Challenging the Issue Class Action End-Run

Abstract

An ever-increasing number of courts and commentators have advocated a simple solution to the seemingly insuperable problem of troublesome individual issues that often thwart certification of a Rule 23(b)(3) class action on predominance grounds: throw those issues out of the class action altogether, leaving class members to pursue all the unruly individual aspects of their claims in separate trials elsewhere. This “issue class action” end-run can be accomplished, according to this theory, under the auspices of Rule 23(c)(4)(A), which authorizes class actions “with respect to particular issues.” This article examines the text and structural placement of (c)(4)(A), and concludes that a proper statutory analysis does not lend support to an expansive role for issue class actions. Moreover, Rule 23(c)(4)(A)’s largely ignored rulemaking history confirms the very limited function its framers intended the provision to serve.

Refocusing the debate over issue class actions on Rule 23(c)(4)(A) itself, I conclude that the rule as we are bound to apply it today does not fundamentally expand the types of cases that may be certified under Rule 23. Issue class actions may yet have a useful role to play in resolving complex litigation, but any such renaissance of (c)(4)(A) must occur through the deliberative process of amending federal rules rather than by judicial inventiveness. Simply put, the current rule does not authorize an issue class action end-run around the important procedural safeguard of predominance, which ensures class cohesion and the legitimacy of representational litigation.