The Defendant Strikes Back: A Strategy for Managing Nationwide Class Action Risk

Class actions are designed to aggregate claims and create efficiencies, but for defendants, they often present sprawling risk, potentially nationwide exposure, and create immense settlement pressure long before the merits are even tested. In recent years, defendants have increasingly turned to an early procedural weapon to limit exposure: the motion to strike nationwide class allegations. By challenging national class claims at the pleading stage, defendants can narrow or even eliminate class allegations and reduce their overall litigation exposure before costly discovery begins. Although the viability of these motions can differ widely depending on the judge and jurisdiction, the governing rules give courts the authority to dismiss deficient class allegations early when they are facially untenable.

This strategy allows defendants to “strike back,” leveraging early procedural opportunities to dismantle improper nationwide class claims at the very outset of litigation and dampen the other side’s power play. When successful, these motions can dramatically drive down the case value and help facilitate more manageable early settlement discussions. Even where such motions are unsuccessful, they can be useful in sensitizing the court to key defects, which can help steer the case in a favorable direction and narrow discovery.

I. Legal Bases for Motions To Strike Nationwide Class Allegations

It is generally well-accepted that district courts may strike class allegations before discovery is complete when it is apparent from the face of the pleadings that the proposed class cannot be certified under Federal Rule of Civil Procedure 23.¹

The legal basis for authorizing such motions, however, is less settled. Defendants generally rely on two procedural hooks when advancing early motions to strike class allegations: Federal Rules of Civil Procedure 12(f), on the one hand, and 23(c)(1)(A) and 23(d)(1)(D), on the other. Some courts have rejected motions brought solely under Rule 12(f), reasoning that class allegations are not “an insufficient defense,” “redundant,” “immaterial,” “impertinent,” or “scandalous” under that rule.² And Rule 23(d)(1)(D) provides that “the court may issue orders that … require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.” Taken together, courts have held that these provisions authorize pre-discovery motions to strike.³

Some defendants have also sought to dismiss class claims under Rule 12(b)(6) and the Twombly/Iqbal standard on the ground that “the complaint lacks any factual allegations and reasonable inferences that establish the plausibility of class allegations.”⁴ The prevailing view seems to be generally that Rule 12(b)(6) is not the proper vehicle for eliminating class allegations. Some defendants, however, have enjoyed recent success with these motions, though it is not clear that the result would have been any different had the court analyzed the motion under Rules 12(f) or 23.⁵

Local rules may also play a role. For example, the Central District of California requires that motions for class certification be filed “[a]t the earliest possible time,”⁶ creating an opportunity for defendants to challenge inadequately pleaded class allegations at the outset. Some courts’ local rules go even further and expressly authorize the filing of early motions to strike class allegations.⁷

The bottom line is to familiarize yourself with the court’s rules and the caselaw of your jurisdiction before moving to strike, as a simple procedural misstep can give courts an easy way to deny your motion without reaching its merits. As a best practice, when in doubt, invoke both Rules 12(f) and 23 (and, to the extent available, applicable local rules) in your motion. And if your judge or jurisdiction has endorsed resolving the issue under the 12(b)(6) standard, consider invoking this provision as well in combination with Rules 12(f) and 23.

II. Nationwide Class Allegations and Choice-of-Law Problems

A. The Fundamental Obstacle: State Law Variations

The most fertile ground for striking class allegations at the pleading stage arises when plaintiffs seek to certify a nationwide class under state consumer protection, tort, and/or warranty laws. In the typical case involving consumer transactions, one or a small number of plaintiffs will invoke the laws of either their or the defendant’s home states and attempt to assert claims under those laws on behalf of proposed classes of consumers nationwide.

Under traditional choice-of-law principles, the applicable law in most consumer class actions is generally the one with the most significant relationship to the claims at issue, which is usually the law of the state where the consumer bought the product and/or where the alleged injury occurred. For example, in its landmark decision in In re Bridgestone/Firestone, Inc.,⁸ the Seventh Circuit rejected an attempt by the plaintiffs to apply Indiana state law to claims by individuals across the country. The court held that the “conclusion that one state’s laws would apply to claims by consumers throughout the country … is a novelty.”⁹ Differences across states, it explained, “are a fundamental aspect of our federal republic,” and “courts must respect these differences rather than apply one state’s law to sales in other states with different rules.”¹⁰ The Ninth Circuit reached the same conclusion in Mazza v. American Honda Motor Co.,¹¹ rejecting efforts to certify a nationwide class under California’s consumer protection and unjust enrichment laws, holding that each class member’s claim should be governed by the laws of the jurisdiction in which the transaction took place.¹² Although both of these decisions were reached in connection with a motion for class certification, courts have reached the same conclusions pre-discovery on motions to strike class allegations. Thus, in general, principles of federalism and conflicts of laws will prevent courts from applying a single state’s laws to a class of nationwide claimants.

