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Law; Civil Procedure: Rule 23; Class Actions


The modern class action is a litigation superstar. The device’s potential for opening the courthouse doors to “small people,” holding big business accountable, and enacting sweeping reform is second to none. In recent years, however, the star has waned. Judicial hostility has made it harder for plaintiffs to certify a class while making it easier for defendants to avoid class actionsentirely. Certifying a mass tort class has become nearly impossible. Plaintiff lawyers’ creative attempts to work around these roadblocks have been shut down one after another by the Supreme Court. It is in this scorched mass litigation landscape that commentators and lower courts alike are increasingly turning to a once controversial tool—Rule 23(c)(4) of the Federal Rules of Civil Procedure (“Rule 23(c)(4)” or “(c)(4)”). The proponents of an expansive reading of this subsection argue that it empowers courts to certify “issue classes” with the aim to adjudicate only those issues that are common to the class, before leaving the plaintiffs to litigate their individual issues separately in other forums. Notably, the proponents of this reading maintain that a (c)(4) issue class may be certified even when the claim, viewed as a whole, would fail the predominance requirement of Rule 23(b)(3). This has been referred to as the issue class “end-run.” For reasons discussed in Part III, this Comment refers to issue classes enabled by the predominance end-run as “anomalous issue classes.” This Comment seeks to contribute to the current discourse regarding the proper interpretation of Rule 23(c)(4) and the propriety of the issue class end- run. While the expansive reading of (c)(4) is currently dominant, the Fifth Circuit and some commentators have rejected it in favor of a “limited” reading that views the subsection as a “housekeeping tool” designed to make already certifiable classes more manageable, rather than an independent ground for class certification.