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

Assessing the Three-Way Circuit Split on Issue Certification

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

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Conducted on Thursday, October 6, 2022

Recorded event now available

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Course Materials

This CLE course 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.


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 has clarified and heightened the test in Russell v. Educ. Comm’n for Foreign Med. Graduates, 20-2128 (3d Cir. Sept. 24, 2021), but offers both sides plenty to consider. 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.



  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. Textual and historical analysis of Rule 23(c)(4)
  4. Strategies for defending the trial of "issue" classes


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


Congrove, Timothy
Timothy E. Congrove

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.

Duane Morris

Mr. Maatman, Jr., chair of Duane Morris’ Workplace Class Action group, has nearly four decades’...  |  Read More

Mesko, Jennifer
Jennifer L. Mesko

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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