UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TARA FARRELL, HENLY VELARDE, and 

DOUGLAS WELLS, individually and on 

behalf of all others similarly situated,

Plaintiffs,

v.

NEW MILLENNIUM CONCEPTS, LTD.,

Defendant.

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Case No. 3:22-cv-00728-M

DEFENDANT’S REPLY IN SUPPORT OF THE 

MOTION TO STRIKE NATIONWIDE CLASS ALLEGATIONS

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Defendant New Millennium Concepts, Ltd. (“NMCL”) files this reply in support of its 

motion to strike the nationwide class allegations (the “Motion”) asserted by Tara Farrell, Henly 

Velarde, and Douglas Wells (“Plaintiffs”).

ARGUMENT

I. Rule 12(f) has no bearing on this Rule 23(d) motion to strike Plaintiffs’ Nationwide 

Class allegations.

Plaintiffs’ entire response is predicated on a fundamental misapprehension of the basis for 

NMCL’s Motion. See Resp. at 2-4. This is not, as Plaintiffs would have it, a Rule 12(f) motion to 

strike—Rule 12(f) does not even appear in the Motion. Instead, NMCL expressly relied on Rule 

23(d) and related case law, which authorize courts to strike class allegations before discovery when

the failure to satisfy class requirements is apparent from the face of the pleadings. See Mot. at 2-

3; Elson v. Black, 56 F.4th 1002, 1006 (5th Cir. 2023).

The difference matters because, unlike under Rule 12(f), under Rule 23(d):

• The Motion is not “disfavored”—it is warranted under the rules and case law, FED. R.

CIV. P. 23(c)(1)(A), (d)(1)(D); Elson, 56 F.4th at 1006;

• Plaintiffs, not NMCL, bear the relevant burden to establish both standing and 

predominance, see Singh v. RadioShack Corp., 882 F.3d 137, 151 (5th Cir. 2018)

(standing); Elson, 56 F.4th at 1006 (predominance);

• There is no basis for denying the Motion as untimely filed, see Resp. at 2 n.1; and

• Fifth Circuit law clearly establishes the right to strike class allegations. See Elson, 56 

F.4th at 1006; Lee v. Samsung Elecs. Am., Inc., 2022 WL 4663878, at *2 (S.D. Tex. 

Sept. 21, 2022) (collecting cases striking class allegations on the pleadings).

These essential differences undermine Plaintiffs’ assertions throughout their response.

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II. Fifth Circuit standing principles foreclose Plaintiffs’ attempts to assert claims under 

the laws of states to which they have no connection.

The Court should begin with the standing issue because where, as here, the standing of the 

class representatives is called into question, standing “must be addressed first, prior to deciding 

class certification” issues. Flecha v. Medicredit, Inc., 946 F.3d 762, 769 (5th Cir. 2020). Plaintiffs’ 

lack of standing to assert the Nationwide Class claims is not a “masquerade.” Resp. at 15. NMCL’s 

standing argument is solidly founded on Plaintiffs’ allegations, Texas choice of law rules, and a 

wealth of federal case law.

Plaintiffs allege, and do not assert otherwise in their response, that all acts relevant to their 

claims occurred in California. See Compl. ¶¶ 8-10, 14(a)(1). They charge NMCL with 

“assum[ing]” that they have no individual standing to bring claims under non-California law, but 

Plaintiffs present no factual or legal basis for standing to assert their California-centered claims 

under the laws of any other state. See Resp. at 15 n.9.

Nor is it an “assumption” that other states’ laws will apply to those who purchased products 

in any of the other 50 jurisdictions. Id. As NMCL pointed out and Plaintiffs ignore, Texas choice 

of law rules look to the law of the state where the purchase occurred and the harm was suffered in 

determining warranty and unjust enrichment claims. See Mot. at 6 (citing cases). And Plaintiffs 

cite no authority to support their suggestion that putative class members could assert claims for 

non-California acts and injuries under California law. See Resp. at 15 n.9.

