After the Supreme Court’s decision in Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) was announced, many believed class certification of employment classes or Rule 23b(2) classes would be a thing of the past.  Developments after Dukes, however, demonstrate that, to the contrary, courts have found ways to avoid the impact of Dukes.

Dukes did heighten the commonality requirement of Rule 23(a) and narrow the permissible scope of a Rule 23(b)(2), based in large part on due process concerns.  But district court judges have addressed these concerns in a variety of ways.  Some have imported into Rule 23(b)(2) class actions the Rule 23(b)(3) requirements of notice and a right to opt out.  Others have used 23(c)(4) to certify class-wide liability and equitable issues under 23(b)(2) and divisible individual damages claims under (b)(3) (i.e., hybrid certification). See, e.g., Easterling v. Connecticut Dept. of Correction, Criminal No. 3:08–cv–826 (JCH), 2011 WL 5864829, *5 (D. Conn. Nov. 22, 2011).  Still others have certified only class-wide liability issues under 23(b)(3), postponing adjudication of certification of divisible damages until the second phase and considering the possibility that individual damages claims might have to be pursued individually (i.e., the bifurcation approach).  See, e.g., In re Motor Fuel Temperature Sales Practices Litigation, No. 07–2053–KHV, 2012 WL 205904, *9 -10  (D. Kan. Jan. 19, 2012).

The circuit courts of appeals are split on whether it is appropriate to use issue certification under 23(c)(4) to certify a 23(b)(3) class as to parts of a claim without first finding that the whole claim satisfies the requirements of 23(b)(3), especially the predominance requirement.  While issue certification has generally been disfavored, the Seventh Circuit recently allowed it.  McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 11–3639, 2012 WL 592745, *8 (7th Cir. Feb. 24, 2012).  Resolution of this issue over the long term will determine the extent to which Dukes has any staying power as a significant limitation on class certification.

The “issue” of issue certification thus remains unresolved.