Thoughts, opinions and
comments by attorneys and staff at
Whitfield Bryson & Mason

Certification by Subclass

By Gary E. Mason | 

A long running debate under Rule 23 surrounds the use of Rule 23(c)(4).  The Fifth Circuit, starting with Castano, years ago found that issues could not be certified unless the causes of actions to which they relate as a whole met the requirements for Rule 23(b)(3) certification.  Critics argued that the Fifth Circuit's approach made Rule 23(c)(4) superfluous and was not the interpretation meant by Congress.

Years later, issue certification continues to play an uncertain role in the Rule 23 practitioners' tool chest. On the one hand, some courts remain willing to certify narrow issues.  In Kingsbery v. U.S. Greenfiber, LLC (S.D. Cal., May 23, 2011), for example, the Court certified a narrow class of original purchasers of homes from defendant Pulte with respect to non-disclosure claims only.  No other claims set forth in the complaint were certified.

At the same time, in another recent opinion, the Sixth Circuit acknowledged that it has not come to terms with issue certification:

"Additionally, Fidelity argues that subclassing and bifurcation cannot be used to overcome a lack of predominance. Some other circuits have adopted this view and held that creative subclassing and bifurcation procedures cannot be used to remedy a lack of predominance. See, e.g., Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1176 (11th Cir. 2010); Castano v. Am. Tobacco Co., 84 F.3d 734, 745 & n.20 (5th Cir. 1996); see also Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 446-47 (4th Cir. 2003) (Niemeyer, J., concurring in part and dissenting in part). However, other circuits see no such barrier and allow subclassing as long as common issues predominate over the subclasses. See, e.g., In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 226 (2d Cir. 2006); Gunnells, 348 F.3d at 439 ; Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). The Sixth Circuit has not yet weighed in on this issue and we do not at this time . . ."

Randleman et al. v. Fidelity Nat'l Title Ins. Co, et al., Nos. 09-4533 (6 th Cir., May 24, 2011).

We think the better view, and the one which best gives meaning to the Rule, is that Rule 23(c)(4) allows core issues in a case to be certified, even where ancillary individual issues will remain once the core issue is resolved.