Advancing Rule 23(c)(4) Issue Class Certification "When Appropriate"
Document Type
Article
Publication Date
2024
Abstract
The Federal Rules of Civil Procedure allow for the use of class action devices within the bounds set by Rule 23. Most practitioners are familiar with the types of class actions described by Rule 23(b), including (b)(2) for injunctive or declaratory relief and (b)(3) for money damages. Another Rule, however, describes a tool that can be used to further divide classes: Rule 23(c)(4) “issue classes.” Rule 23(c)(4) allows class actions to be “brought or maintained . . . with respect to particular issues.” Though the Rule has existed since the 1966 amendments to the Federal Rules, it has seen revived interest in the last twenty years with several circuit courts issuing their first opinions on the device. The Supreme Court, however, has never ruled on issue classes, and the circuits have come to different understandings of exactly what is required to certify a Rule 23(c)(4) issue class. Part I of this Article describes the history of Rule 23(c)(4), including its drafters’ original understanding of its purpose and its use until present day cases. Part II analyzes the past and current circuit splits on Rule 23(c)(4). A past circuit split found that issue classes are in tension with Rule 23(b)(4)’s predominance requirement, but most scholars consider this split resolved. Most circuits today focus on whether the issue class certification would “materially advance” the litigation, while the Third Circuit has created a nine-factor test to determine what “when appropriate” in the Rule means. In Part III, I argue that most of these differences in approach overlap on common considerations: they generally agree on the manner of certification and that issues to be certified can fall short of full liability determinations. However, the circuits disagree on how to consider whether certification will materially advance the litigation, and the Third Circuit considers extra factors related to fairness, preclusion, and Constitutional concerns. I argue that, despite their issues, the circuits’ varied opinions could be collapsed down to one common approach.
Recommended Citation
Stuever, Joseph, "Advancing Rule 23(c)(4) Issue Class Certification "When Appropriate"" (2024). Student Scholarship Lunch. 5.
https://scholarship.law.upenn.edu/student_scholarship_lunch/5