[consumerpro]

Sophisticated defendants generally take two primary approaches to fighting class actions First, they will challenge the substance of the suit. For example, they might argue that they didn't violate the law or that nobody was hurt by their illegal conduct. Second, and equally important, they will try to convince the court that the case should not be a class action and that each member of the proposed class should have to hire his or her own lawyer and file his or her own lawsuit.

Many people assume that class action settle immediately, especially when there's no question that the law has been broken. This is true at times. In one of our more prominent cases, the defendant's attorney called up the day after receiving our complaint, admitting his client violated the law and offering to settle. Far more frequently, however, a defendant will fight the case for some time in hopes of either winning outright or wearing down the resolve of the class representatives and the lawyers.

A defendant who decides to fight will often file what is called a "motion to dismiss." Motions to dismiss ask the court to throw the case out immediately. These motions can often determine the success or failure of the whole case and tend to be very hard fought on both sides. The class representative usually has little active involvement at this stage. Instead, the lawyers present legal arguments to the court without any testimony from witnesses, including the class representatives.

Assuming the case survives any motion to dismiss, the defendant will then typically argue that the case should not be allowed to proceed as a class action, based on the rules for what constitutes a legitimate class action. The class action lawyers will present evidence that it is fair and efficient for the case to continue in the form of a class action, and the defendant will present whatever contrary evidence and arguments it can come up with. Ultimately, it is up to the court to decide if the case will proceed as a class action.