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

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, November 14, 2017

Recorded event now available

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Program Materials

This CLE webinar will examine how courts are applying Rule 23(c)(4) in cases where plaintiffs request class certification of only certain limited issues. The panel will discuss considerations and strategies for litigating cases involving Rule 23(c)(4) issue classes based on recent case law trends and their own practical experiences.

Description

Rule 23(c)(4) enables a court to achieve the economies of class action treatment for a portion (or issue) of a case, the rest of which may not qualify for class action treatment under Rule 23(a) or because it may otherwise be unmanageable as a class action. There has been a marked increase in requests for issue class certification since the Supreme Court’s decision in Wal-Mart Stores v. Dukes.

The federal circuits are split on how issue certification should be treated under Rule 23(b)(3)’s predominance requirement. The U.S. Courts’ Advisory Committee on Rules of Civil Procedure has made clarifying the application of Rule 23(c)(4) a committee priority.

However, the proposed Fairness in Class Action Litigation Act of 2017 would preclude courts from certifying issue class actions unless the entire cause of action satisfies Rule 23 requirements.

Pending uniform guidance, class counsel must position issue certification cases for success based on how courts across the country are ruling.

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 the decisions for practitioners pursuing or opposing class certification.

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Outline

  1. The emergence of issue classes under Rule 23(c)(4)
    1. What is an issue class?
    2. How are they being strategically used?
    3. Where are the grey areas?
  2. Key court decisions on issue class certification
  3. Pending changes to Rule 23(c)(4)
    1. United States Courts’ Advisory Committee on Rules of Civil Procedure
    2. Proposed Fairness in Class Action Litigation Act of 2017
  4. Best practices for class counsel for litigating cases involving issue class certification

Benefits

The panel will review these and other key issues:

  • What is the potential conflict between the requirements of Rule 23(c)(4) and Rule 23(b)(3) and how are courts reconciling the conflict?
  • What impact does the rise in issue class certifications have on the trial and settlement of class claims?
  • How can the various circuit court opinions on Rule 23(c)(4) issue classes be leveraged by class action practitioners at the certification stage?

Faculty

Anthony, William
William J. Anthony

Principal
Jackson Lewis

Mr. Anthony is Co-Leader of the firm’s Class Actions and Complex Litigation Practice Group. He has handled...  |  Read More

Congrove, Timothy
Timothy Congrove

Partner
Shook, Hardy & Bacon

Mr. Congrove defends businesses in multidistrict litigation, class actions and other complex cases. He has successfully...  |  Read More

Maatman, Gerald
Gerald L. Maatman, Jr.

Partner
Seyfarth Shaw

Mr. Maatman has a primary emphasis in his practice on defending employers sued in employment discrimination class...  |  Read More

Mesko, Jennifer
Jennifer L. Mesko

Counsel
Tucker Ellis

Ms. Mesko is an experienced litigator who represents businesses in complex civil litigation throughout the United...  |  Read More

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