When courts are faced with determining whether the requirements to certify a class set forth in Rule 23 of the Federal Rules of Civil Procedure have been met—and, in particular, whether common issues predominate over individual ones—they often must address issues that go to the merits of the case. Accordingly, to prevail at the class certification stage, the named plaintiffs frequently must present evidence that goes to the merits of their claims in order to show that common issues predominate. That obligation is not new.

In Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2551 (2011), the Supreme Court observed that “[f]requently that ‘rigorous analysis’ [of whether all class certification requirements are satisfied] will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.” Two years later, the Supreme Court reiterated the appropriateness of addressing merits issues (when necessary) at the class certification stage in Amgen v. Connecticut Retirement Plans & Trust Funds, 133 S. Ct. 1184, 1195 (2013), stating that “[m]erits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”

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