June 02, 2015 Articles

The Rule 23 Subcommittee's April 2015 Proposal on Issue Classes

A starting point in the discussion.

By Paul G. Karlsgodt and Jacqueline K. Matthews

"Issue certification," or certification of one or more discrete issues of law or fact as opposed to certification for an entire claim or case, has been an available procedural tool for decades, having been introduced as part of the 1966 overhaul of Rule 23 of the Federal Rules of Civil Procedure as what is now Rule 23(c)(4). However, issue certification was a tool that was seldom used in class action litigation until recent years, notably in the "moldy washer" decisions by the Sixth and Seventh Circuit Courts of Appeals in In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation, 722 F.3d 838 (6th Cir. 2013), and Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013).

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