Master Class: Dispositive Motions

Abstract

Commentary and analysis of the role of dispositive motions in class action litigation. The article addresses various questions, such as: (1) when and why would plaintiffs or defendants file dispositive motions in class litigation?, (2) what strategic considerations exist for filing dispositive motions?, (3) what effects do dispositive motions have on individual and class claims?, and (4) when and how should courts handle dispositive motions? The article notes that dispositive motions routinely are filed in class action litigation, both before and after class certification, but that most courts decline to rule on such motions until after class certification. The timing of such motions, and the court’s grant to denial, has different effects on the course of class litigation. Peculiar problems raised by Rule 56 summary judgment motions, in the context of Rule 23(b)(3) opt-out damage class actions. The article discusses Seventh Circuit cases and Judge Posner’s decision in Cowen v. Bank United, 70 F.3d 937 (7th Cir. 1995), as well as other federal cases on the effects of summary judgment motions in class litigation. The article also notes the Manual for Complex Litigation's best practice rules with regard to dispositive motions in class litigation.

Keywords: Rule 23, class actions, dispositive motions, summary judgment in class actions, Cowen v. Bank United, Rule 23(b)(3), Rule 12(b)(6), Rule 12(b)(1), Rule 12 motions