class notice. In one such case, the defendants who prevailed on their post-certification summary judgment motion petitioned the court to require class counsel to send notice to class members (even though the claimants had lost as a consequence of the summary judgment motion). The district court, in a split decision, refused to order the plaintiffs to send notice and the 9th Circuit upheld this ruling. See Schwarzschild v. Tse, 69 F.3d 293 (9th Cir. 1995). Where the defendants prevailed on summary judgment prior to sending notice to the class, the court indicated: “Given that notice would serve no purpose in this case save to require the plaintiffs to engage in a costly and unnecessary expense, we decline to apply Rule 23(c)(2) in a manner that is clearly contrary to the intent of its framers.” Schwarzschild, id. Linda S. Mullenix is the Morris and Rita Atlas Chair in Advocacy at the University of Texas School of Law. She is the author of “State Class Actions: Practice and Procedure” (CCH 2000). She may be reached at [email protected].

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