That leaves Plaintiffs back where they started, seeking some basis for standing to bring the 

Nationwide Class claims based on the laws of states where they do not reside, did not make a 

purchase, and suffered no harm. Plaintiffs’ claim that these facts do not implicate standing is 

contradicted by numerous federal cases holding otherwise. See, e.g., Mot. at 4-5 & n.1. As even 

the cases cited by Plaintiffs acknowledge, courts are deeply divided regarding the proper 

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framework for addressing challenges to the assertion of class claims under other states’ laws by 

named class plaintiffs who have no connection with those jurisdictions. See Langan v. Johnson & 

Johnson Consumer Cos., 897 F.3d 88, 93 (2d Cir. 2018) (acknowledging “considerable 

disagreement over this question in the district courts”). The courts have split regarding whether to 

resolve the issue under principles of standing (“Standing Cases”) or class certification 

(“Certification Cases”). Ignoring the existence and reasoning of the Standing Cases, Plaintiffs 

focus exclusively on the Certification Cases favorable to them, but those cases do not apply here.

See Resp. at 16-23.

The court of appeals cases cited by Plaintiffs have no bearing on this Motion because all 

of them but Asacol and Langan involve the application of a single body of law governing all class 

members.

1 See Resp. at 18-19. As such, none of those cases address the standing problems raised 

when plaintiffs assert class claims under the laws of multiple, unrelated jurisdictions. 

Asacol is a small step removed from the single-law cases. There, the named plaintiffs 

asserted claims under state antitrust laws that “parallel” the federal Sherman Act and thus were 

“materially the same.” In re Asacol Antitrust Litig., 907 F.3d 42, 49 (1st Cir. 2018). Recognizing 

that standing principles may bar class claims where the disconnect between a named plaintiff’s 

claims and the claims of putative class members is too great, the Asacol court went on to dismiss 

1 See Novella v. Westchester County, 661 F.3d 128, 149-50 (2d Cir. 2011) (ERISA); Boley v. 

Universal Health Servs., Inc., 36 F.4th 124, 133 (3d Cir. 2022) (same); Fallick v. Nationwide Mut. 

Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998) (same); Morrison v. YTB Int’l, Inc., 649 F.3d 533, 536 

(7th Cir. 2011) (Illinois Consumer Fraud Act); B.K. ex rel. Tinsley v. Snyder, 922 F.3d 957, 963

(9th Cir. 2019) (class limited to Arizona residents asserting federal law claims); Melendres v. 

Arpaio, 784 F.3d 1254, 1258 (9th Cir. 2015) (class limited to residents in a single county asserting 

federal law claims); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1268-69 (11th Cir. 2000) 

(class limited to Florida residents asserting federal law claims).

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class claims asserted under New York state law because the named plaintiffs’ claims did not invoke 

necessary elements of New York law. See id. at 49-50.

That leaves Langan and the other Certification Cases, but those cases are based on 

principles that contradict standing doctrines adopted by the Fifth Circuit. See Resp. at 19-23. Under 

Langan, “class action plaintiffs are not required to have individual standing to press any of the 

claims belonging to their unnamed class members.” Langan, 897 F.3d at 95. Under Fifth Circuit 

law and the Standing Cases, by contrast, the named plaintiff must establish standing “for each 

claim he seeks to press and for each form of relief that is sought.” Daves v. Dallas County, 22 

F.4th 522, 542 (5th Cir. 2022) (en banc) (internal quotation omitted).

This distinction drives the differences in outcome between the Certification and Standing 

Cases. See In re Sensipar (Cinacalcet Hydrochloride Tablets) Antitrust Litig., 2022 WL 736250, 

at *16-17 (D. Del. Mar. 11, 2022) (Standing Case noting the same distinction and refusing to 

follow Langan and Asacol). In the Certification Cases, the courts treat the problems arising from 

the assertion of out-of-state claims for others as a certification issue because in their view, the 

named plaintiffs’ standing to assert their own claims is all that standing analysis requires in the 

class context. See Langan, 897 F.3d at 94-95; Newberg on Class Actions § 2.6 (6th ed.). 

By contrast, the Standing Cases treat the same problem as one of standing because “the 

threshold question of standing is not satisfied by an assertion of standing on less than all claims.” 

In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 153 n.4 (E.D. Pa. 2009) (rejecting Langantype argument); see James v. City of Dallas, 254 F.3d 551, 563 (5th Cir. 2001), abrogated on other 

grounds by M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832 (5th Cir. 2012) (standing “must be 

addressed on a claim-by-claim basis”). For each claim, courts must assess the traditional elements 

of standing—injury, causation, and redressability—in relation to each other and to the claim 

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asserted. Wellbutrin, 260 F.R.D. at 152. If there is not a sufficient connection between the alleged 

injury and the wrongful conduct “that would implicate the laws of those states” in which a class is 

alleged, then named plaintiffs lack standing to assert those claims. See id. at 157; see also, e.g., In 

re Packaged Ice Antitrust Litig., 779 F. Supp. 2d 642, 657 (E.D. Mich. 2011); In re Terazosin 

Hydrochloride Antitrust Litig., 160 F. Supp. 2d 1365, 1371 (S.D. Fla. 2001).

