Standing and Other Dispositive Motions after Amchem and Ortiz: The Problem of 'Logically Antecedent' Inquiries

There can be little doubt that the question of standing is an important requirement for class certification. Whether the standing inquiry is incorporated into the implicit requirement that the class representative actually be a member of the class, or whether it is viewed as a freestanding requirement, there can be little doubt that standing is one of the most established principles of federal class action jurisprudence.Prior to the Supreme Court's two landmark decisions in Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp., many courts viewed the standing issue as a threshold issue for class certification, and federal and state courts acknowledged this proposition. In those courts that viewed standing as a jurisdictional prerequisite, a plaintiff's lack of standing at the time the class action suit was filed deprived the court of subject matter jurisdiction over the plaintiff's individual claims and claims on behalf of the class. Before Amchem and Ortiz, courts routinely considered standing challenges and other dispositive motions prior to class certification. Strategically, it has always been to the defendant's advantage to challenge the plaintiff's standing prior to certification. If the defendant prevailed on a motion to dismiss for lack of standing, the class action would be dismissed because a class action without a class representative could not go forward. If class counsel wished to pursue the class action, counsel would need to find a class representative with proper standing.Consequently, plaintiff's class counsel seek to deflect, defer, or prevent a court's consideration of standing until after class certification because class counsel gain a strategic advantage merely by having the court certify the action, even if there are problems or defects with standing. Class counsel were unexpectedly handed a strategic boon in the Court's 1997 Amchem and 1999 Ortiz decisions. Building on an analytical foundation set forth in Amchem, the Court in Ortiz explained that: “the class certification issues are . . . logically antecedent to Article III concerns, and themselves pertain to statutory standing, which may properly be treated before Article III standing. Thus the issue about Rule 23 certification should be treated first.” This single sentence in both Amchem and Ortiz has caused a great deal of mischief. Since the late 1990s, as a consequence of Amchem and Ortiz's “logically antecedent” language, some courts have been persuaded to decline consideration of standing or other jurisdictional challenges prior to class certification. This shift has benefited the plaintiffs' class action bar who, through invocation of the Amchem-Ortiz “logically antecedent” language, may now evade threshold scrutiny of the class representative's standing, or possibly other threshold jurisdictional challenges, with impunity.More expansively, some class counsel have broadly invoked the Court's Amchem-Ortiz “logically antecedent” language in order to prevent a court's consideration of an array of other pre-certification dispositive motions, relating to other jurisdictional or justiciability issues, such as mootness. In this more expansive reading, class counsel urge that the Supreme Court has generally suggested the class certification determination is logically antecedent to, and should come before, a court's consideration of any defense motions to dismiss the action on other grounds.Naturally, the plaintiff's invocation of the Amchem-Ortiz “logically antecedent” language has correlatively caused defendants a great deal of frustration, especially when courts agree to postpone consideration of standing or other dispositive motions in order to evaluate class certification requirements and certify a class. From the defendant's point to view, a court's postponement of something as basic as a standing challenge, or any other jurisdictional or justiciability challenge, has perverse consequences.This article argues that those courts that have interpreted the Amchem-Ortiz language as creating an exception, rather than a rule, have correctly construed and applied the Amchem-Ortiz brief excursion on the timing of class standing issues. Indeed, the Amchem-Ortiz “logically antecedent” language was not intended to create a new rule, but instead rather inartfully restated pre-existing doctrine. In the final analysis, courts should continue to review standing and other jurisdictional challenges at the same time and in the same fashion as those courts did prior to Amchem and Ortiz. To do otherwise results in the perverse consequences defendants have rightly identified post-Ortiz.Finally, this article suggests that in the same fashion that the Amchem-Ortiz “logically antecedent” language should not be read to bar pre-certification standing and jurisdictional challenges, courts should not view this language to expansively counsel deferral of the array of pre-certification dispositive motions that courts traditionally have entertained prior to consideration of class certification motions.