ABSTRACT: Some recent decisions have attempted to insert a novel requirement into the statutory test for certification of a class action. This element requires that the moving party establish at the certification motion “evidence of loss,” “evidence of harm,” “proof of compensable loss,” “evidence of core allegation,” etc. as a prerequisite to certification. Some of these cases have required that class actions deemed not “real,” “real substantial (non de minimis),” or “important” be screened out at certification. This paper argues that “meaningful screening” at certification cannot be stretched beyond the correct application of the governing statutory certification test to the facts before the court. To the extent that any screening of the viability of the claim is involved, it must happen within the confines of the cause of action analysis where evidence is inadmissible. An analysis or screening that goes beyond the correct application of the pleadings test runs afoul of established jurisprudence and statutory provisions that do not require evidence of loss for the pleaded cause of action and do not permit a merits analysis at the certification stage. The “screening” of not “real,” “real substantial (non de minimus),” or “important” claims further imports a merits-based and highly subjective probe of the claim into certification. This approach will yield arbitrary and haphazard results contrary to the scheme and the objectives of class action regimes. These newly fashioned threshold requirements risk disturbing well-established law and introducing uncertainty into this critically important area.
Mohsen Seddigh (Sun,) studied this question.