Some courts appear to have begun to revise the standard
for granting class certification, including in antitrust cases. The
new standard, if there is one, may empower courts to find facts
relevant to the merits in a way that historically they have not
been permitted to do. If courts are ratcheting up the standard at
class certification by forcing plaintiffs to make a showing on the
merits, then it seems an unfortunate development for various
reasons. First, the rationale for the change is unsubstantiated and
implausible. Neither theory nor evidence supports the claim that
corporations settle meritless class actions with any frequency,
particularly in antitrust. Second, a heightened certification
standard fits poorly in the existing procedural framework,
potentially forcing a decision on the merits prematurely and
possibly violating the Seventh Amendment. Third, such a standard
may distort other aspects of the class certification decision. In
particular, it may encourage courts to put undue emphasis on
methods of proving class-wide injury, or "common impact," at class
certification. Fourth, the new standard would involve a back-door
change to the procedural rules. Rule 23 does not contemplate that
judges will rule on merits issues at class certification. If some
modification of the class certification process is in order - if a
procedural decision is going to morph into a merits determination -
courts should follow the right method of effecting that change,
including careful deliberation, empirical study, and a formal
amendment to the Federal Rules of Civil Procedure.
View the full article at: http://ssrn.com/abstract=1542143