Microsoft To Get Fees From Plaintiffs Who Dropped Class Claims
How many times have you said "I told you so" to an adversary who refused to listen to you when you explained that his case could not possibly proceed as a class action? Sometimes my adversaries listen and drop their class claims. Invariably, however, that is only after my client has spent large sums of money in class discovery and defending against the class certification arguments.
Recently I came across Johnson v. Microsoft Corp., Case No. C06-900RAJ, slip op. (W.D. Wash. Jan. 15, 2010), in which the plaintiffs waited until the class certification motion was fully briefed and noticed for hearing before agreeing to drop most -- but not all -- of their class allegations from the complaint. I waited too long to inform you of the opinion, however. The folks at the Class Action Defense Blog described the case yesterday and included a downloadable pdf.
Nevertheless, I highlight it here as encouragement for you defense counsel who want to file fee petitions in such situations:
If Plaintiffs had withdrawn their class-certification motion before Microsoft had prepared its Opposition, that could be a "no harm, no foul" situation. But here, the "harm" was irreversibly inflicted when Plaintiff's' motion required Microsoft to prepare a defense, and it is not mollified by Plaintiffs' willingness to eliminate some of the additions to the Proposed TACC. Under these circumstances, the court finds that it is appropriate for Plaintiffs to reimburse Microsoft for costs related to defending against the class certification motion.
Slip op. at 5.
Microsoft's fee petition is due February 12, and the issue should be fully briefed by March 5. I'll keep an eye on it and let you know what happens.
