Rule 23(c)(4) Issue Certification: Reconciling the Conflict With Rule 23(b)(3)'s Predominance Requirement

This CLE course will examine limited issue certification under Rule 23(c)(4) and how narrowly or broadly different circuits interpret that rule. The panel will provide instruction on considerations and strategies for litigating certification under Rule 23(c)(4) based on recent case law and their own practical experiences, and also review decisions.

Proposed class actions seeking monetary damages are often difficult to certify because common issues do not predominate over individualized issues as required by Rule 23(b)(3). Rule 23(c)(4) provides that "[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues."

Although Rule 23(c)(4) has been part of the rule since the landmark 1966 amendments, it was often overlooked until the Supreme Court's decision in Wal-Mart v. Dukes. Plaintiffs now routinely seek limited issue certification for purported common issues, such as liability, arguing that questions of injury, reliance, or causation should be left for individual cases. When approved, this approach increases defendants' exposure by permitting certification in some cases that would otherwise fail the Rule 23(b)(3) standards.

The federal circuits continue to be split on how issue certification should be treated under Rule 23(b)(3)'s predominance requirement. Litigants continue to seek guidance from the U.S. Supreme Court without success.

Listen as our panel of experienced class action litigators analyzes the varying circuit court positions on Rule 23(c)(4) issue classes and the implications of practitioners' decisions when pursuing or opposing class certification.