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.
The Advisory Committee should clarify the role of issue certification, by reinforcing that issue certification is only appropriate when a class is otherwise certifiable under Rule 23.
One of the Advisory Committee’s “front burner” issues is whether to clarify Rule 23(c)(4), establishing either that it (1) only applies when the rest of Rule 23 has been met, or (2) is an alternative route to certification for plaintiffs willing to narrow the scope of their case. As the Subcommittee Report describes the current state of issue certification:
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Rule 23(c)(4) says that “[w]hen appropriate, an action may be brought or maintained as
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 … Continue Reading
We’re in the middle of the holiday season, and that means that folks are making (or, for those who celebrate Hannukkah, checking off) their wish lists. This October, the Chamber of Commerce’s Institute for Legal Reform compiled one of their own in their report A Roadmap for Reform: Lessons from Eight Years of the Class Action Reform Act. Why pay attention to this report? As class action defense counsel, don’t we already know what we’d like?
In the wake of Wal-Mart Stores v. Dukes, Judge Posner certified a class of African-American brokers who claimed racial discrimination solely for the purpose of determining whether a pair of compensation policies were discriminatory. Since the publication of that opinion–McReynolds v. Merrill Lynch–the topic of how to deal with the possibility of "issue certification" under Rule 23(c)(4) has become a hot topic for practitioners.
Kansas law professor Laura J. Hines has long written about the issues surrounding issue certification. And her latest paper, The Unruly Class Action, contains her latest and best effort at … Continue Reading
After Dukes, many commentators bemoaned that the class action was dead. At the very least, many argued (as did some last week at DePaul Law School’s Symposium on Class Action Rollback) that the Title VII class action is likely on its last legs.
If so, no one told the plaintiffs’ counsel prosecuting McReynolds v. Merrill Lynch, Pierce Fenner & Smith (7th Cir. 2012), where the Seventh Circuit just reversed denial of a class seeking injunctive relief and certification of a class for the purpose of determining whether disparate-impact discrimination had occurred against African-American brokers.
The case … Continue Reading