Congrove, Wu & Warren Co-Author BNA Insights Article on Rule 23(c)(4) Issue Certification

Partners Tim Congrove and Greg Wu and Associate Chris Warren have co-authored a BNA Insights article titled “Uncertain Principles? Evaluating the Tension Between Rule 23(b)(3) and (c)(4) Post-Dukes, and the ALI’s Effort to Integrate the Provisions.” Published on July 13, 2012, the article details how the federal courts have split over the interpretation of Rule 23(c)(4), which allows an action to be maintained as a class action as to particular issues, and Rule 23(b)(3), which requires that issues common to a class predominate over individual issues for the action to be maintained as a class action. Contending that the issue is ripe for U.S. Supreme Court review, the authors suggest that the Court would likely take a more restrictive approach to Rule 23(c)(4) to avoid rendering the predominance requirement a nullity. They also explore the American Law Institute’s (ALI’s) attempt to integrate the rules in the 2010 version of its Principles of the Law: Aggregate Litigation, arguing that the approach is flawed and does not serve public policy interests. To read the article, please click here.