Rule 23(c)(4) has been been placed under a microscope in the past few years, largely because of the judicial response to the Supreme Court’s Comcast Corp. v. Behrend opinion, and the Rules Advisory Committee’s subsequent consideration of possible amendments to the Rule.

In the course of that attention, two articles have come out that illustrate the contours of the debate over the proper scope of issue certification. They are particularly instructive when you look at them together.

First, in 2015, Professor Joseph A. Seiner published an article on the use of 23(c)(4) in labor class actions specifically, titled “The Issue Class.” Professor Seiner’s main argument is that issue class actions would work particularly well for Title VII class actions, especially in the wake of Wal-Mart Stores, Inc. v. Dukes. As he writes:

The efficiencies and flexibility that Rule 23(c)(4) provides are particularly fitting in the employment discrimination context. Again, the issue class is particularly appropriate where there are common facts among the litigants but individual differences as to the degree of harm that has been suffered. Systemic employment discrimination claims frequently involve this exact scenario, providing a common set of facts that give rise to the company’s wrongdoing. Further, the employer’s discrimination often impacts plaintiffs to varying degrees, both financially and emotionally. Thus, the common set of facts combined with the varying level of harm make the issue class a particularly useful tool for employment discrimination litigants.

(Emphasis added.) What’s interesting about this article is that, while it touts the advantages for employment discrimination plaintiffs, it does not consider exactly how the issue certification would be tried. Specifically,

  • There’s no consideration of what the notice to the employment discrimination class would look like.
  • There is no discussion of how the trial would look—either the initial issue trial, or the subsequent proceedings.
  • While Professor Seiner alludes to settlements (primarily to observe that issue-class settlements would likely be smaller, and therefore more palatable to defendants), he does not consider how or whether a court would certify an issue-class settlement under Rule 23(e).

These are some of the same questions that Professor Laura Hines asks in her 2016 article “Codifying the Class Action.” Professor Hines (who has written extensively on the problems posed by Rule 23(c)(4)), focuses her article on the Advisory Committee’s recent refusal to amend Rule 23 to clarify the standards for issue certification. After criticizing the Advisory Committee’s argument that the various appellate circuits substantially agree on the need for some form of issue certification, she focuses on what a revised Rule could or should look like.

Her primary argument is that, rather than adopting a multi-factor test, any Rule language should require the issue to be certified to “materially advance” the litigation. After that, however, she gets into the nitty gritty, advocating for four specific amendments:

  • Rule 23(c)(2) should be amended to provide guidance on how to notify class members that they are part of a class for purposes of determining a single issue, rather than the entire litigation, and what their rights are going forward.
  • The Committee would need to clarify whether any ruling concerning the certified issue would be an appealable final judgment under Rule 23(c)(3).
  • Rule 23(e) would need revision to clarify when an issue class could be certified for settlement purposes without creating intra-class conflicts.
  • Rule 23(h) would need amendment to determine how attorneys’ fees would be calculated.

As Professor Hines writes,

The remaining amendments to Rule 23(c)(2) and (3), (e) and (h) may not prove overly complicated, but the matter of the constitutional reach of an issue class action settlement that encompasses aspects of plaintiffs’ claims over which the court has not exercised jurisdiction is significantly problematic such that the Committee should give it close consideration and consult constitutional scholars to resolve.

These two articles demonstrate the two sides of the issue certification debate. One is focused solely on the advantages of the device, without considering how the certification would play out through the remainder of the lawsuit. The other tries to think through the logistics of a certification of a single issue, and concludes that it is rarely, if every appropriate.

From a practical standpoint, they also suggest an approach for defendants hoping to resist a proposal to certify an issues class: just as strong class certification oppositions ask the court to think through the entire class trial, a defendant can ask the court to think through what certifying an issues class really entails, from issuing notice to determining the preclusive effect of any judgment.

[Incidentally, for more on this topic, you can check out Strafford’s webinar on August 25. For the third year in a row, I will be joining plaintiff’s attorney Russell Jackson and Seyfarth Shaw’s Rebecca Bjork to talk about Rule 23(c)(4).]