Complex Litigation: Standing

Abstract

Commentary and analysis of the implicit requirement for class certification that class members have standing to bring suit, and the various approaches of federal courts in considering the standing problem. Some federal courts view this as a question of jurisdiction or threshold justiciability. Other federal courts view standing as a problem of the adequacy of the class representative. Before the Supreme Court’s decision in Ortiz v. Fibreboard, 527 U.S. 815 (1999), many courts viewed standing as a threshold issue for class certification. However, the Court’s decision in Ortiz generated a great deal of confusion concerning the timing of a challenge to the standing of a class representative or class members. In Ortiz, the Court indicated that class certification issues are logically antecedent to Article III concerns, and which pertain to statutory standing, which may be treated before Article III standing. This suggested that issues about Rule 23 class certification should be treated first. In the wake of Ortiz, however, some federal courts have applied Ortiz to prevent consideration of challenges to standing prior to class certification, while other federal courts have repudiated this approach. This article discusses the Ortiz “logically antecedent” language, the confusion engendered by this language, and the varying court decisions seeking to interpret and apply this language.