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ARTICLE · 23 FEBRUARY 2015

Rule 23 Study Agenda – Issue Certification And Rule 23(c)(4)

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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.

United StatesLitigation, Mediation & Arbitration
Andrew J. Trask
Andrew J. Trask

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:

 Rule 23(c)(4) says that "[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues."  But Rule 23(b)(3) authorizes class certification under its provisions only when the court finds that common questions predominate and a class action is superior to other available methods for adjudicating the dispute.  Arguably, these two provisions are not entirely in synch.  Is

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