40 Pages Posted: 6 Dec 2006 Last revised: 12 Nov 2012

Scott Dodson

University of California Hastings College of the Law


This article is the first to take a hard look at Federal Rule of Civil Procedure 23(c)(4)(B), an oft-slighted part of the class action scheme that permits a court to create subclasses when appropriate. Despite its tautologically unhelpful text, no other court or commentator has undertaken a comprehensive analysis of this provision. The time to do so is certainly now. As class actions grow bigger, plaintiffs seek new ways to meet Rule 23's certification requirements. Just in the last few years, plaintiffs have turned to subclassing's sister provision, Rule 23(c)(4)(A), which has consequently received a flurry of commentary from courts and academics. The subclassing provision, which provides an alternative mechanism to Rule 23(c)(4)(A), is therefore ripe for a similar spate of commentary and conflict. This article sets the stage for that discussion by formulating two conflicting theories of subclassing: the replacement theory, which posits that subclasses can be certified without regard to the certifiability of the global class action, and the contingency theory, which requires any subclass to be a part of a certified global class. Testing these interpretations of Rule 23(c)(4)(B) against the traditional tools of statutory interpretation - text, context, structure, drafting history, precedent, and functionality - the article concludes that the replacement theory is the best interpretation of the subclassing provision. Nevertheless, the article notes the contrary arguments and suggests that they serve as a call to the Rules Committee and the Court to clarify the meaning and scope of the subclassing provision.

Keywords: class action, subclassing, issue class, civil procedure, Rule 23, federal rules, amchem

Suggested Citation

Dodson, Scott, Subclassing. Cardozo Law Review, Vol. 27, p. 2351, 2006. Available at SSRN:

Scott Dodson (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-581-8959 (Phone)


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