“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
From consumer product companies to banks,4 universities5 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’
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
In the early 2000s, legal scholar Lester Brickman8
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
(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
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
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
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
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,
25. Id. at *3.
27. Brickman, Silica MDL and Asbestos at
28. Gilkison, 406 F. App’x at
29. See Citizens of Humanity, LLC v.
Hass, 46 Cal. App. 5th 589, 259 Cal. Rptr. 3d 380 (Ct. App.
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).
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
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.
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
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
47. Bohn, 2013 WL 4517895, at *2.
48. Id. at 3.
49. English, 2016 WL 1188200, at
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
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
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
59. Wise v. S. Tier Express, Inc., No.
215CV01219APGPAL, 2017 WL 8219076, at *1 (D. Nev. July 10,
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,
61. See id.; see also Morisky v.
Pub. Serv. Elec. & Gas Co., 191 F.R.D. 419, 426 (D.N.J.
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,
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