by Philip M. Busman, Robert E. Johnston, Julia R. Milewski
Washington Legal Foundation
August 05, 2014
In the past few years, the trickle of labeling-fraud suits has become a torrent. Plaintiff-friendly jurisdictions are inundated with near daily filings of new cases. For defendants in labeling-fraud cases, the fight is over class certification, where a win can effectively end the case. There are a few key strategies for fighting aggregation of label-fraud cases. One is to press the certification issue by requesting bifurcation of class-certification discovery and merits discovery at the outset of a labeling-fraud class-action lawsuit. Another is to use the variety of legal hooks in Rule 23 for fighting class certification claims. Other fights can be won on grounds of ascertainability (who’s in the class?) or typicality, where the named class representative is not “typical” in representing the interests of the rest of the class members. These strategies can help companies avoid multimillion dollar settlements.