Class actions are designed to aggregate claims and create efficiencies, but for when CPG brands are defendants, they often present sprawling exposure and create immense settlement pressure long before the merits are even tested. In recent years, defendants have increasingly turned to an early procedural weapon to limit exposure: the motion to strike nationwide class allegations. By challenging such claims at the pleading stage, defendants can narrow class allegations and reduce their overall exposure before discovery begins. Although the viability of these motions can vary by judge and jurisdiction, courts have the authority to dismiss deficient class allegations early when they are facially untenable.

This strategy allows defendants to “strike back,” and disrupt the other side’s leverage. When successful, these motions can dramatically drive down the case value and help facilitate more manageable early settlement discussions. Even where such motions are unsuccessful, they can be useful in sensitizing the court to key defects, which can help steer the case in a favorable direction.

The Fundamental Obstacle: State Law Variations

It is generally well-accepted that district courts may strike class allegations before discovery is complete when it is apparent from the face of the pleadings that the proposed class cannot be certified under Federal Rule of Civil Procedure 23.[i] The most fertile ground for striking class allegations at the pleading stage arises when plaintiffs seek to certify a nationwide class under state consumer protection, tort and/or warranty laws. In the typical case, one or a small number of plaintiffs will invoke the laws of either their or the defendant’s home states and attempt to assert claims under those laws on behalf of proposed classes of consumers nationwide.

Under traditional choice-of-law principles, the applicable law is generally the one with the most significant relationship to the claims at issue, which is usually the law of the state where the consumer bought the product and/or where the alleged injury occurred. For example, in its landmark decision in In re Bridgestone/Firestone,[ii] the Seventh Circuit held that material differences across the laws of all 50 states prevents courts from applying a single state’s law to the claims of class members nationwide.[iii] The Ninth Circuit reached the same conclusion in Mazza v. American Honda Motor Co.,[iv] holding that each class member’s claim should be governed by the laws of the jurisdiction in which the transaction took place.[v]

Thus, in general, principles of federalism and conflicts of laws will prevent courts from applying a single state’s laws to a class of nationwide claimants.  Although both decisions were reached in connection with a motion for class certification, courts have reached the same conclusions pre-discovery on motions to strike class allegations, concluding that applying the laws of 50 states will present manageability and predominance issues because those laws have differences that will make class-wide adjudication impossible. For example, in Pilgrim v. Universal Health Card, LLC,[vi] the Sixth Circuit held that applying the laws of all 50 states to the proposed nationwide class action would make class certification unmanageable and defeat predominance.[vii]  And, in Elson v. Black,[viii] the Fifth Circuit struck nationwide class allegations where the plaintiffs attempted to apply the laws of seven states to consumers nationwide without meaningfully addressing how the variations in those states’ laws would affect predominance.[ix]

CPG brand putative class action defendants have invoked this precedent successfully to strip complaints of their national class allegations at the pleading stage. For example, General Mills, Inc. successfully struck nationwide slack-fill class claims associated with its Annie’s Frosted Oat Flakes where a California plaintiff sought to assert violations of California’s consumer protection statutes on behalf of consumers residing in all 50 states.[x] Relying on Pilgrim and Mazza, Procter & Gamble Co. likewise struck nationwide class allegations related to its over-the-counter digestive care product Align, because, the court held, California’s consumer protection statutes “cannot be constitutionally applied to the claims of class members who neither reside in California nor purchased the product there.”[xi] The Rikos court also struck the nationwide breach-of-express-warranty class claims because material variations among the express-warranty laws of all 50 states would preclude application of California law nationally.[xii] The court rejected the plaintiff’s suggestion that discovery was needed to assess the viability of the national class allegations, emphasizing that “[n]o discovery will change the simple fact that different states have different elements for claims of breach of express warranty.”[xiii]

Together, Pilgrim and Elson, along with In re Bridgestone/Firestone and Mazza, provide CPG brand defendants with a clear roadmap for defeating nationwide class allegations either seeking to apply the laws of different jurisdictions or a single state’s body of law nationally pre-discovery.

Practical Considerations for Defendants

A few simple strategies that CPG brand defendants can use to help their cause on these motions include:

• File an appendix mapping conflicts among the relevant laws of all 50 states. Courts, like the Fifth Circuit in Elson, have faulted plaintiffs who fail to grapple with these differences.[xiv]
• “Show, don’t tell.” Instead of merely attaching a survey of state laws, defendants should provide real examples in the motion that illustrate some of the conflicts.  Illustrating, when possible, how state-law variations would apply to each plaintiff’s claims and produce different results can be particularly compelling.
• Emphasize that no amount discovery can cure these legal conflicts. This places the burden on plaintiffs to explain what discovery could possibly change.[xv]

Conclusion

Where plaintiffs bring nationwide class claims based on one state’s or many different states’ laws, the defects are often evident on the face of the complaint and present a pure legal question that will not be impacted by discovery. CPG brand defendants who seize the opportunity to “strike back” can dramatically narrow exposure and shift settlement leverage in their favor.

For additional analysis, we have published a longer-form piece on our firm’s blog here. We will also be supporting and attending the Consumer Brands CPG Legal Forum in 2026 to explore strategies for these and other legal issues.

[i] See, e.g., Elson v. Black, 56 F.4th 1002, 1006 (5th Cir. 2023); Donelson v. Ameriprise Fin. Servs., Inc., 999 F.3d 1080, 1092 (8th Cir. 2021); Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011); Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 939-40 (9th Cir. 2009); Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309 (11th Cir. 2008).

[ii] 288 F.3d 1012 (7th Cir. 2002).

[iii] Id. at 1016-18.

[iv] 666 F.3d 581 (9th Cir. 2012).

[v] Id. at 594.

[vi] 660 F.3d 943 (6th Cir. 2011).

[vii] Id. at 948.

[viii] 56 F.4th 1002 (5th Cir. 2023).

[ix] Id.

[x] Jackson v. Gen. Mills, Inc., 2019 WL 4599845, at *3-4 (S.D. Cal. Sept. 23, 2019) (striking nationwide class allegations based on Mazza because the “claims arise solely under California’s consumer protection laws, and these laws simply do not apply to transactions outside California involving non-California consumers”).

[xi] Rikos v. Procter & Gamble Co., 2012 WL 641946, at *4 (S.D. Ohio Feb. 28, 2012).

[xii] See id. at *5-6.

[xiii] Id. at *6.

[xiv] See 56 F.4th at 1006-07.

[xv] See Pilgrim, 660 F.3d at 949 (“The problem for the plaintiffs is that we cannot see how discovery or for that matter more time would have helped them.  To this day, they do not explain what type of discovery or what type of factual development would alter the central defect in this class claim.  The key reality remains: Their claims are governed by different States’ laws, a largely legal determination, and no proffered or potential factual development offers any hope of altering that conclusion, one that generally will preclude class certification.”).