Correspondingly, courts have been clear that applying the laws of 50 states will present manageability and predominance issues because those laws have differences that will make class-wide adjudication impossible. For example, in Pilgrim v. Universal Health Card, LLC,¹³ the Sixth Circuit “refused to allow a nationwide class covered by the laws of different States because “the district judge would face an impossible task of instructing a jury on the relevant law.”¹⁴

Most recently, the Fifth Circuit in Elson v. Black,¹⁵ struck nationwide class allegations underlying Arizona, California, Florida, Louisiana, Nevada, New York, and Ohio state warranty, consumer protection, and unjust enrichment laws because the plaintiffs failed to show how they could satisfy Rule 23’s requirement that common issues predominate over individual questions. The court held that, at the pleading stage, “[t]he district court was required to consider differences in state law when discerning whether a class action is the appropriate vehicle for this suit,” and that the plaintiffs had failed “to assure the district court that such differences in state law would not predominate over issues individual to each plaintiff in the litigation.”¹⁶ That obligation, the court explained, included “provid[ing] an extensive analysis of state law variations so that the district court could consider how those variations affect[ed] predominance,” which the plaintiffs fell short of satisfying.¹⁷ The Fifth Circuit concluded that the “variations in state law here swamp[ed] any common issues and defeat[ed] predominance.”¹⁸

Together, Pilgrim and Elson provide defendants with a clear roadmap for defeating nationwide class allegations either seeking to apply the laws of different jurisdictions or a single state’s body of law nationally pre-discovery. Defendants in the Fifth and Sixth Circuits have binding, precedential court of appeals decisions to shut the door on nationwide class actions in most consumer transaction cases. And defendants in other jurisdictions are now armed with persuasive authority from sister circuits that can be leveraged in their respective cases.

To try to avoid this issue, some plaintiffs have sought certification of narrower multistate classes focused on heavily populated states. The same strategy for attacking national classes can be deployed for defeating multistate class allegations, as the same predominance and manageability problems would apply.¹⁹

B. Practical Considerations for Defendants

As courts are becoming more and more bogged down as their case volumes continue to grow year after year with the proliferation of nationwide class actions, some courts appear to be more sympathetic to striking national class allegations right out the gate. There are a few simple strategies that defendants can use to help their cause on these motions.

First, defendants seeking to strike nationwide class allegations should file an appendix mapping conflicts among the relevant laws of all 50 states. Courts have faulted plaintiffs who fail to grapple with these differences, as in Elson, where the Fifth Circuit struck nationwide class allegations after finding that the plaintiffs had failed “to provide an extensive analysis of state law variations so that the district court could consider how those variations affect[ed] predominance.”²⁰

Second, “show, don’t tell.” Do not simply rely on the court to sift through the large 50-state survey appended to the motion. Provide real examples in the motion that illustrate some of the conflicts. If there are multiple named plaintiffs hailing from several states, show how the relevant laws in just those states differ sharply. If there are concrete examples that can be offered to show how these variations as applied to the plaintiffs based on the allegations pled in the complaint would yield different results, that can be an effective way to drive the point home.

Third, emphasize that there is no amount of discovery that can rectify this problem and shift the onus to plaintiffs in their opposition to attempt to articulate what discovery they would seek and how it would impact the choice-of-law question and predominance and manageability concerns raised.²¹

III. Conclusion

Motions to strike class allegations are not a panacea. But where plaintiffs attempt to bring nationwide class claims based on one state’s or many different states’ laws, the defects are often evident on the face of the complaint and present a clear and purely legal question that will not be impacted by discovery. Defendants who seize the opportunity to “strike back” can dramatically narrow exposure, avoid costly discovery, and shift settlement leverage in their favor. And even where such motions are ultimately unsuccessful, they can still play a useful role in sensitizing the court to significant threshold obstacles plaintiffs will need to overcome to achieve nationwide class certification, which can lead to a much narrower discovery plan.

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.