Skip to Content
Menu Toggle
Properly Evaluating and Defending Class Action Complaints
subscribe to legal alerts

subscribe to our blogs

sign up now

Media Contacts

Charles B. Jimerson
Managing Partner

Jimerson Birr welcomes inquiries from the media and do our best to respond to deadlines. If you are interested in speaking to a Jimerson Birr lawyer or want general information about the firm, our practice areas, lawyers, publications, or events, please contact us via email or telephone for assistance at (904) 389-0050.

Properly Evaluating and Defending Class Action Complaints

July 21, 2021 Banking & Financial Services Industry Legal Blog

Reading Time: 9 minutes

Class action complaints are not a novel concept. Nevertheless, there appears to be an increase in class action complaints alleging violations of consumer protection laws such as Fair Debt Collection Practices Act (FDCPA), Florida’s Consumer Collections Practices Act (FCCPA), Fair Credit Reporting Act (FCRA), or Telephone Consumer Protection Act (TCPA). While consumer protection lawsuits already pose a risk to many businesses due to the consumer’s ability to recover actual damages, statutory damages and attorneys’ fees, adding the potential expose to a class of consumers significantly increases the risk.

Upon being served with a class action complaint, executives, general counsel and other business leaders should evaluate the allegations of the complaint, evaluate whether the allegations support class certification and evaluate the magnitude of the potential risk exposure. After these initial considerations, corporate counsel should work with competent outside counsel to develop an action plan for defending against the class action with an eye towards disposing of the lawsuit as swiftly as possible.

This article seeks to provide a high-level overview of class action complaints, considerations to be given and potential strategies for successfully defending the class action.

defending class action complaints consumer protection laws class action complaint certification of the class risk exposure assessment

Initial Considerations: Evaluating the Potential Risk Exposure

One of the initial considerations is to assess the potential risk exposure. In order to do so, business leaders must evaluate the allegations of the complaint and understand what makes up the class. According to Rule 1.220, Florida Rules of Civil Procedure, the class of members must be defined in the complaint. Presuming the class is properly defined, business leaders should perform an internal evaluation of the potential claims to determine the potential number of class members and the potential monetary exposure to the business.

In addition to an internal risk-exposure analysis, business leaders should review their insurance policies to determine whether there may be insurance coverage for the allegations in the complaint.

Properly Defending the Class Action Complaint

In properly defending a class action complaint, businesses must develop a defense strategy. The strategy will likely depend on the specific allegations of the complaint. While entire books are written on class actions, this article will generally discuss challenging the standing of a class representative and defending precertification discovery.

Class Actions in Florida State Court Versus Federal Court

Class actions filed in federal court are governed by Rule 23 of the Federal Rules of Civil Procedure. Class actions filed in Florida state courts are governed by Rule 1.220, Florida Rules of Civil Procedure. Florida’s Rule 1.220 is based upon Federal Rule 23, but differs in part to eliminate problems in the federal rule through court decisions. Fla. R. Civ. P. 1.220 (2019) (committee notes, 1980 Amendment).

While there are similarities between Rule 23 and Rule 1.220, there are also nuanced differences and defending class actions is different in federal court versus state court. This article will focus on defending class actions in Florida state courts.

Challenging Standing of the Class Representative

In order to maintain a class action, the putative class representative must have standing on his/her individual claim. If the putative class representative does not have standing on his/her individual claim, or if the putative class representative’s individual claim becomes moot, the putative class representative does not have standing to proceed on behalf of the class and the class action is subject to dismissal.[1] See, e.g., Ahearn v. Mayo Clinic, 180 So. 3d 165, 170 (Fla. 1st DCA 2015); Ferreiro v. Philadelphia Indem. Ins., 928 So. 2d 374, 376 (Fla. 3d DCA 2006) (“The issue of standing is a threshold inquiry which must be made at the outset of the case before addressing whether the case is properly maintainable as a class action.”). Therefore, the initial focus lies in the standing or mootness of the putative class representative’s individual claim.

For example, if the putative class representative’s underlying claim no longer exists (because the business has agreed to compensate the plaintiff in whole, or otherwise), then arguably such claims are moot and the putative class representative does not have standing to maintain the class action. There is much debate over whether a defendant can make a putative class representative whole after a class action lawsuit is filed in an effort to thwart the class action. This is commonly referred to as “picking off the plaintiff.”

Generally speaking, a majority of federal courts do not permit picking off the plaintiff. Some Florida cases have suggested the same. See Allstate Indem. Co. v. De La Rosa, 800 So. 2d 245, 246 (Fla. 3d DCA 2001) (“Although an insurer may recognize that it has made errors and may then try to correct them prior to class certification . . . it cannot simply try to ‘pick off’ the named class representative.”).

However, in Ahearn v. Mayo Clinic, the First District Court of Appeal disagreed. There, a plaintiff brought a class action complaint against the Mayo Clinic for allegedly charging uncovered patients more than the reasonable value of the services Id. at 168. After the lawsuit was filed but before class certification, the Mayo Clinic waived the outstanding balance, offered to pay for the plaintiff’s attorney’s fees and costs, and moved for summary judgment. The court held that the Mayo Clinic’s waiver of the plaintiff’s balance and offer to pay the plaintiff’s attorney’s fees and costs rendered the plaintiff’s claims moot.

