dissenting.
I respectfully dissent for two reasons. The majority opinion misinterprets Satter-white v. City of Greenville, 578 F.2d 987 (5th Cir. 1979) (en banc), and the majority opinion does not grant Shepard an eviden-tiary hearing.
Satterwhite’s progeny, Camper v. Calumet Petrochemicals, Inc., 584 F.2d 70 (5th Cir. 1978), Armour v. City of Anniston, 597 F.2d 46 (5th Cir. 1979), and now the majority here, misstate its holding. Satterwhite, following the lead of Huff v. N.D. Cass Co. of Alabama, 485 F.2d 710 (5th Cir. 1973) (en *91banc), clearly establishes that lack of merit on an individual claim is not of itself determinative on the question of nexus. Each subsequent decision, however, disregards this clear expression and equates loss of an individual claim with lack of sufficient nexus. The dissent in Armour points out the danger in basing nexus questions on the merits of individual claims.
The majority refuses to remand for an evidentiary hearing. Yet, the majority holds that the trial court committed error when it denied class certification without first holding an evidentiary hearing. Thus, the majority recognizes that the record is incomplete concerning the denial of class certification, but nevertheless rules on the issue. The majority opinion should have ended with the holding on the need for an evidentiary hearing.
Shepard also merits an evidentiary hearing based solely on whether he could justify his failure to submit a statistical analysis. The confusion concerning the 30th of April order places in doubt the propriety of the trial court denying class certification for this reason. The majority opinion agrees, but refuses to remand on the basis of Camper and Armour. Rather, the majority looks at a record that the class representative was not allowed to perfect, and holds that he should have perfected it.
This opinion brings to reality Judge Rubin’s short shrift procedure hypothesis, outlined in Armour, describing how trial courts may deal with class actions with summary dispatch by severing the representative’s personal claims, trying them, and if found meritless, not dealing with the complicated class action. Appellate courts invariably will then hold no nexus.
We should chart a different course.