Class Action Certification: 'meaningful Screening Device' and the 'compensable Loss' Theory

• Author: Mohsen Seddigh
• Pages: 193-211

193

Class Action Certif‌ication: “Meaningful Screening

Device” and the “Compensable Loss” Theory

Mohsen Seddigh

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 certif‌ica-

tion 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 hap-

pen within the conf‌ines of the cause of action analysis where evidence is

inadmissible. An analysis or screening that goes beyond the correct appli-

cation 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 dis-

turbing well-established law and introducing uncertainty into this critic-

ally important area.