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Learning from the Past to Combat the “Entrepreneurial Model” of Class Actions

What’s past is prologue

-William Shakespeare, The Tempest, Act 2, Scene 1.

The meteoric rise in class actions over the past decade has been well-documented.  Nowadays even mac & cheese is under attack, with two proposed nationwide class actions filed this month alone claiming labels such as “The Taste You Love”[1]  and “Made with Goodness!”[2] are false and misleading.

Hair care products are also in the crosshairs.  This month a plaintiff and her lawyers filed their second class action in a year alleging beauty companies falsely advertised their shampoo as “natural.”[3]

From consumer product companies to banks,[4] universities[5] and even The World Health Organization,[6] it seems that no one is beyond of the reach of the class action, especially in the wake of the coronavirus pandemic.  But have the plaintiffs in these cases suffered a bona fide injury caused by the defendants’ conduct?

Many contemporary class actions exhibit features of what one legal scholar of past mass tort waves dubbed the “entrepreneurial model”[7] of lawyer-driven litigation.  This article examines those features and the problems they present, and discusses how they can be leveraged in the defense of class actions—from standing to certification to merits.

Background: The “Entrepreneurial Model” of Mass Torts

In the early 2000s, legal scholar Lester Brickman[8] identified a shift in asbestos litigation “from the traditional model of an injured person seeking a lawyer” to what he described as “an entrepreneurial model under which plaintiff lawyers and their agents actively recruited hundreds of thousands of potential litigants who could claim . . . exposure to asbestos containing products.”[9]  Professor Brickman “concluded that a substantial percentage of these nonmalignant claimants”—that is, people alleging injuries other than cancer—“had no disease caused by asbestos exposure”; had “no loss of lung function”; and, that “the claims were often supported by specious medical evidence and entrepreneurially generated witness testimony[.]”[10]

Professor Brickman’s scholarship and the awareness it raised energized the defense of mass asbestos litigation and resulted directly or indirectly in a number of reforms.[11]  In addition, at least one company long-targeted by mass asbestos suits successfully pursued RICO, fraud, and conspiracy claims against two lawyers and a radiologist for manufacturing and prosecuting fraudulent claims,[12] recovering $7.3 million in damages and attorneys’ fees from the defendants (“the CSX case”).[13]

The Rise of Class Actions

The explosive rise of class actions over the past decade is no secret.  In 2019, Law360 reported that “[t]he cost of dealing with class actions has reached its highest level since the 2008 recession,” with the ”amount companies are spending to defend themselves against class actions increas[ing] for the fourth year in a row to $2.46 billion in 2018.”[14]  The increase in so-called “consumer protection” class actions has been particularly steep.  According to one report, the number of such cases “has nearly tripled in the past decade.”[15]  False labelling actions also have been on the upswing.[16]

COVID-19 is only amplifying these existing trends.  One group of researchers recently found that while “the number of class action lawsuits had been continuing to trend upward even before the pandemic . . . COVID-19 brought on a sharp increase in new filings.”[17]

The Entrepreneurial Model and Contemporary Class Actions

Through his scholarship, Professor Brickman identified a number of recurrent features associated with claims generated through the “entrepreneurial model.”  Many contemporary class actions exhibit—often strikingly so—these same features.

The first “element[] of the entrepreneurial model” is “a massive client recruitment effort.”[18]  Of course, client recruitment lies at the heart of many class actions, with tried and true personal and professional networks often playing a vital role.[19]  The practice of lawyers enlisting friends, family members and employees as class representatives was perceived by Congress to be such an issue that it proposed in 2017 to ban the first two and require automatic disclosure of the third (the proposal was not approved by the Senate).[20]

The second element of the classical entrepreneurial model is “no medically cognizable . . . injury.”[21]  In the modern class context, this roughly translates into no economically or legally cognizable injury arising from the defendant’s alleged violation(s).

