Muehlberger, Congrove & Cummings: Will the Supreme Court Finally Resolve the Circuit Split over Rule 23(c)(4) Issue Class Actions?

Federal courts have disagreed for two-and-a-half decades over the meaning of Federal Rule of Civil Procedure 23(c)(4) — “When appropriate, an action may be brought or maintained as a class action with respect to particular issues” — and how that simple provision fits within the broader scheme of Rule 23. This provision is found in subsection (c), which contains various “housekeeping” rules, whereas the core framework for class actions are housed in subsections (a) and (b). Rule 23(a) requires all putative class actions to satisfy the baseline requirements of numerosity, commonality, typicality, and adequacy of representation. Rule 23(b) enumerates the three permissible types of class actions. Most common is (b)(3), which requires “that the questions of law or fact common to class members predominate over any questions affecting only individual members.”