Second Circuit Analyzes Split Re: Class Certification as to Specific Issues under Rule 23(c)(4)(A); Agrees with Ninth Circuit

Per In re Nassau County Strip Search Cases, 461 F.3d 219 (2nd Cir. Aug. 24, 2006):

Whether a court may employ Rule 23(c)(4)(A) to certify a class as to a specific issue where the entire claim does not satisfy Rule 23(b)(3)'s predominance requirement is a matter of first impression in this Circuit. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 167 n. 12 (2nd Cir. 2001) (identifying question as one of first impression and declining to resolve it). It also is a matter as to which the Circuits have split. Id.

The Fifth Circuit has adopted a "strict application" of Rule 23(b)(3)'s predominance requirement. Id. Under this view, "[t]he proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial." Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996). The Ninth Circuit holds a different view. Pursuant to that court's precedent, "[e]ven if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues." Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996); cf. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 439 (4th Cir.2003) (holding that courts may employ Rule 23(c) to certify a class as to one claim even though all of plaintiffs' claims, taken together, do not satisfy the predominance requirement).

We agree with the Ninth Circuit's view of the matter. First, the plain language and structure of Rule 23 support the Ninth Circuit's view. . . . Second, the Advisory Committee Notes confirm this understanding. . . . In addition, as the Fourth Circuit has noted, the Fifth Circuit's view renders subsection (c)(4) virtually null, which contravenes the "well-settled" principle "that courts should avoid statutory interpretations that render provisions superfluous." State St. Bank & Trust Co. v. Salovaara, 326 F.3d 130, 139 (2d Cir.2003). . . . Finally, we note that the commentators agree that courts may use subsection (c)(4) to single out issues for class treatment when the action as a whole does not satisfy Rule 23(b)(3). See 7AA Wright & Miller, Federal Practice & Procedure § 1790 (3d ed.2005).

For those reasons, we hold that a court may employ subsection (c)(4) to certify a class as to liability regardless of whether the claim as a whole satisfies Rule 23(b)(3)'s predominance requirement.