Indeed, a threshold issue in many, if not most, consumer protection actions is whether the plaintiff has suffered a concrete injury-in-fact sufficient to confer standing.[22]  Claims brought under the Telephone Consumer Protection Act (“TCPA”) are a prime example.  In one representative case from last year, a court rejected on standing grounds a putative class action arising from text messaging where the only injuries alleged were “Loss of Privacy, Wasted Time, and Intrusion Upon Seclusion, and “Consumption of Phone Battery and Data Plan.”[23]

Privacy cases are also illustrative.  Earlier this year a court dismissed a proposed class action alleging that Apple violated consumers’ privacy rights because “Siri” could be accidentally triggered and private communications had been disclosed without consent.[24]  The court ruled that neither of the plaintiffs’ “two theories of harm”—that “Apple disclosed Plaintiffs’ private information without consent and” that “Plaintiffs suffered an economic injury because they overpaid for, and did not receive the full benefit of, their Apple devices”—were sufficient to establish standing.[25]  Rather, the alleged injuries were purely “hypothetical . . . privacy harms of other class members that may not have affected Plaintiffs at all.”[26]

The third and fourth elements of the entrepreneurial model are that “the claims of injury are often supported by entrepreneurially generated . . . evidence,” and “are further supported by ‘litigants’’ testimony that is often the product of entrepreneurial witness preparation techniques[.]”[27]  Such conduct formed the basis of the plaintiff’s claims in the CSX case.  Among other things, the Fourth Circuit found there was evidence sufficient to entitle a jury to “reasonably conclude the lawyer defendants committed an act of fraud by falsifying the occupational exposure required as a necessary element of the asbestos claim they filed.”[28]

Some recent cases allege similar conduct in the consumer class context.  That is, lawyers being the driving force behind the purchases or other events giving rise to the alleged claims, as well as the evidence used to support them.

Last year, for example, the California Court of Appeals permitted a clothing manufacturer to proceed with a malicious prosecution action against the former named plaintiffs and plaintiffs’ lawyers in a putative class action claiming the manufacturer’s “Made in the U.S.A.” labels were misleading (“the Jeans Case”).[29]  The court reasoned:

Considering [the plaintiff’s] familial relationship with [one of the plaintiff attorneys], her history of serving as a plaintiff on mislabeling cases for the Del Mar Attorneys, her willingness to buy foreign made products (including jeans and shoes), her admission that she did not look at the labels before buying products, the fact she left the tags on her jeans, and her withdrawal as the named plaintiff, a reasonable inference could be drawn that she was a shill plaintiff. In other words, she purchased the subject jeans not because she was duped by the “Made in the U.S.A.” label, but because she wanted to again assume the role as a named plaintiff in another mislabeling case for the Del Mar Attorneys.[30]

In another pending case, a financial services provider is suing a number of “debt counseling companies and law firms, as well as various individuals affiliated with them,” alleging that they “conspired together to defraud plaintiff out of millions of dollars in outstanding student loan debt in part by manufacturing federal lawsuits and arbitration claims against plaintiff for purported violations of the [TCPA].”[31]  The plaintiff alleges, inter alia, that “the law firms would instruct the student loan debtors to call plaintiff, using a script provided by the law firms, to revoke their consent to receive calls from plaintiff about their loans.”[32]  The “law firms would then instruct the student loan debtors not to answer any calls from plaintiff, and instead to tally the number of calls they received,” and “would then initiate TCPA actions against plaintiff” based on the calls (“the Student Loan case”).[33]

In opposing summary judgment, which the district court denied,[34] the plaintiff extensively invoked the CSX case, including in support of its contention that “a plaintiff alleging fraud may establish liability based on the defendant’s pursuit of sham litigation [here, under the TCPA] against the plaintiff.”[35]  The case is currently set for trial in July 2021.

The remaining elements of the entrepreneurial model are bringing actions “mostly in a small number of jurisdictions”; filing actions “en masse in selected courts”; and, leveraging these pressures to cause defendants to “adopt settlement strategies that include[] payment of compensation irrespective of whether the litigants had suffered any actual injury . . .[that] was substantially caused by  . . . defendant[.]”[36]  These elements, too, are present in some form in much contemporary consumer class litigation.

