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Scrutinizing class action claims at the certification stage

Plaintiffs' attorneys often claim that the Supreme Court case of Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), which prohibits courts from conducting a preliminary inquiry into the merits of the case for purposes of determining whether the defendant should bear the costs of notice, also prohibits courts from giving any scrutiny to class allegations at the class certification stage. Not so. As Szabo v. Bridgeport Machines, 249 F.3d 672 (7th Cir. 2001) (Easterbrook, J.), notes,

if some of the considerations under
Rule 23(b)(3), such as "the difficulties likely
to be encountered in the management of a class
action", overlap the merits--as they do in this
case, where it is not possible to evaluate
impending difficulties without making a choice of
law, and not possible to make a sound choice of
law without deciding whether Bridgeport
authorized or ratified the dealers'
representations--then the judge must make a
preliminary inquiry into the merits. ...

But nothing in the 1966 amendments to Rule 23, or
the opinion in Eisen, prevents the district court
from looking beneath the surface of a complaint
to conduct the inquiries identified in that rule
and exercise the discretion it confers.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.