One-Step, Two-Step: Federal Court Of Appeal Confirms Common Issues Must Have A Minimal Evidentiary Foundation At Certification

In Jensen v. Samsung Electronics Co., the Federal Court of Appeal unanimously confirmed that plaintiffs seeking certification of a proposed class action in Federal Court must demonstrate an evidentiary foundation for both the existence of the proposed common issues and the commonality of those issues across the proposed class.

What you need to know

• The "two-step" approach applies to the commonality requirement at certification. Plaintiffs seeking certification of a proposed Federal Court class action must demonstrate some basis in fact that the proposed common issues exist and that they are common to the entire class.
• Proposed common issues must have an air of reality at certification. At certification, plaintiffs will need to demonstrate at least some evidentiary foundation to support their claim in order to be successful.