California, in particular, has proven to be an attractive venue, where, as one article notes, “litigants seek to take advantage of the state’s expansive consumer protection laws.”[37]  Meanwhile, the class action mechanism itself creates the “en masse” effect and associated settlement pressure.  Whereas the mass asbestos cases of the past required hundreds of individually identified and named plaintiffs, putative class actions require only a handful of representative ones.

Defending Entrepreneurial Class Actions

Having analyzed contemporary class actions through the lens of the entrepreneurial model, we now discuss how these features can be leveraged in the defense of such actions.

Standing and Causation

First and most fundamentally, a case’s entrepreneurial origins may have implications for the named plaintiffs’ standing to bring the claims at all.  Although courts seem more willing to dismiss consumer class actions on standing grounds in the wake of the United States Supreme Court’s seminal decision in Spokeo, Inc. v. Robins,[38] not at all claims can be disposed of under Spokeo and its progeny.

But what if it can be shown that an otherwise legally sufficient “injury” was lawyer-driven?  Take, for example, a fact pattern like the Jeans case, in which it is alleged that the representatives were recruited by class counsel as “shill plaintiffs” who “purchased the . . . jeans to serve as a plaintiff . . . in order to be paid.”  Or, the Student Loan case, in which it is alleged that lawyers recruited clients who they instructed to surreptitiously revoke consent to receive calls concerning their loans in order to manufacture TCPA claims.

“An injury sufficient to confer standing cannot be manufactured for the purpose of litigation.”[39]  Thus, in one TCPA case, the court held that the plaintiff had “not suffered an economic injury” sufficient to confer standing where she “admitted that her only purpose in purchasing her cell phones and minutes is to receive more calls, thus enabling her to file TCPA lawsuits.”[40]  The same analysis should apply when the injury is effectively “manufactured” by the claimant’s lawyer.

One MDL court’s reaction to such a fact pattern is instructive.  There, evidence surfaced that certain class counsel may have directed individuals to purchase the allegedly mislabeled products at issue in order to “recruit” them as class representatives.[41]  Upon learning of class counsel’s conduct, the court stated:  “[I]t’s clearly not appropriate and clearly not permissible. A plaintiff of that nature . . . would . . . lack standing to proceed.”[42]  Ultimately, the court dismissed several named plaintiffs impacted by the alleged conduct.[43]

As in that case, where there is evidence that the “injury” underlying a class action (or any action, for that matter) was effectively “manufactured” by counsel, courts should consider it as part of the threshold standing analysis.  Spokeo demands as much: “Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”[44]  Self-inflicted or lawyer-manufactured “harms” do not pass muster under this standard.

For similar reasons, the entrepreneurial features of a class action may also bar a finding of causation, reliance or damages.  If a lawyer instructs a client to purchase a supposedly mislabeled product for the purpose of bringing a claim, then the plaintiff did not rely on any statement or omission by the defendant, and the defendant’s labeling is not the cause of the plaintiff’s “harm.”[45]

Class Certification

A case’s entrepreneurial features are also relevant to the requirements for class certification under Fed. R. Civ. P. 23(a), namely typicality and adequacy of both plaintiff and class counsel.  Indeed, the “idiosyncrasies” and “unique defenses” associated with lawyer-driven claims can preclude the requisite showings under both Rule 23(a)(3) and (4).[46]

In one case, a court found a plaintiff could not “adequately represent the class” where the evidence suggested that she had based certain “testimony on a memory that reconstructed the relevant events around her discussions with [class counsel] and the filing of this suit,” “indicat[ing] that Plaintiff has, at least unknowingly, tailored aspects of her memory to fit the narrative of this action.”[47]  Based on the “Plaintiff recall[ing] the events in a way that fits the narrative of this lawsuit” and her “eight-year friendship involving weekly gatherings” with class counsel, the court concluded “that Plaintiff may have, at best, unduly relied on her close friend [class counsel], or, at worst, have no real interest in prosecuting this action other than to assist her close friend in recovering a sizeable fee award relative to the small individual recoveries of the class members.”[48]

