Since Judge Posner’s opinion in McReynolds v. Merrill Lynch almost two years ago, the issue of issue certification has been enjoying a renaissance. The latest entry in the discussion of how to look at issue certification comes from defense lawyer (and Georgetown adjunct law professor) Mark Perry, in his article Issue Certification under Rule 23(c)(4): A Reappraisal, 62 DePaul L. Rev. 733 (2013).

Perry bases his analysis on the proposal offered by Columbia Professor John Coffee that appeared in the 2011 version of his "New Class Action Landscape" memo. (A smart move: Professor Coffee is a giant in class action jurisprudence; if you’re going to attack a proposal, attack the best version out there.) To quote from the 2012 version:

This “issue certification” approach seems most promising in cases involving one or more common liability issues, but also highly individualized facts that preclude any class wide determination as to damages, proximate causation, or reliance. The arguments in favor of partial certification include greater judicial efficiency, an opportunity for both parties to adjudicate certain complex issues once instead of in countless separate trials, and an increased opportunity for plaintiffs to pool their resources to gain at least partial victories in what would otherwise be impossibly burdensome, “negative value” individual cases.

(Emphases added.) Drawing on the analytical methodology laid out in several Supreme Court opinions, including Taylor v. Sturgell and Ortiz, Perry offers a three-part constitutional argument against issue certification. Here is his summary of the first two parts:

First, the Reexamination Clause forbids two separate jury trials for the same claims and facts. As the Court has stated in interpreting this Clause, two jury trials may not be used for the same case "unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice." Claim elements and defenses, however, are not "distinct and separable" from liability. Accordingly, Professor Coffee himself has admitted that the Seventh Amendment may prevent partial certification. Therefore, "partial certification" raises significant constitutional concerns, and the rule of constitutional avoidance counsels against an expansive use of Rule 23(c)(4).

Second, as noted above, the Rules Enabling Act forbids the Federal Rules of Civil Procedure from abridging or modifying any substantive right. In standard (nonclass) litigation, courts frequently bifurcate liability from damages. But claim elements or defenses are not stripped from a trial between two adversaries. It is hard to imagine, for example, a nonclass fraud case in which the plaintiff could establish "liability" without proving either causation or reliance, and without the defendant being permitted to present any affirmative defenses. Yet that is Professor Coffee’s proposal in a nutshell. In the class context, litigants retain their rights and obligations to prove up and defend against the charges. As the Court in Dukes stated, a class cannot "be certified on the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual claims." Lower courts, too, have emphasized that a class action cannot be certified if doing so requires relieving the plaintiffs of their burden of proving a claim element. The sort of issue certification proposed by Professor Coffee, in short, is forbidden by the Rules Enabling Act.

(Internal footnotes omitted; emphases added.) The third part, which draws on historical approaches to class actions, is also persuasive, but has been addressed equally well elsewhere. Regardless, the entire article is worth a read to any defense counsel who may be facing arguments for partial certification.