Codifying the Issue Class Action

Abstract

This article examines the “issue class action,” an increasingly popular class action device with dubious legitimacy within the current Rule 23. Rather than certifying a claim or set of claims on behalf of a plaintiff class, the issue class action permits courts to certify only certain parts of those claims. The central appeal of this approach is that it evades the strict constraints of Rule 23(b)(3), which demands that issues common to the class predominate over issues that require individualized adjudication. For class actions that cannot meet the predominance test, the issue class action appears as the next best alternative to securing litigation efficiencies and leveling the playing field for plaintiffs.

In previous articles, I have contended that Rule 23 does not currently authorize the issue class action. Indeed, the subcommittee of the Civil Rules Advisory Committee tasked with drafting proposed Rule 23 amendments initially identified the codification of the issue class action as one of its major objectives. The Rule 23 Subcommittee determined that expressly codifying the issue class action was unnecessary in light of an erroneous assessment that lower courts have reached consensus on the issue class action in its current Rule 23 iteration. To the contrary, I contend that there are at least three conflicting approaches to issue class action certification even among the circuits that have directly addressed the subject. This article offers a comparative analysis of three models of issue class certification standards developed by courts and commentators. The decision not to codify the issue class action also represents a missed opportunity to reexamine the entirety of Rule 23 to assess the impact of this new species of class action on other rule provisions. The class action rule was developed to adjudicate claims, not issues, and many its provisions reflect that understanding in their repeated references to a class “judgment,” which may not readily apply to an issue class adjudication that will not result in a final judgment. And given that damages will not ordinarily be included in an issue class action, attorney fee provisions should be revised to accommodate the unique fee structure required by issue class actions.

Codification of the issue class action through the Rules Enabling Act process would have given this novel form of class action not only important rulemaking legitimacy, it might also have included a holistic examination of the role and scope of the issue class action vis-à-vis other Rule 23 provision. Such an approach would have been far superior to the alternative, rulemaking by judicial fiat that amounts to a mishmash of scattered opinions and continuing uncertainty as to the proper meaning and scope of the issue class action.

Keywords: class action, mass torts, rulemaking