In another case, the court observed that two of the original named plaintiffs—who the evidence suggested had “purchased [the product at issue] at class counsel’s direction for the purpose of initiating this lawsuit . . . using funds class counsel had given them . . . would not have been adequate class representatives had they remained in the case[.]”[49]  As to the remaining plaintiff, the court found that class counsel, who was the case’s “source and its driver” and who “commenced” the case in the aforementioned “dubious manner,” was not adequate under Rule 23(a)(4)—even with the addition of co-counsel.[50]  The court distinguished between “a case where the class counsel merely solicited a person to serve as a named plaintiff,” and the case before it, in which the “evidence . . . strongly indicates that class counsel instructed [two of the original plaintiffs] to purchase the service plans that gave rise to their claims, and gave them the funds to do so.”[51]

Exposing a Case’s Entrepreneurial Origins

Persuading courts to reject entrepreneurially manufactured class actions is, of course, only half the challenge.  Defendants must first develop the evidence necessary to support such arguments.

While standing is jurisdictional and, therefore, capable of being raised in an initial motion to dismiss under Rule 12(b)(1) (as well as “at any [other] time by either a party or by the court”[52]), rarely if ever will the facts necessary to establish the entrepreneurial features of a claim appear on the face of the complaint or in any other source considerable on a Rule 12 motion.[53]  Thus, at least some discovery will likely be required to support the standing and other arguments discussed above.

Rather than waiting to explore a case’s entrepreneurial features during general discovery, one possibility is to seek an initial discovery period limited to standing,[54] or, alternatively, “on the way in which plaintiffs came to counsel.”[55]  Rules 26 and 42 grant district courts broad discretion regarding the timing, sequence and bifurcation of discovery.[56]  Courts have demonstrated a willingness to bifurcate or limit initial discovery in the class action context where “a narrow, potentially dispositive issue exists,” as is the case with lawyer-manufactured claims.[57]

To support this kind of bifurcated discovery, it may be necessary—and will always be helpful—to make an initial showing of some likelihood that the case was improperly generated.  Such a showing might entail past filings or litigation practices by the plaintiff or class counsel, as well as educating the court on the long, scholarly-documented history of problems associated with claims fitting the entrepreneurial model.

Where the known circumstances do not, in and of themselves, suggest the possibility of impropriety, another option may be to request that the plaintiffs be required to provide at the outset certain, basic facts regarding the origins of their claims.  Such facts might include: (1) the plaintiff’s relationship to counsel, (2) when the plaintiff first communicated with counsel regarding a potential claim, and (3) the date of the purchase or other event giving rise to the claim.  These facts could be provided as part of the Rule 26(a)(1) initial disclosure process,[58] or, in the case of consolidated, MDL-type proceedings, through plaintiff “fact sheets.”  Such facts may, in turn, provide a basis to seek bifurcated discovery as discussed above.

Privilege Considerations

Discovery regarding the origins of a claim may elicit privilege objections.  However, “the dates when [a plaintiff] contacted and hired his attorney are not privileged.”[59]

Likewise, not all communications between lawyer and prospective or current client are privileged.[60]  For example, an unsolicited communication from a lawyer directing an acquaintance to purchase a product for the purpose of making a claim should not be protected.  Such communications do not meet the threshold requirement that the communication be made for the purpose of the client obtaining legal advice.[61]  They also may lack a reasonable expectation of confidentiality.[62]  Internal documents discussing a firm’s entrepreneurial practices “prepared irrespective of any particular claim, created during the course of the firm’s general practice” also should not be protected.[63]

Finally, in cases with evidence of sufficiently serious lawyer misconduct, the crime-fraud exception may apply to render otherwise protected information discoverable.[64]  Although the crime-fraud exception normally arises from client misconduct, courts have also applied it based on lawyer misconduct, reasoning that a “lawyer or law firm may not engage in fraudulent or criminal activity and then hide behind any privilege to protect the firm’s or the individual lawyer’s interests.”[65]

Conclusion

Shakespeare was right, what’s past is prologue, and litigation is no exception.  Professor Brickman’s entrepreneurial model of past mass torts is a valuable tool to better understand and defend the class actions of today.  Litigants should probe and expose a case’s potential lawyer-driven features, and, when present, leverage them at each stage of the defense.


