Defendants often consider whether weak class allegations can be stricken at the pleading stage, leaving just a low-exposure individual claim to defend.  That tactic may have a great chance of success—especially when a complaint asserts state-law claims on behalf of a nationwide class or challenges multiple misrepresentations—in light of a recent Fifth Circuit decision approving that strategy.

In Elson v. Black, __ F.4th __, 2023 WL 111317 (5th Cir. Jan. 5, 2023), plaintiffs brought a putative class action alleging that the defendants made various misrepresentations about a massager.  Plaintiffs sought a nationwide class and, in the alternative, seven subclasses representing the seven states where they reside.  The district court granted the defendants’ motion to strike the class allegation, a decision the Fifth Circuit upheld on several grounds.

First, the Fifth Circuit held that plaintiffs failed to show that the differences in state law would not predominate over individual issues.  The plaintiffs attempted to analyze the differences in the reliance requirements of the relevant state laws, but the Fifth Circuit found that those differences “swamp[ed] any common issues and defeat[ed] predominance.”

Second, the Fifth Circuit determined that the plaintiffs’ allegations introduced “numerous factual differences that in no way comprise a coherent class.”  Notably, the plaintiffs relied on different misrepresentations about different aspects about the product’s promised benefits—some were disgruntled because they expected the device to reduce cellulite, some were unhappy because they expected it to reduce their pain, and others were dissatisfied because they expected it to help them lose weight.  The court reasoned that “[d]iscerning the truth or falsity of each representation would require a group-by-group analysis” and that “even within these groups, the possibility of class analysis disintegrates because the members did not rely on the same alleged misrepresentations.” 

Finally, the Fifth Circuit rejected plaintiffs’ proposal of state-specific subclasses, nothing that “‘subclass’ is not a magic word that remedies defects of prominence” and that plaintiffs failed to meet their burden to show “how certain proposed subclasses would alleviate existing obstacles to certification.”

The Fifth Circuit’s decision confirms that defendants should carefully evaluate whether to seek to strike class allegations where the plaintiffs’ claims involve substantial variations in state laws and factual differences are apparent from the face of the complaint.  Defendants should also be mindful that courts in certain circuits may be less receptive to striking class allegations.