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EFTA01295633 | EFTA01295687 Page 54 785 F.3d 895, *; 2015 U.S. App. LEXIS 7739, **; 126 Fair Empl. Prac. Cas. (BNA) 1793; 99 Empl. Prac. Dec. (CCH) P45,306 "evidentiary proof," Comcast, 133 S. Ct. at 1432, and "affirmatively demonstrate [their] compliance with the Rule," Wal-Mart, 131 S. Ct. at 2551. "[S]ome evidence" is not enough. In re Initial Pub. Offerings ["IPO") Sec. Litig., 471 F.3d 24, 33 (2d Cir. 2006). Before certifying a class action, courts will require a plaintiff to establish by a preponderance of the evidence that the action complies with each part of Rule 23. See In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 117 (2d Cir. 2013); Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012); Ala. Elec. Pension Fund v. Flowserve Corp., 572 F.3d 221, 228 (5th Cir. 2008), abrogated in other respects by Halliburton, 134 S. Ct. 2398, 189 L. Ed. 2d 339; accord In re Titanium Dioxide Antitrust Litig., 284 F.R.D. 328, 336 (D. Md. 2012) r . 91] ; In re Mills Corp. Sec. Litig., 257 F.R.D. 101, 104 (E.D. Va. 2009); In re SafetyKleen Corp. Bondholders Litig., No. 3:00-1145-17, 2004 U.S. Dist. LEXIS 31099, 2004 WL 3115870, at *2 (D.S.C. Nov. 1, 2004); see also Anthony F. Fata, Doomsday Delayed: How the Court's Party-Neutral Clarification of Class Certification Standards [*932] in Wal-Mart v. Dukes Actually Helps Plaintiffs, 62 DePaul L. Rev. 675, 681 (2013) (reading Wal-Mart to apply a preponderance-of-the-evidence standard). 2. "[T]he factors spelled out in Rule 23 must be addressed through findings, even if they overlap with issues on the merits." Gariety, 368 F.3d at 366; accord In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 249, 406 U.S. App. D.C. 371 (D.C. Cir. 2013) (recognizing that certification will sometimes "resemble[] an appraisal on the merits"). Obviously, "[a] court may not say something like 'let's resolve the merits first and worry about the class later . . . or 'I'm not going to certify a class unless I think that the plaintiffs will prevail."' Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 677 (7th Cir. 2001), cited with approval in Wal-Mart, 131 S. Ct. at 2552. But overlap "cannot be helped," as certification "generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." Wal-Mart, 131 S. Ct. at 2551-52. Compare Brown I, 576 F.3d at 156 (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974), and refusing to inquire into Plaintiffs' statistics because it would be an impermissibly "in-depth assessment of the merits"), with Wal-Mart, 131 S. Ct. at 2552 & n.6 (admonishing courts not to "mistakenly cite[]" Eisen for the incorrect idea that merits inquiries are barred). 3. Contrast these well-defined and rigorous [**92] standards with the ambiguous and limitless ones found in the majority opinion. The majority acknowledges the "rigorous analysis" that lower courts must perform, but abandons that standard soon after mentioning it. Instead, it treats the evidentiary standard for certification as one different from that required for a party to prevail on the merits, never acknowledging that this view breaks from the many courts (including those in our Circuit) that apply the preponderance standard. Nor does it even tell us what a "rigorous analysis" might consist of. Instead, it merely invokes Amgen, a case that addresses what questions may be considered on class certification, not what evidence will suffice to answer them. 133 S. Ct. at 1194-95. Having rendered the rigorous analysis less rigorous than other courts' (though to what degree, one For internal use only SDNY_GM_00056850 CONFIDENTIAL - PURSUANT TO FED. R.ctc;IN(f IDENTIAL DB-SDNY-0019674 EFTA_00 167420 EFTA01295687
February 16, 2026 at 6:39 PM