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Fifth Circuit Affirms Striking of Class Allegations


On January 5, 2023, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s decision to strike class allegations after only limited discovery.

In this case, Elson v. Black, No. 21-20349, 2023 WL 111317 (5th Cir. Jan. 5, 2023), fourteen Plaintiffs brought a putative class action against Defendants for deceptive marketing of their product, FasciaBlaster.

Defendants moved to strike Plaintiffs’ class allegations.  The district court granted the motion finding that Plaintiffs failed to effectively assert commonality among the class members.  Plaintiffs filed an interlocutory appeal to the Fifth Circuit.

Upon review, the Fifth Circuit upheld the district court’s finding that the class allegations should be stricken.  But the Fifth Circuit took a different approach in reaching this conclusion.  Rather than inquiring about commonality, the Fifth Circuit held that Plaintiffs were unable to establish predominance, a similar but far more demanding test for determining whether classes are sufficiently cohesive. 

The Fifth Circuit found that different state laws governed each Plaintiff’s claims, and Plaintiffs did not “assure the district court that such differences in state law would not predominate over issues individual to each plaintiff in the litigation.”

Moreover, the Fifth Circuit held that there were too many factual differences among the Plaintiffs that prevented the establishment of a coherent class. 

While the Fifth Circuit acknowledged the brevity of the district court’s decision, it also found that the district court’s decision was sound, and not an abuse of discretion.  The Fifth Circuit agreed that the class allegations were appropriately stricken.

Class action defendants should remember that filing a motion to strike a class allegation, while rarely granted, is a viable procedural tool that may result in the dismissal of a class action allegation.  Given the precedent, this is particularly important to consider in the Fifth Circuit.  


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