In recent years, federal courts around the country have shifted their view on early motions to dismiss or strike class allegations. The courts are not wedded to the long-standing view that preemptive, pre-discovery motions to strike class allegations are premature. Often accompanying defendants’ Rule 12 motions to dismiss, an early motion to strike class allegations can be, if successful, case determinative, saving substantial time, money and defendant resources. While many courts still fall back to the traditional rule, other courts have permitted proactive motions attacking class allegations at the beginning of a case to allow swift resolution of dubious class claims. A review of recent New Jersey federal court decisions considering early motions to strike class allegations shows that the law is clearly in flux and remains an area to monitor in the short term.

The federal rules offer several procedural avenues for attacking class allegations. Fed. R. Civ. P. 23(c)(1)(A) provides that the court must—”[a]t an early practicable time”—determine by order whether to certify the action as a class action. Further, Rule 12(f) permits a motion to strike “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The federal rules also allow that a “court may issue orders that … require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.” Fed. R. Civ. P. 23(d)(1)(D).

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