Review of the Merits in Class Action Certification

In Eisen v. Carlisle & Jacquelin, the Supreme Court declared that federal courts may not conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. This proscription - sometimes known as the Eisen rule - has become a pillar of class action practice, both under Federal Rule of Civil Procedure 23 and under state-court class action procedures. The rule can have a crucial influence on whether a case is certified as a class action - and, given the importance of certification, on the success or failure of the litigation. This Article analyzes the proper scope of a court's inquiry into merits issues when ruling on motions to certify a class. Part I of the Article distinguishes three approaches to this question: strong-form rules that prohibit inquiries into the merits and require the court to accept as true the well-pleaded allegations in the complaint; weak-form rules that permit reasonable inquiries into the merits as relevant to certification and usually place burdens of production and persuasion on the plaintiff; and super-weak rules which permit or require the court to investigate the class's chances of success in the litigation and place burdens of production and persuasion on the plaintiff. Parts II-VI compare these rules with respect to the values of fidelity to law, accuracy in adjudication, fairness in judgments, fairness in settlements, and judicial economy. Part VII argues that weak-form rules are superior to the alternative approaches.