This article was also published in Law360.


[1] See Lauraann Wood, Consumers Say Kraft Mac And Cheese Uses Harmful Chemical, Law360 (April 7, 2021) (available at https://www.law360.com/classaction/articles/1373013/consumers-say-kraft-mac-and-cheese-uses-harmful-chemical) (last visited April 9, 2021).

[2] See Dave Simpson, Annie’s Mac And Cheese Uses Harmful Chemical, Suit Says, Law360 (April 1, 2021) (available at https://www.law360.com/classaction/articles/1371511/annie-s-mac-and-cheese-uses-harmful-chemical-suit-says) (last visited April 9, 2021).

[3]  See Matthew Santoni, ‘Natural’ Shampoo Co. JM Brands Hit With False Ad Suit In Pa., Law360 (April 7, 2021) (available at https://www.law360.com/classaction/articles/1372932/-natural-shampoo-co-jm-brands-hit-with-false-ad-suit-in-pa-) (last visited April 9, 2021).

[4] See, e.g., Grace Dixon, Chase, Wells Fargo Kept PPP Loans From Small Shops: Suits, Law360 (April 20, 2020) (available at https://www.law360.com/articles/1265363/chase-wells-fargo-kept-ppp-loans-from-small-shops-suits) (last visited April 9, 2021); Rachel O’Brien, Wells Fargo Wants COVID-19 Forbearance Suit Tossed, Law360 (October 22, 2020) (available a thttps://www.law360.com/articles/1321987/wells-fargo-wants-covid-19-forbearance-suit-tossed) (last visited April 9, 2020).

[5] See, e.g., Dave Simpson, U. Of San Diego COVID-19 Tuition Class Actions Consolidated, Law360 (April 8, 2021) (available at https://www.law360.com/classaction/articles/1373580?utm_source=rss&utm_medium=rss&utm_campaign=section) (last visited April 9, 2021).

[6] See Kling v. The World Health Org., No. 7:20-CV-03124, ECF No. 40 (S.D.N.Y. April 4, 2021) (dismissing putative class action alleging that WHO failed to timely warn of coronavirus pandemic).

[7] Lester Brickman, On The Applicability Of The Silica MDL Proceeding To Asbestos Litigation, 12 Conn. Ins. L. J. 35, 36 (2006) [hereinafter Brickman, Silica MDL and Asbestos].

[8] Lester Brickman is Professor of Law (Emeritus) at Benjamin N. Cardozo Law School of Yeshiva University.

[9] Brickman, Silica MDL and Asbestos, at 36; see also Lester Brickman, On The Theory Class’s Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality, 31 PEPP. L. REV. 33 (2004) [hereinafter Brickman, Theories of Asbestos Litigation].

[10] See Brickman, Silica MDL and Asbestos at 36.

[11] See, e.g., Ohio Rev. Code Ann. § 2307.91 et seq.

[12] CSX Transp., Inc. v. Peirce, 974 F. Supp. 2d 927 (N.D. W. Va. 2013); see also CSX Transp., Inc. v. Gilkison, 406 F. App’x 723 (4th Cir. 2010).

[13] See Emily Field, CSX, Asbestos Attys End 4th Circ. RICO Fight With $7.3M Deal, Law360 (Nov. 6, 2014) (available at https://www.law360.com/articles/594159/csx-asbestos-attys-end-4th-circ-rico-fight-with-7-3m-deal) (last visited April 8, 2021).

[14] Diana Novak Jones, Companies’ Class Action Costs Hit 10-Year High, Survey Says, Law360 (April 16, 2019) (available at https://www.law360.com/productliability/articles/1150432?utm_source=shared-articles&utm_medium=email&utm_campaign=shared-articles) (last visited April 8, 2021).

