February 25, 2020 Articles

Issue Certification under Rule 23(c)(4) Experiences a Resurgence Despite a Circuit Split

Remember to consider this when developing your class certification strategy.

By Julie C. Webb and J. Matthew Goodin

Although the concept of issue certification is plainly contemplated in Rule 23(c)(4) of the Federal Rules of Civil Procedure, it is invoked so infrequently that it may not even appear on the radar for most class action litigators. However, Rule 23(c)(4) issue certification has recently experienced a bit of a moment. See, e.g., In re Foreign Exch. Benchmark Rates Antitrust Litig., No. 13-7789, 2019 WL 4171032, at *10 (S.D.N.Y. Sept. 3, 2019); In re Suboxone Antitrust Litig., No. 13-2445, 2019 WL 4735520, at *40–46 (E.D. Pa. Sept. 27, 2019); In re FCA US LLC Monostable Elec. Gearshift Litig., No. 16-2744, 2019 WL 6696110, at *10–16 (E.D. Mich. Dec. 9, 2019). In fact, in two of these three cases, plaintiffs seeking certification of injunctive classes under Rule 23(b)(2) or damages classes under Rule 23(b)(3) saw their requests denied in favor of sua sponte certification of Rule 23(c)(4) issue classes. Practitioners in the class action arena would do well to renew their understanding of Rule 23(c)(4) certification standards and should account for the possibility of issue certification in developing case strategy.

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