This analysis is consistent with Fifth Circuit law and with the Supreme Court’s insistence 

that (1) “a plaintiff must demonstrate standing for each claim he seeks to press,” DaimlerChrysler 

Corp. v. Cuno, 547 U.S. 332, 352 (2006), and (2) the class action context “adds nothing to the 

question of standing.” Lewis v. Casey, 518 U.S. 343, 357 (1996) (internal quotation omitted). For 

that reason, courts continue to follow the Standing Cases years after Langan was decided. See, 

e.g., Sensipar, 2022 WL 736250, at *17 (expressly rejecting Langan’s analysis); In re Valsartan, 

Losartan, & Irbesartan Prods. Liability Litig., 2021 WL 100204, at *14 (D.N.J. Jan. 12, 2021);

Gordon v. Sig Sauer, Inc., 2020 WL 4783186, at *6 (S.D. Tex. Apr. 20, 2020); Ponzio v. MercedesBenz USA, LLC, 447 F. Supp. 3d 194, 222-23 (D.N.J. 2020). This Court should do the same.

Having put all their chips on Langan and the Certification Cases, Plaintiffs have no fallback

position. They do not argue that they satisfy standing requirements for the Nationwide Class

claims, nor can they because they have alleged no connection to the laws of any state other than 

California. Accordingly, their Nationwide Class claims should be stricken for lack of standing.

See, e.g., Gordon, 2020 WL 4783186, at *6; Mot. at 4-5 & n.1.

III. Fifth Circuit precedent supports striking the Nationwide Class allegations for lack of 

predominance based on the pleadings and before discovery is complete.

A. The Court has authority under Rule 23 and Fifth Circuit law to strike the 

Nationwide Class allegations now.

Plaintiffs rely on inapposite case law from out-of-circuit courts while ignoring controlling 

Fifth Circuit decisions in a vain attempt to postpone a judicial reckoning for their failure as a matter 

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of law to establish predominance. See Resp. at 5-9. As an initial matter and as discussed above, 

Plaintiffs cannot shirk their burden to defend their class allegations based on Rule 12(f) cases 

because the Motion was filed under Rule 23(d). See Resp. at 4-5. Similarly, Plaintiffs cannot 

escape “rigorous choice of law analysis” and resolution of the predominance issue merely because 

of the current stage of the proceedings. See Resp. at 5-9. The recent Fifth Circuit decision in Elson

answers each of the questions posed by Plaintiffs regarding the Motion’s timing.

Plaintiffs first contend that the predominance issue should be pushed back to the class 

certification stage, but Elson confirms that courts need not wait to assess the class requirements of 

Rule 23 where “it is apparent from the complaint that a class action cannot be maintained.” Elson, 

56 F.4th at 1006. This does not contradict Stukenberg (the only Fifth Circuit case relied on by 

Plaintiffs on this issue), which merely requires district courts to “look beyond the pleadings” for 

the class certification motion. See Stukenberg, 675 F.3d at 837. Thus, in Elson, the court affirmed 

the district court’s pre-certification decision to strike class allegations based on the pleadings alone

due to the plaintiffs’ failure to establish predominance. Elson, 56 F.4th at 1007.

Relatedly, Plaintiffs argue that a decision on predominance should await development of a 

full record through discovery, but once again, Elson says otherwise, noting that class allegations 

may be stricken “before discovery is complete.” Id. at 1006. That is exactly what happened in 

Elson—the Fifth Circuit affirmed the striking of class allegations even though only “limited 

discovery” had occurred. Id. at 1005.2

2 Plaintiffs’ plea to delay deciding the Motion in favor of an alleged need for discovery rings 

hollow given that: (1) NMCL’s arguments are based on the pleadings and raise legal issues 

requiring no factual development, (2) Plaintiffs fail to cite a single fact question raised by NMCL’s 

arguments or otherwise show why discovery is necessary to decide the Motion, and (3) over two 

years after filing this lawsuit and during eight months of the class certification schedule, Plaintiffs 

have yet to issue a single discovery request, even though depositions have been available since 

May 2022 (ECF 53).

