1996 Advisory Comm. Draft, Note to Proposed Fed.R.Civ.Proc. 23(b)(3).

Although the Linderdecision clearly eliminates an evaluation of the merits of the lawsuit as a class action criterion to be considered, it does not preclude a court from scrutinizing a proposed class cause of action to determine whether, assuming its merit, it is suitable for resolution on a classwide basis.

An approach requesting the court to engage in an analysis of the superiority of the class action as the best vehicle for resolution should not be overlooked. While not directly addressing the merits, such an argument may result in requiring the courts to address each of the criteria of Federal Rule 23 with heightened scrutiny before rendering any decision on the certification of a class action.


The opportunities for those opposing class certification to raise cogent, reasonable arguments opposing such certification still exist. Lindermerely requires the trial court to conduct a thorough analysis of each of the criteria of the statute governing class certification.

Rather than viewing the Linderdecision as a “defeat” for the class action defense bar, it should be viewed and used to require a court to engage in an analysis of each criterion to determine whether a proposed class cause of action, assuming its merit, is suitable for resolution on a classwide basis.


FN1 Kennedy v. Superior Court, 43 Cal. App. 4th 799 (1996) (court rejected certification of class consisting of persons exposed to latex gloves); Clausing v. San Francisco Unified School Dist., 221 Cal. App. 3d 1224 (1990); Valentino v. Carter-Wallace Inc., 97 F.3d 1127 (9th Cir. 1996) (court rejected conditional certification of class consisting of persons who used drug Felbatol); In re Northern Dist. of California, Dalkon Shield IUD Prods. Liab. Litig., 693 F.2d 847 (9th Cir. 1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983).

FN2As the Supreme Court stated:

We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of that suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule by allowing a representative plaintiff to secure the benefits of a class action without first satisfying the requirements for it. He is thereby allowed to obtain a determination on the merits of the claims advanced on behalf of the class without any assurance that a class action may be maintained.�Additionally, we might note that a preliminary determination of the merits may result in substantial prejudice to a defendant, since of necessity it is not accompanied by the traditional rules and procedures applicable to civil trials. The court’s tentative findings, made in absence of established safeguards, may color the subsequent proceedings and place an unfair burden on the defendant.

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). See also Miller v. Mackey International Inc., 452 F.2d 424 (5th Cir. 1971) (holding that a trial court could not consider the merits of a case when ruling on class certification).

FN3 SeeCalifornia Code of Civil Procedure � 382.

FN4Alabama, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Maryland, Missouri, Nevada, New Jersey, North Dakota, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and Washington.

FN5Alaska, Colorado, Hawaii, Kansas, Kentucky, Maine, Massachusetts, Mississippi, Montana, Nebraska, New Mexico, Oregon, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin and Wyoming. Michigan and Minnesota have considered only whether a motion on the merits may be ruled on prior to ruling on class certification.

FN6Barlett H. McGuire, “The Death Knoll for Eisen: Why the Class Action Analysis Should Include an Assessment of the Merits,” 168 F.R.D. 366, 380-81 (1996).

Daniel J. Herling is a partner in the San Francisco office of Duane, Morris & Heckscher. Telephone: (415) 371-2200. Mr. Herling acknowledges the assistance of Julie Anderson, Scott Esterbrook and Katharine McCormick in the research for and preparation of this article and the appendix of state-by-state case law associated with this article.