Which Comes First: Class Certification or Jurisdictional Analysis
Volume 88, No. 2, Winter 2016
By Brett M. Feldman, J.D. Candidate, Temple University Beasley School of Law, 2016 [PDF]

The shift in wealth and economic power from individuals to businesses over the past century created an asymmetry in the American legal system. To counter the considerable legal heft of large corporate entities, plaintiffs—and plaintiffs’ counsel—rely on class (or collective) actions. A class action is a procedural mechanism that permits a representative plaintiff to bring suit on behalf of similarly harmed individuals. This, in turn, creates sufficient bargaining power to grab the attention of deep-pocketed and powerful foes. Examples of this procedural mechanism can be found in areas of the law as diverse as mass tort litigation, shareholder derivative lawsuits, and employment discrimination disputes. Even though class actions are both time-consuming and expensive, they have become an important feature of the American legal landscape.

Although governed by Federal Rule of Civil Procedure 23 (Rule 23), the Class Action Fairness Act of 2005, and decades of case law, one aspect of class action law remains unsettled. In Amchem Products v. Windsor and Ortiz v. Fibreboard Corp., the Supreme Court held that, where “logically antecedent,” courts may resolve class certification before determining whether the plaintiffs possess Article III standing. In the wake of these holdings, plaintiffs have sought, with some success, to persuade trial courts to interpret this language broadly in order to permit certification proceedings to commence before establishing the court’s jurisdiction. Some courts have agreed with these plaintiffs, holding that Amchem and Ortiz created a broad exception to established precedent, while other courts have recognized the dual cases as creating a very narrow exception to the order of analyses.

This Comment argues against the adoption of the “broad exception” interpretation of Amchem and Ortiz and in favor of the “narrow interpretation” of the “logically antecedent” exception. This assertion rests on several grounds, namely that a narrow construction (1) conforms closely to long standing interpretations of Article III, (2) advances the purposes of the Federal Rules of Civil Procedure (the Rules) as enunciated in Federal Rule of Civil Procedure 1 (Rule 1), and (3) hews more closely to the language and procedural history of Amchem and Ortiz.