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

AuthorMohsen Seddigh
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.

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