Turning a Little Win Into a Big Win

OK, so you're the defendant and you've just won summary judgment in a consumer case.  What do you do next?  Why not move for after-the-fact certification of a non-opt-out class of all similarly situated consumers, and imposition of summary judgment on all of them?  What could possibly go wrong with that?

There's no rule that says a defendant can't seek class treatment.  Unfortunately, there's a fair amount of law now saying that class certification comes before merits determinations, not after.  There's absolutely no authority that allows a defendant to impose summary judgment on a post-hoc class of plaintiffs.  Which is why, while this was a nice try by Lyon Management Group, Inc. down in California's Fourth Appellate District, it looks like this is a no go.

Thanks to Wage Law (which blogs on wage and hour issues from the employee perspective) for the pick-up.