The plaintiff argued that, even if his individual claims were mooted by the actions of the Mayo Clinic, he still had standing to assert the claim as a class representative. He cited to the federal cases that hold that a defendant cannot “pick off” a class representative. The First District conceded that federal courts do not allow defendants to defeat class claims by mooting the putative class representative’s individual claims without their agreement. The court nevertheless found that it was bound to follow the bright-line test set forth in Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011). Namely, if the putative class representative’s individual claims are extinguished before class certification, the putative class representative lacks standing to proceed on behalf of the putative class. If the class representative’s individual claims are extinguished after class certification, however, the party may still proceed on behalf of the class. Therefore, because a class had not yet been certified, the court granted summary judgment for Mayo Clinic.

Of course, a court still must determine whether the putative class representative’s individual claims were—or even if they can be—mooted. Although not entirely clear, Florida courts seem to permit a defendant to moot a putative class representative’s individual claim when the relief requested in the lawsuit can be unilaterally granted by the defendant. See Mayo Clinic, 180 So. 3d at 170 (affirming summary judgment for defendant where defendant waived the balance owed); Syna v. Shell Oil Co., 241 So. 2d 458, 459 (Fla. 3d DCA 1970) (judgment on the pleadings was proper where defendant waived the disputed late charges); Chinchilla v. Star Cas. Ins., 833 So. 2d 804, 805 (Fla. 3d DCA 2002) (affirming order denying class certification where defendant insurer reinstated policy, rendering plaintiff’s claim moot).

Similarly, the putative class representative’s acceptance of full payment renders its claim moot. See Ramon v. Aries Ins., 769 So. 2d 1053, 1055 (Fla. 3d DCA 2000) (affirming summary judgment for defendant where the insurer paid the putative class representative for billing errors); Taran v. Blue Cross Blue Shield of Fla., Inc., 685 So. 2d 1004, 1007 (Fla. 3d DCA 1997) (same); Graham v. State Farm Fire & Cas. Co., 813 So. 2d 273, 274 (Fla. 5th DCA 2002) (affirming dismissal of class claims where defendant insurer paid the disputed amount with interest).

While agreeing to compensate the putative class representative in full is one way to attempt to resolve the class action complaint without costly precertification discovery, businesses still must be prepared to engage in precertification discovery.

Precertification Discovery

Before a court certifies a class action, the parties are able to conduct discovery. Businesses need to be mindful of the cost of pre-certification discovery and should aggressively defend and try to limit the scope of precertification discovery. Pre-certification discovery is generally limited solely to matters that are relevant to class certification. Commonwealth Land Title Ins. v. Higgins, 975 So. 2d 1169, 1174–76 (Fla. 1st DCA 2008). That way, unnecessary discovery costs are avoided in the event the court ultimately determines that a class action was not appropriate or that the class must be more limited in scope.

However, Higgins provided that “there is not always a bright line between issues relating to class certification and issues relating to the merits of a claim or defense.” Id. Therefore, the trial court must balance the need to discover facts relevant to class certification issues with the burdens imposed by the discovery requested. To achieve this balance:

[t]he discovery permitted must be sufficiently broad in order that the plaintiffs have a realistic opportunity to meet these [class certification] requirements; at the same time, the defendant must be protected from discovery which is overly burdensome, irrelevant, or which invades privileged or confidential areas. Discovery is not to be used as a weapon, nor must discovery on the merits be completed precedent to class certification.

Higgins, 975 So. 2d at 1174-76.

It is incumbent upon businesses to ensure that “[d]iscovery is not . . . used as a weapon” and is limited to class certification issues. Businesses can do so by objecting to overbroad discovery and working with the plaintiff’s counsel to properly limit the scope of discovery.

Certification of the Class

Once pre-certification discovery is complete, the plaintiff will seek to certify the class action. In order to certify a class under Florida law, the requirements of Rule 1.220(a) and 1.220(b) must be met. While certification of a class is outside the scope of this article, generally, an evidentiary hearing is required for a court to determine whether the plaintiff has met its burden under Rule 1.220 to prove that the class is appropriate for certification. The decision of whether to certify a class is immediately appealable. Fla. R. Civ. P. 9.130(c)(vi) (2019).


Upon being served with a class action complaint, it is highly suggested that executives, general counsel and other business leaders perform a risk exposure assessment and consult with competent outside counsel to develop a plan for properly defending against the class action with an eye towards disposing of the lawsuit as swiftly as possible.

[1] “Standing” refers to a certain personal interest required of the plaintiff at the outset of the litigation, and “mootness” refers to when that personal interest does not continue throughout the litigation. Montgomery v. Dep’t of Health & Rehabilitative Servs., 468 So. 2d 1014, 1016 (Fla. 1st DCA 1985).

we’re here to help

Contact Us