The Uses and Limits of Issue Certification

The interplay between two provisions of Rule 23, the federal class action rule, has engendered a longstanding circuit split which deepened last month. Rule 23(b)(3) permits class certification where the court finds that questions common to class members presented by a claim predominate over individual ones. 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.” If a claim as a whole does not meet the predominance requirement, under what circumstances does Rule 23(c)(4) nevertheless authorize the district court to carve out one or more discrete issues for class treatment? May a court effectively sidestep individualized issues that would otherwise prevent class certification by the expedient of issue certification? In Martin v. Behr Dayton Thermal Products, 2018 WL 3421711 (6th Cir. July 16, 2018), the U.S. Court of Appeals for the Sixth Circuit joined the Second and Ninth Circuits and endorsed broad use of issue classes, permitting class treatment of seven issues going to the defendants’ knowledge and conduct in a groundwater contamination suit. Three day days earlier, a federal court had declined to certify issue classes proposed by former NHL players seeking medical monitoring for brain injuries allegedly incurred during their professional careers. In re National Hockey League Players’ Concussion Injury Litigation, 2018 WL 3421343 (D. Minn. July 13, 2018).  As the plaintiffs increasingly propose issue certification as an alternative to class certification of their causes of action as a whole, the need for definitive parameters on use of the device remains clear.

Background

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.” The text of Rule 23(c)(4) does not purport to modify the certification requirements of Rule 23(b); rather, it provides for issue-only adjudication only “[w]hen appropriate.” Nor does it establish a separate set of requirements to guide the “appropriate[ness]” inquiry, suggesting that issue certification is “appropriate” where the requirements of Rule 23 are otherwise satisfied. If Rule 23 were intended to provide a stand-alone basis for class certification, Rule 23(c)(4) would logically have been placed alongside the other Rule 23(b) subsections which establish when certification is proper. Gunnells v. Healthplan Services, 348 F.3d 417, 447 (4th Cir. 2003) (Rule 23(c)(4) does not provide “a fourth avenue” to class certification “on equal footing with Rule 23(b).”) (Niemeyer, J., dissenting).