There is an abiding myth among practitioners in the plaintiffs’ class action bar—regularly rejected but repeated by rote—that affirmative defenses are irrelevant to class certification. For example, in Rodney v. Northwestern Airlines, 146 Fed. Appx. 783, 786-87 (6th Cir. 2005), rejecting assertion that “a court should assess only the plaintiff’s proffered method of proving his case-in-chief” in deciding class certification, and in Gunnells v. Healthplan Services, 348 F.3d 417, 438 (4th Cir. 2003), which denies plaintiffs’ contention that “numerous courts” have “rejected the notion that the assertion of affirmative defenses renders class certification inappropriate.”
Two lines of authority, one obsolete and the other misunderstood, are the apparent sources of this misguided assertion. Several courts previously subscribed to the view that affirmative defenses entail merits questions which should not be considered on class certification. In International Woodworkers of America, AFL-CIO, CLC v. Chesapeake Bay Plywood, (4th Cir. 1981), “courts passing upon motions for class certification have generally refused to consider the impact of such affirmative defenses as the statute of limitations on the potential representative’s case;” in In re Arakis Energy Securities Litigation, No. 95-CV-3431, 1999 WL 1021819, at *2 n. 1 (E.D.N.Y. Apr. 27, 1999), refusing to consider statute of limitations defense “because arguments going to the merits of plaintiffs’ claims are not suitable for resolution on a motion for class certification;” and in Dameron v. Sinai Hospital of Baltimore, (D. Md. 1984), refusing to “cloud the issue of adequate representation” with affirmative defenses, because the named plaintiff “need not show a probability of individual success on the merits.”
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