As appellate courts have made abundantly clear over the last decade, district courts must consider the merits of a case when deciding whether to certify a class, if necessary to deciding the certification question. But is a district court ever required to formally adjudicatethe merits of a claim or an affirmative defense before reaching the issue of class certification? The Second Circuit recently answered, "Yes," in The Authors Guild, Inc., et al. v. Google Inc., 721 F.3d 132 (2d Cir. 2013), a case claiming that Google's "Google Books" project constitutes copyright infringement. In a rather unusual move, the Second Circuit vacated the district court's order certifying a class, not because the district court used the wrong standard or applied the right standard incorrectly, but because the Second Circuit wanted the district court to rule on the merits of Google's fair use defense first.
The case started in 2005 when several individual authors and an authors guild sued Google on behalf of themselves and a proposed class of copyright holders. The plaintiffs claimed that Google infringed their copyrights with its Google Books project, which involves scanning books in their entirety to create a complete, searchable index of every book that Google scans. Google then displays snippets from those books online in response to user search queries and lists stores and libraries where the books can be found. To date, Google has scanned more than 20 million books.