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Finally, Plaintiffs get the burden backward, faulting NMCL for moving to strike based 

solely on the pleadings with “no evidence” or “rigorous analysis” to support the Motion. Resp. at 

7-8 (emphasis omitted). But Elson makes clear that “the party seeking certification . . . bears the 

burden of establishing” the requirements of Rule 23, regardless of the stage in the proceedings. 56 

F.4th at 1006-07 (affirming the striking of class allegations based on plaintiffs’ failure to meet 

their burden of showing predominance). Accordingly, the Elson court ruled against the plaintiffs 

in that case for failing to meet their burden “to assure the district court that such differences in 

state law would not predominate over issues individual to each plaintiff in the litigation” by 

providing “‘an extensive analysis of state law variations’ so that the district court could ‘consider

how those variations affect[ed] predominance.’” Id. at 1006 (quoting Cole v. Gen. Motors Corp., 

484 F.3d 717, 724 (5th Cir. 2007)).

Elson conclusively establishes that district courts possess ample authority to strike class 

allegations based on the pleadings before discovery, and it does not stand alone. Contrary to 

Plaintiffs’ assertion otherwise, district courts “have routinely applied [Rule 23(d)] to actions where

a party seeks to strike class allegations because plaintiffs have not met the requirements of Rule 

23.” Gordon v. Sig Sauer, Inc., 2019 WL 4572799, at *19 & n.11 (S.D. Tex. Sept. 20, 2019)

(internal quotation omitted) (collecting cases).

3 The Motion is ripe for decision.

3 See also, e.g., Lee v. Samsung Elecs. Am., Inc., 2022 WL 4663878, at *1-2, 5-7 (S.D. Tex. Sept. 

21, 2022) (rejecting argument that motion to strike class allegations was premature and striking 

nationwide class allegations for lack of predominance); Gordon v. Sig Sauer, Inc., 2020 WL 

4783186, at *5-6 (S.D. Tex. Apr. 20, 2020) (dismissing multistate class claims on standing 

grounds); Gordon, 2019 WL 4572799, at *21-22 (striking nationwide class allegations for lack of 

predominance); Reedy v. Phillips 66 Co., 2018 WL 1413087, at *12-13 (S.D. Tex. Mar. 20, 2018) 

(rejecting argument that motion to strike was premature and dismissing nationwide class 

allegations for failure to establish predominance). All of these cases were cited by NMCL, 

negating Plaintiffs’ claim that the Motion relies only on certification cases. See Resp. at 9.

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B. The Court should strike the Nationwide Class allegations because Plaintiffs 

failed to meet their burden to establish predominance.

The Court should apply Elson here because Plaintiffs’ pleadings and arguments fail as a 

matter of law to meet their burden to establish predominance. See Elson, 56 F.4th at 1006-07.

First, in the face of NMCL’s showing that variations in the state laws governing the 

Nationwide Class claims defeats predominance, Plaintiffs failed to meet their obligation “to 

provide an extensive analysis of state law variations.” Id. at 1006 (internal quotation omitted). 

They provided no survey or analysis of “the elements, requirements, and defenses associated with” 

their claims under the laws of the 51 jurisdictions implicated by the Nationwide Class allegations.

Lee, 2022 WL 4663878, at *6. Instead, they contented themselves with taking a few potshots at 

the sampling of variation issues raised by NMCL and asserting that courts have certified similar 

classes in the past. See Resp. at 10-15.4 That is not enough to carry their burden. See, e.g., Gordon, 

2019 WL 4572799, at *22 (rejecting argument that “courts regularly certify multistate and 

nationwide classes” where plaintiff failed to provide an extensive analysis of state-law variations).

The Court can and should grant the Motion on this basis alone. See Elson, 56 F.4th at 1007; Spence 

v. Glock, Ges.m.b.H., 227 F.3d 308, 316 (5th Cir. 2000); Lee, 2022 WL 4663878, at *7; Gordon, 

2019 WL 4572799, at *22.

Plaintiffs attempt to cover up their failure by pointing to the possibility that there is no true 

conflict of laws, see Resp. at 9, but that entirely ignores the cases cited by NMCL from numerous 

district courts and the Texas Supreme Court recognizing that: (1) the exact claims asserted by 

4 Additionally, neither of the two cases cited by Plaintiffs certified a nationwide, 51-jurisdiction 

class with all of the accompanying state-law conflicts. See McCumber v. Invitation Homes, Inc., 

2022 WL 1747855, at *4 (N.D. Tex. May 31, 2022) (in a pre-certification case, denying dismissal 

because plaintiffs sought ten subclasses, not “a nationwide or multistate class” with the associated 

“conflict between the various state laws”); In re Bisphenol-A (BPA) Polycarbonate Plastic Prods. 

