Win or lose, class actions that make it past the pleadings threaten businesses with enormous defense costs, especially the costs associated with class-wide discovery. As we've discussed before on this blog, one powerful tool for defendants to avoid these costs is to file an early motion to strike class allegations, taking a shot at nipping the class action in the bud when it is apparent from the pleadings that a class cannot be certified.
We were therefore pleased to see the Fifth Circuit recently join the growing ranks of courts that have endorsed pre-discovery motions to strike class allegations. In Elson v. Black, 56 F.4th 1002 (5th Cir. 2023), the court affirmed the district court's order striking plaintiffs' class allegations in their entirety. (The court also affirmed in large part the dismissal of the individual plaintiffs' claims.)
Background
Elson involved a challenge to the marketing of a device called the "FasciaBlaster." According to the plaintiffs, the defendants falsely advertised the device's ability to reduce cellulite, help with weight loss, and relieve pain. Based on these allegations, the named plaintiffs sued under the consumer protection statutes of seven different states, as well as under the Magnuson-Moss Warranty Act, which incorporates state warranty laws. The plaintiffs sought to represent a single nationwide class, as well as seven single-state subclasses.
The defendants responded to the complaint by moving to strike the class allegations and to dismiss for failure to state a claim. The district court granted both motions, and the plaintiffs appealed.
The Fifth Circuit's Opinion
The Fifth Circuit affirmed in substantial part, concluding that the district court correctly struck the class allegations and correctly dismissed all but two of the claims.
Starting with the class allegations, the Fifth Circuit first held that the motion to strike class...
