The Unruly Class Action
40 Pages Posted: 19 Sep 2013
Date Written: August 30, 2013
This article examines the modern “issue class action” and its tenacious existence in a hostile class action landscape. I contend that this unauthorized, unbounded device is on a collision course with decades of Supreme Court jurisprudence narrowly interpreting the federal class action rule. Rather than either suffering such an ignoble fate or continuing to stumble forward as an evolving judicial creation, I advocate instead a robust vetting and evaluative process through formal rulemaking channels.
The issue class action derives from Rule 23(c)(4), which has steadily emerged from a position of near obscurity in the federal class action rule to a widely embraced alternative to the classic (b)(3) damages class action. This approach – authorizing a class action comprised solely of issues common to the class and excluding from that action adjudication of any issues requiring individual consideration – effectively eliminates one of (b)(3)’s two defining requirements, that common issues predominate over individual issues. The Supreme Court’s recent class action decisions have underscored the Court’s consistently constrained reading of Rule 23, particularly with regard to lower court innovative efforts to bypass (b)(3)’s predominance requirement.
In my view, the wide-ranging implications of the issue class action can best be evaluated through an open process of formal rulemaking that includes consideration of recent judicial experimentation, Supreme Court precedent, the input of scholars, practitioners, judges, and other interested parties. Only through such a robust inquiry could we determine whether the issue class action furthers the goals of Rule 23 and, if so, how to amend Rule 23 to accommodate this novel class action in order to reduce its risks and optimize its potential rewards.
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