In Sullivan v. DB Investments, the 3rd Circuit considered the issue of Article III standing only as it related to jurisdiction, not with regard to certification. Regardless of the fact that some members of the class were found to have no standing, the court certified the settlement anyway.

A decision that came out of the 9th Circuit in Mazza v. American Honda Motor Co. on Jan. 12 looks at the issue of Article III standing through the lens of certification and cites the definitive statement of the 2nd Circuit case Denney v. Deutsche Bank AG, saying “[N]o class may be certified that contains members lacking Article III standing.”

“There is a dividing line now between courts that are saying Article III standing only deals with jurisdiction issues [and] courts that say it deals with jurisdiction issues, but it’s also part of the certification analysis,” says Dan Herling, a partner at Keller and Heckman. In Sullivan, “the 3rd Circuit analysis just didn’t give any credence to an argument that it should have dealt with certification.”