Debate Over Predominance in Issue Certification Continues as Supreme Court Denies Cert.

Particularly with the Supreme Court’s denial of cert in Whirlpool v. Glazer, U.S., No. 13-431, cert. denied 2/24/14, “issue certification” itself remains an unresolved issue. In Whirlpool, the Sixth Circuit affirmed the district court’s order granting class certification of claims for breach of warranty, negligent design, and negligent failure to warn under Ohio law for Whirlpool’s front-load washing machines. Whirlpool argued that class certification was improper because individual issues of liability and damages predominated with respect to the action as a whole. Some years ago, Judge Dever discussed the notion of “issue certification” in Farrar & Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc., 254 F.R.D. 68 (E.D.N.C. 2008), noting that “although the Fourth Circuit appears to address this issue in Gunnells v. Healthplan Services, Inc., 348 F.3d 417 (4th Cir. 2003), its analysis is unclear.” As Judge Dever read the opinion, the Fourth Circuit appeared to hold that only causes of action, not individual issues, can be certified. A bona fide circuit split exists on this issue. Compare Castano v. American Tobacco Co., 84 F.3d at 745 n. 21 (5th Cir. 1996), with McReynolds v. Merrill Lynch & Co., No. 11-3639 (7th Cir. 2012). This can be particularly important in consumer class actions. SeeCarving at the Joints: Using Issue Classes to Reframe Consumer Class Actions.” The Fourth Circuit has not touched the issue since Judge Dever wrote about it five years ago. The circuit split encourages forum shopping by plaintiffs hoping to certify issue-based class actions.