[15]Amanda Bronstad, Consumer Class Actions Nearly Tripled in the Past Decade, Report Says, Nat’l L. J. (Oct. 23, 2019) (available at https://www.law.com/nationallawjournal/2019/10/23/consumer-class-actions-nearly-tripled-in-the-past-decade-report-says/ (last visited April 8, 2021).  The cited report defines a “consumer protection” case as one asserting at least one of the following federal consumer protection statutes: the Fair Debt Collection Practices Act, Fair Credit Reporting Act, Truth in Lending Act, Telephone Consumer Protection Act, or a federal consumer protection enforcement statute, such as the Federal Trade Commission Act or Consumer Financial Protection Act.

[16] Greg Trotter, Lawsuits challenging food labels on the rise, but are they good for consumers?, Chicago Tribune (May 6, 2016) (available at http://www.chicagotribune.com/business/ct-food-labeling-lawsuits-0506-biz-20160506-story.html) (last visited April 8, 2021).

[17] Emma Cueto, COVID-19 Accelerating Growth Of Class Action Cases, Law360 (July 8, 2020), available at https://www.law360.com/articles/1289937/covid-19-accelerating-growth-of-class-action-cases) (last visited April 8, 2021).

[18] Brickman, Silica MDL and Asbestos at 37.

[19] See, e.g., Bohn v. Pharmavite, LLC, No. CV 11-10430-GHK AGRX, 2013 WL 4517895, at *2 (C.D. Cal. Aug. 7, 2013) (class representative longtime personal friend of class counsel); English v. Apple Inc., No. 14-CV-01619-WHO, 2016 WL 1188200, at *13 (N.D. Cal. Jan. 5, 2016) (two of three original class representatives current or former employees of class counsel).

[20] See H.R.985, Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, 115th Congress (2017-2018) (available at https://www.congress.gov/bill/115th-congress/house-bill/985) (last visited April 8, 2021).

[21] Brickman, Silica MDL and Asbestos at 37.

[22] See, e.g., McGee v. S-L Snacks Nat’l, 982 F.3d 700, 702 (9th Cir. 2020) (affirming district court’s dismissal for lack of standing of putative class action asserting claims based on popcorn manufacturer’s use of partially hydrogenated oils).

[23] Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 1063 (S.D. Fla. 2020), appeal dismissed, No. 20-11321-HH, 2020 WL 3864935 (11th Cir. May 11, 2020).

[24] See Lopez v. Apple, Inc., No. 19-CV-04577-JSW, — F.Supp.3d —-, 2021 WL 823122 (N.D. Cal. Feb. 10, 2021).

[25] Id. at *3.

[26] Id.

[27] Brickman, Silica MDL and Asbestos at 37-38.

[28] Gilkison, 406 F. App’x at 734.

[29] See Citizens of Humanity, LLC v. Hass, 46 Cal. App. 5th 589, 259 Cal. Rptr. 3d 380 (Ct. App. 2020).

[30] Id., 46 Cal. App. 5th 589, Cal. Rptr. 3d at 391.

[31] Navient Sols., LLC v. Law Offices of Jeffrey Lohman, No. 1:19-cv-00461, 2020 WL 1917837, at *1 (E.D. Va. Apr. 20, 2020).

[32] Id.

[33] Id.

[34] See Navient Sols., No. 1:19-cv-00461, ECF No. 395.

[35] Id., ECF No. 384 at pp. 38-39.

[36] Brickman, Silica MDL and Asbestos at 38.

[37] Drinker Biddle Retail Class Actions Team, Litigation Risks for Retailers, The New Wave of Class Actions in California, p. 27, Practical Law The Journal (Aug./Sept. 2017).

[38] The Eleventh’s Circuit recent trilogy of standing decisions in Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990 (11th Cir. 2020), Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917 (11th Cir. 2020), and Tsao v. Captiva MVP Rest. Partners, LLC, 986 F.3d 1332 (11th Cir. 2021), are representative of this apparent trend.

[39] Barber v. Bryant, 860 F.3d 345, 354 (5th Cir. 2017) (quotations and citations omitted).

[40] Stoops v. Wells Fargo Bank, N.A, 197 F. Supp. 3d 782, 801 (W.D. Pa. 2016).

[41] In re: Dollar Gen. Corp. Motor Oil Marketing and Sales Prac. Litig., 4:16-md-2709-GAF (W.D. Mo.), ECF No. 16.

