Class action defendants frequently oppose class certification by arguing that a class action may not be certified when damages cannot be calculated on a classwide basis, citing recent U.S. Supreme Court decisions in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Comcast v. Behrend, 133 S. Ct. 1426 (2013). Recent decisions suggest that one response to such arguments may be to seek the certification of "issues" classes under Federal Rule of Civil Procedure 23(c)(4).
What is an "issues" class? Lawyers typically think of class certification as encompassing an entire case. For example, a case seeking equitable or declaratory relief might be certified under Rule 23(b)(2), or a case for damages might be certified under Rule 23(b)(3). Such certifications often are understood to encompass everything: all causes of action, and all parts of the case, from proof of liability through the award of relief.
