Whether a district court must make definitive findings that Rule 23's class-certification requirements are satisfied, even when those findings require resolving issues that overlap with the merits

The other side of the split

Decisions the acknowledging court(s) named as the opposing or joined side, quoted in the acknowledging opinion's own words.

• DiscussedGariety368 F.3d 366

  “The Fourth Circuit in Gariety considered and fully answered the concern expressed in Eisen (with respect to a merits inquiry on an issue unrelated to a Rule 23 requirement) that a merits inquiry on an issue that is related to the merits would prejudice the defendant.” — Miles v. Merrill Lynch & Co., acknowledging the split

• Joined by · 1st Cir.In re PolyMedica Corp. Securities Litigation432 F.3d 1
• Joined by · 1st Cir.Waste Management Holdings, Inc. v. Mowbray208 F.3d 288

  “Mowbray, 208 F.3d 288 (1st Cir.2000)), the First Circuit invoked Eisen for the limited proposition that the Supreme Court “prohibits a district court from inquiring into whether a plaintiff will prevail on the merits at class certification,” id.” — Miles v. Merrill Lynch & Co., acknowledging the split

• DiscussedCaridad191 F.3d 292

  “In 2003, the Civil Rules Advisory Committee made several changes to Rule 23, but neither the amended Rule nor the Committee’s commentary explicitly resolves the split of authority between our Circuit’s ambiguous Caridad/Visa Check/Heerwagen approach to determining Rule 23 requirements and the predominant view of the other circuits that class certification requires findings as to such requirements, even if such findings involve consideration of merits issues.” — Miles v. Merrill Lynch & Co., acknowledging the split

• DiscussedVisa Check280 F.3d 135

  “In 2003, the Civil Rules Advisory Committee made several changes to Rule 23, but neither the amended Rule nor the Committee’s commentary explicitly resolves the split of authority between our Circuit’s ambiguous Caridad/Visa Check/Heerwagen approach to determining Rule 23 requirements and the predominant view of the other circuits that class certification requires findings as to such requirements, even if such findings involve consideration of merits issues.” — Miles v. Merrill Lynch & Co., acknowledging the split

• DiscussedParker331 F.3d 21

  “Obviously, we can no longer continue to advise district courts that “some showing,” Caridad, 191 F.3d at 292 , of meeting Rule 23 requirements will suffice and that “findings” are required, see Parker, 331 F.3d at 21 , or that an expert’s report will sustain a plaintiffs burden so long as it is not “fatally flawed,” see Visa Cheek, 280 F.3d at 135 , and that the plaintiff must prove Rule 23 requirements, see Heerwagen, 435 F.3d at 233 .” — Miles v. Merrill Lynch & Co., acknowledging the split

• DiscussedHeerwagen435 F.3d 233

  “In 2003, the Civil Rules Advisory Committee made several changes to Rule 23, but neither the amended Rule nor the Committee’s commentary explicitly resolves the split of authority between our Circuit’s ambiguous Caridad/Visa Check/Heerwagen approach to determining Rule 23 requirements and the predominant view of the other circuits that class certification requires findings as to such requirements, even if such findings involve consideration of merits issues.” — Miles v. Merrill Lynch & Co., acknowledging the split

What the split turns on

Anchor precedents:

Eisen

Doctrines & tests:

fraud-on-the-market presumption of reliance