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March 15, 2019 Top Story

Appeals Court Embraces An “Issues Class”

Broad view suggests trend toward more class actions

By Andrew J. Kennedy

A federal appellate court has endorsed the certification of an “issues class” for a case involving alleged contamination of groundwater for 540 properties.

defendants filed suit for contaminated groundwater with known and suspected carcinogens

defendants filed suit for contaminated groundwater with known and suspected carcinogens

iStockphoto by Getty Images

By taking a broad view of class certification based solely on certain issues, the decision paves the way for plaintiffs to obtain class certification even where issues of actual injury, causation, and damages will have to be tried separately. With this ruling, the Sixth Circuit joins four other circuits in embracing the broad view of class certification. The decision may pave the way for wider use of class actions.

Class Action Suit Filed

In 2008, more than two dozen plaintiffs filed suit in Ohio state court, asserting that numerous defendants had contaminated groundwater with known and suspected carcinogens. This, they asserted, contaminated the groundwater and created risk that vapor from the compounds would invade their homes and buildings and cause serious health problems.

One of the defendants, invoking the Class Action Fairness Act (CAFA), removed the case to the U.S. District Court for the Southern District of Ohio. The operative complaint asserted eleven claims. The plaintiffs moved for class certification under Rule 23(b)(3) for five of them. In the alternative, the plaintiffs sought class certification on seven issues under Rule 23(c)(4).

The district court found that the plaintiffs could not meet Rule 23(b)(3)’s predominance requirement because Ohio law required them to prove injury-in-fact and causation individually. But when it addressed class certification under Rule 23(c)(4), it held that it did not need to find predominance to certify the class. The court certified seven issues for class treatment.

Court of Appeals Endorses a Broad View of Class Certification

The parties cross-appealed to the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit noted that the district court “has broad discretion to decide whether to certify a class.” Then the court reasoned that other circuits have disagreed about how the requirements of Rule 23(b)(3) interact with the requirements of Rule 23(c)(4). Specifically, Rule 23(b)(3) allows class certification where “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently handling the controversy.” Rule 23(c)(4) is silent about that requirement. It provides that when “appropriate, an action may be brought or maintained as a class action with respect to particular issues.”

The Sixth Circuit observed that the broad view allows using Rule 23(c)(4) even “where predominance has not been satisfied for the cause of action as a whole.” The Sixth Circuit found that the Second, Fourth, Seventh, and Ninth Circuits followed this broader approach. It also noted that the Fifth Circuit adopted the so-called “narrow view” which bars issue classing if predominance has not been satisfied for the class action as a whole.

The Sixth Circuit embraced the broad approach. The court summarized its view, saying “Rule 23(c)(4) contemplates using issue certification to retain a case’s class character where common questions predominate within certain issues and where class treatment of those issues is the superior method of resolution.”

The court of appeals reasoned that the certified issues were capable of resolution with class-wide proof. Five of the issues turned on the defendant’s knowledge and conduct. Given class-wide treatment, those issues needed to be established just once. The court was not troubled by the fact that some issues could not be tried as a class. Certification may be proper, it held, even if “actual injury, causation, and damages will have to be tried separately.”

A Growing Trend

“Rule 23(c)(4) issues have been a hot button topic for that past 5–7 years,” observes Robert J. Herrington, Los Angeles, CA, cochair of the Emerging Issues Subcommittee of the Class Actions & Derivative Suits Committee of the ABA Section of Litigation. “This case is definitely a part of a trend, and it gives the trial court more discretion to certify something if that is what they are inclined to do.”

Another Section of Litigation leader sees the decision turning on specifics of the case. “The certification of the issues class under (c)(4) seems to have been driven, at least in part, by the length of time the case had been pending without resolution,” says Meaghan Goodwin Boyd, Atlanta, GA, cochair of Toxic Torts Subcommittee of the Section’s Environmental & Energy Litigation Committee. “The court found certifying this issues class would materially advance the litigation that had been pending for over ten years.”

The decision does suggest strategies for litigators. “This case underscores the viability of a (c)(4) certification. Both plaintiffs and defendants will need to give more attention to issue certification,” explains Herrington. “Both sides are going to have to spend more time to deal with (c)(4) classes.”

“A litigator who opposes certification of an issues class,” advises Boyd, “should focus on showing the court that individualized inquiries are necessary even within the issues themselves.”

Still, Herrington sees issues classes as an emerging topic in class action litigation. “Savvy plaintiff’s class action lawyers are focusing on (c)(4) to ensure certification,” he says. But this case also shows that there is no clear consensus yet on issues classes. Because of that, he says, “I can see this issue as something the Supreme Court would take an interest in.”


Andrew J. Kennedy is an associate editor for Litigation News.

Editor's note: On March 18, 2019, after the above article went to press, the U.S. Supreme Court denied certiorari in Behr Dayton Thermal Products LLC, v. Martin.

Hashtags: #classaction

Related Resources

  • Daniel R. Karon, “Class Actions: The “Fairness” in Class Action Litigation Act,” Litigation, Vol. 42 No. 4 (Aug. 7, 2017).

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