Class Action Insider

In In re White, 2023 WL 2763812 (C.A.D.C., 2023), the D.C. Circuit—splitting with several other circuit courts—reversed a district court’s order that denied class certification because the plaintiffs sought to certify a “fail-safe” class. While acknowledging the recognized criticisms of fail-safe classes, the D.C. Circuit held that a standalone rule against fail-safe classes is an inappropriate and “extra-textual” limitation on certification.

The Supreme Court has not directly ruled on whether issue certification pursuant to Rule 23(c)(4) should be applied as stringently as the Rule 23(b)(3) predominance requirement for class actions. Currently, there is a split among the circuits, which makes issue certification appear more attainable in some circuits than others. Recent cases denying Rule 23(b)(3) class certification reinforce the motivation for putative classes to consider issue certification.

Last month, the First Circuit held that incentive awards for named plaintiffs are permissible under Rule 23, increasing the odds this question will be considered by the Supreme Court.