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.