Much More Than "Housekeeping": Rule 23(c)(4) in Action

In recent years, class action plaintiffs have increasingly turned to Federal Rule of Civil Procedure 23(c)(4) to overcome the class-certification hurdle. On its face, Rule 23(c)(4) seems simple enough. It states that, “when appropriate, an action may be brought or maintained as a class action with respect to particular issues.” But courts have disagreed on Rule 23(c)(4)’s proper scope and application. Some have viewed it as a mere “housekeeping” tool that cannot alter the court’s analysis under Rule 23(a) and (b). Other courts appreciate that Rule 23(c)(4) is much more. These courts recognize that Rule 23(c)(4) is a powerful alternative to “complete” certification that should be liberally used to promote Rule 23’s goals. The disagreement between courts has spawned conflicting decisions and a much broader debate about the meaning and purpose of the class action device. These issues have taken on heightened significance following the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), which made it more challenging for plaintiffs in certain types of actions to certify a “complete” class covering both issues of liability and damages.