Washington Law Review


“Carving at the Joints”: Using Issue Classes to Reframe Consumer Class Actions

October 01, 2013 | 88 Wash. L. Rev. 1187

Abstract:  Achieving class certification in consumer litigation is a highly controversial and greatly debated area of civil procedure. Historically, certification under Federal Rule of Civil Procedure 23(b)(3) has been difficult to achieve due to the tension between the presence of individual issues and Rule 23(b)(3)’s predominance, superiority, and management considerations. The future of certification for Rule 23(b)(3) classes was further put in question with the United States Supreme Court’s landmark decision in Wal-Mart v. Dukes in 2011, which enhanced the level of scrutiny courts apply at the Rule 23(a) level of analysis. The Court’s 2013 decisions in Comcast Corp. v. Behrend and Amgen v. Connecticut Retirement Plan and Trust Fund further highlight the difficulties Rule 23(b)(3) classes face in achieving certification. Despite these developments, there are signs of continued vitality. In 2012, the Seventh Circuit allowed issue class certification in a large employment discrimination class, notwithstanding the presence of individual issues in McReynolds v. Merrill Lynch. McReynolds placed Rule 23(c)(4) (a historically seldom used subsection of Rule 23) in the spotlight as a means of allowing consumer claims to achieve certification in the post-Dukes era. This Comment explores the use of issue class certification under Rule 23(c)(4) and attempts to clarify when issue class certification is appropriate, with a particular focus on consumer class actions. By breaking complex issues into smaller, more manageable pieces, Rule 23(c)(4) allows litigants to frame common issues for class treatment and avoid an unnecessarily rigorous analysis of the merits of a claim at the certification stage.

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