Some federal courts have insisted that, to certify a class, the plaintiff moving for certification must establish that the defendant’s at-issue unlawful conduct injured every single putative class member — a virtually insuperable standard. In addition to being effectively impossible to satisfy, a leading class action scholar argues that the “classwide injury” criterion perpetuates fallacies that result in claims ideally suited for classwide adjudication being denied certification and, more often than not, the plaintiffs and prospective class members never obtaining relief. See Sergio J. Campos, Proof of Classwide Injury, 37 BROOK. J. INT’L L., 750 (forthcoming 2012) (draft available here).
Professor Campos begins his paper with a compelling example: Suppose an individual protected by a statute akin to Title VII is seeking employment and finds a good fit in a help-wanted ad, but the ad clearly states that those of her ethnic background “need not apply.” See Campos at 751-52. Should this individual be precluded from bringing her suit as a class action unless she is able to establish, at the class certification stage, that “‘each person for whom [she] will ultimately seek relief was a victim of the employer’s discriminatory policy’”? Campos at 752, quoting Int’l Bd. Of Teamsters v. United States, 431 U.S. 324, 336 (1977).
The Supreme Court’s reasoning in the Teamsters case excerpted by Professor Campos exemplifies the broad and troubling tendency whereby federal courts demand proof of classwide injury, effectively nullifying numerous archetype class actions, such as that set out in Professor Campos’ hypothetical. He equates the hypothetical’s insistence on classwide injury with the U.S. Supreme Court’s predominance analysis in Dukes v. Wal-Mart, requiring that plaintiffs, to establish the predominance of common questions of law or fact, identify common questions capable of “generat[ing] common answers.” See Campos at 755-56, quoting Dukes v. Wal-Mart, 131 S. Ct. 2541, 2551 (2011), quoting Nagareda, Richard A., Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 98-109 (2009).
As such, Professor Campos argues, the Supreme Court’s most recent and expansive articulation of class action jurisprudence, Dukes, is grounded in multiple fallacies, as are the numerous lower-court decisions that have required classwide injury. The first fallacy that Campos identifies is the “All at Once Fallacy,” whereby courts believe that, in order to ensure that common questions predominate, a class action must be capable of resolving all issues “in one fell swoop.” Campos at 756, 766. Yet by, for instance, bifurcating liability and damages determinations, the initial liability determination is capable of giving way to a damages phase in which determinations are made as to each class member who has suffered injury. Id. at 770. The commonly adopted bifurcation procedure thus exemplifies that class actions need not necessarily entail adjudication in “one fell swoop.”
The second fallacy embodied in the classwide injury approach is that it treats the class action as an “extraordinary remedy,” similar to a preliminary injunction, which effectively forces plaintiffs to prove that they will succeed on the merits. This runs contrary to the weight of extensive precedent strictly distinguishing the procedural, class certification phase from the post-certification merits determination. Id. at 781. Campos persuasively argues that imposing such an analysis at the class certification stage demonstrates a fundamental misunderstanding of the purpose of class actions, in particular the leveling effect whereby plaintiffs are able to “invest” in equal proportion to defendants; while defendants have the same incentive to invest in their defense whether facing an individual or class action, plaintiffs do not have parallel incentives. See id. at 783-84. Accordingly, “a merits determination prior to class certification defeats the purpose of the class action. The class action is designed to permit the plaintiffs to invest in the merits on equal terms with the defendant. Thus, a class action only works if it is available before a court decides the merits, not after.” Id. at 785.
The third and final fallacy identified in the article, “The Individualist Fallacy,” is the idea that, absent proof of classwide injury, a class action will necessarily spawn a plethora of individual trials. Id. at 785-86. At the heart of this fallacy is the erroneous assumption that such individual trials are inherently more accurate that aggregate determinations. Id. at 786. A related fallacy manifests in the skepticism, expressed in Dukes, for sampling and statistical methods, and the underlying assumption that individualized analysis, by its very nature, yields more accurate outcomes. Yet, as Campos suggests, all forms of reasoning entail aggregation and inference and, as such, the difference between an individual trial and a classwide adjudication is merely one of degree. See id. at 787-88. Moreover, rigorous sampling, survey, and data analysis methods will frequently produce analyses and conclusions that are more objectively accurate and reliable than the predominantly anecdotal alternative.
Professor Campos concludes that proof of classwide injury should not be a prerequisite to class certification, and that common questions, rather than common answers, should govern in determining whether certification is appropriate. Id. at 800-801. He goes on to reference the landmark Supreme Court case, Marbury v. Madison, stating, “it is . . . a principle of general application in U.S. law that ‘every right, when withheld, must have a remedy, and every injury its proper redress.’” Campos at 805, citing Marbury v. Madison, 5 U.S. 137, 163 (1803). Professor Campos’ implication is clear: should classwide injury be required of plaintiffs at the certification stage, many injuries will have no redress, since plaintiffs will not have an available, practical remedy. In reaching into the foundational motivations and original intent behind class actions, Professor Campos has crafted a broadly attractive proposal, one that transcends apparent ideological divisions.