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

Growing Circuit Split on Issue Certification

A live 90-minute CLE webinar with interactive Q&A


Wednesday, November 4, 2020

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, October 16, 2020

or call 1-800-926-7926

This CLE webinar will examine limited issue certification under Rule 23(c)(4) and the three-way split that has developed among the circuits regarding how narrowly or broadly to interpret that rule. The panel will provide instruction on considerations and strategies for litigating certification under Rule 23(c)(4) based on recent case law and their own practical experiences.

Description

Proposed class actions seeking monetary damages are often difficult to certify because common issues do not predominate over individualized issues as required by Rule 23(b)(3). Rule 23(c)(4) provides that "[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues."

Although Rule 23(c)(4) has been part of the rule since the landmark 1966 amendments, it was often overlooked until the Supreme Court's decision in Wal-Mart v. Dukes. Plaintiffs now routinely seek limited issue certification for purported common issues, such as liability, arguing that questions of injury, reliance, or causation should be left for individual cases. When approved, this approach increases defendants' exposure by permitting certification in some cases that would otherwise fail the Rule 23(b)(3) standards.

The federal circuits are now in a three-way split on how issue certification should be treated under Rule 23(b)(3) 's predominance requirement. While the Fifth Circuit has taken the textual view in Castano v. American Tobacco Co. that permits issue certification only if the class first qualifies under Rule 23(b)(3), the Ninth, Sixth, Second, and Seventh Circuits have adopted the opposite view that Rule 23(c)(4) certification does not require predominance. The Third Circuit applies a multi-factor test, and the remaining circuits are uncommitted, leaving the district courts to address the matter.

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 practitioners' decisions when 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. Benefits and burdens of issue certification
    1. For plaintiffs
    2. For defendants
  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 tension 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 class action practitioners leverage the various circuit court opinions on Rule 23(c)(4) issue classes at the certification stage?

Faculty

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

Muehlberger, James
James P. (Jim) Muehlberger

Co-Chair, Food, Beverage & Agribusiness Practice Group
Shook Hardy & Bacon

Mr. Muehlberger has more than three decades of experience successfully defending class actions and multidistrict...  |  Read More

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