Liability Litig., 2011 WL 13152798, at *2 (W.D. Mo. Jan. 7, 2011) (conditionally certifying

multiple subclasses of jurisdictions with similar laws).

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Plaintiffs would trigger the laws of all 51 jurisdictions under Texas choice of law rules, and 

(2) those laws vary sufficiently to defeat predominance. See Mot. at 6 (citing cases).

Second, Plaintiffs failed to show that common issues predominate over the undisputed 

variations in state law governing the Nationwide Class allegations. See Resp. at 10-14. Tellingly, 

Plaintiffs do not even attempt to show uniformity in the laws of the 51 jurisdictions governing their 

Nationwide Class claims, nor can they. See Mot. at 7. Instead, they argue that their allegations 

avoid all legal conflicts, but the mere fact that they pleaded their case in a certain way does not 

resolve the problem. That is because the intractable issues of state law variations will necessarily 

arise when Plaintiffs attempt to prove their allegations. For example, Plaintiffs:

• Assert that their warranty claims allege “strict reliance,” thereby defeating

predominance because “strict reliance” requires class members “to bring forth evidence 

of individualized reliance,” Cole, 484 F.3d at 727;

• Rely on allegations that the products do not perform as warranted to avoid conflicting 

laws regarding unmanifested defects and presumed merchantability, even though their 

allegations rely on tests of a different product, and any evidence that the products at 

issue are not defective will necessarily raise the conflicting laws on these issues;

• Claim no adequate remedy at law in direct conflict with their damages claims for breach 

of warranty, triggering the conflict in laws regarding unjust enrichment remedies; and

• Assert factual matters, such as direct benefit and deception by NMCL, that once

contradicted, will open the door to additional conflicts of law regarding unjust 

enrichment.

Additionally, Plaintiffs do not dispute that their unjust enrichment claims would fail under the laws 

of states that do not recognize that as an independent claim. Resp. at 14. This further necessitates 

an order limiting Plaintiffs’ allegations.

Finally, Plaintiffs request leave to amend their complaint should the Court decide to grant 

the Motion. Resp. at 15. But they provide no explanation for why the Court should grant leave or 

how amendment would cure the fundamental flaws in their claims. See Young v. U.S. Postal Serv. 

ex rel. Donahoe, 620 F. App’x 241, 245 & nn.7-8 (5th Cir. 2015) (the Fifth Circuit routinely 

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affirms denial of leave to amend where plaintiffs make a boilerplate request, do not identify new 

facts, and do not comply with local rules by attaching a proposed amendment to a motion). In any 

event, their request should be viewed in context with the targeted relief sought in the Motion, 

which would leave the subclass of California law claims intact.

CONCLUSION AND PRAYER

NMCL respectfully requests that the Court grant the Motion, strike the Nationwide Class 

allegations, and grant all other relief to which NMCL may be justly entitled.

Date: November 17, 2023

HAYNES AND BOONE, LLP

/s/ Ronald W. Breaux

Ronald W. Breaux, Esq. State Bar No. 02937200

ron.breaux@haynesboone.com

Benjamin G. Goodman, Esq.

State Bar No. 24091433

benjamin.goodman@haynesboone.com

Benjamin B. Breckler, Esq.

State Bar No. 24121922

benjamin.breckler@haynesboone.com

2801 N. Harwood St., Suite 2300

Dallas, TX 75201

Tel: (214) 651-5000

Fax: (214) 651-6940

NORRED LAW PLLC 

Warren V Norred

State Bar No. 24045094

warren@norredlaw.com

515 E Border Street

Arlington, TX 76010

Tel: 817-704-3984

Fax: 817-524-6686 

Attorneys for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on November 17, 2023 the foregoing document was served on all 

counsel of record via the Court’s electronic filing system.

/s/ Ronald W. Breaux

Ronald W. Breaux

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