[42] Id., Hr’g Tr. (July 14, 2016) at 14:8-23.

[43] Id., ECF No. 118.

[44] 136 S. Ct. at 1549.

[45] See, e.g., Clark v. Hershey Co., No. 18-CV-06113 WHA, 2019 WL 6050763, at *4 (N.D. Cal. Nov. 15, 2019) (granting summary judgment where claimant’s “decision to stop purchasing the product was due to learning from her attorneys that the product contained an artificial flavor. . . . there is no genuine dispute of fact that she did not rely on the label”); Weisberg v. Takeda Pharm. U.S.A., Inc., No. CV 18-784 PA (JCX), 2018 WL 4043171, at *7 (C.D. Cal. Aug. 21, 2018) (noting potential defenses regarding “reliance, causation, and injury” where “Plaintiff admits to having hired a lawyer after learning the cost of the 90-day supply – the purchase for which Plaintiff now seeks restitution and damages – six days before completing the purchase”).

[46] See Weisberg, 2018 WL 4043171, at *7.

[47] Bohn, 2013 WL 4517895, at *2.

[48] Id. at 3.

[49] English, 2016 WL 1188200, at *13.

[50] Id. at *13-14.

[51] Id. at *13, n.16.

[52] Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 280 (3d Cir. 2014) (quotations and citations omitted).

[53] See, e.g., Clark, 2019 WL 913603, at *2 (finding defendant’s argument “that plaintiffs do not have standing and lack a justiciable injury [ because] plaintiffs’ counsel recruited clients through a fishing website . . . which promises people that they can cash in on class settlements” to be “more appropriate for a summary judgment motion, after discovery on the way in which plaintiffs came to counsel” and, therefore, denying motion to dismiss without prejudice).

[54] See Guttmann v. Nissin Foods (U.S.A.) Co., Inc., No. C 15-00567 WHA, 2015 WL 4881073, at *2 (N.D. Cal. Aug. 14, 2015) (ordering parties to conduct limited discovery on defendant’s motion to dismiss asserting that plaintiff lacked standing because of prior “litigation campaign” and associated product knowledge).

[55] Clark, 2019 WL 913603, at *2.

[56] See, e.g., Physicians Healthsource, Inc. v. Janssen Pharm., Inc., No. CIV.A. 12-2132 FLW, 2014 WL 413534, at *4 (D.N.J. Feb. 4, 2014); see also Fed. R. Civ. P. 26(d)(3) (court may make orders regarding sequence of discovery “for the parties’ and witnesses’ convenience and in the interests of justice”); (f)(3) (discovery plan must address “whether discovery should be conducted in phases or be limited to or focused on particular issues”).

[57] Physicians Healthsource, Inc., 2014 WL 413534, at *4.

[58] See, e.g., Fed. R. Civ. P. 26(f)(3) (discovery plan must address “what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a)”).

[59] Wise v. S. Tier Express, Inc., No. 215CV01219APGPAL, 2017 WL 8219076, at *1 (D. Nev. July 10, 2017).

[60] See, e.g., CSX Transp., Inc. v. Peirce, No. 5:05-cv-00202-FPS-JES, ECF No. 1093 at 7 (N.D. W. Va. June 6, 2012); 2012 WL 12892846, at *2 (N.D. W. Va. Oct. 9, 2012).

[61] See id.; see also Morisky v. Pub. Serv. Elec. & Gas Co., 191 F.R.D. 419, 426 (D.N.J. 2000).

[62] See id.

[63] See CSX Transp., Inc., 2012 WL 12892734, at *2 (N.D.W. Va. Aug. 1, 2012).

[64] See CSX Transp., Inc., 2009 WL 1528190, at *3-7 (N.D. W. Va. May 29, 2009); 2012 WL 12892735, at *6 (N.D. W. Va. July 18, 2012); 2012 WL 12892846, at *1 (N.D.W. Va. Oct. 9, 2012); see also Navient Sols., LLC, 2020 WL 1917837, at *5; Drummond Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1337-38 (11th Cir. 2018).

[65] CSX Transp., Inc., 2009 WL 1528190, at *7.