As we discussed last year, a bona fide circuit split exists with respect to “issue certification.” We observed that the Fourth Circuit’s guidance on this issue is foggy: As Judge Dever has noted, “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.”
In his recent order denying class certification in Parker v. Asbestos Processing, LLC, No. 0:11-cv-01800 (D.S.C. Jan. 8, 2015), Judge Joseph F. Anderson joined the fray, providing an interesting twist on the subject and the practical observations of a judge who has been on the bench nearly 30 years. In Parker, a class comprised of about 15,000 South Carolina asbestos plaintiffs sought certification of legal malpractice and breach-of-fiduciary-duty claims against a number of Mississippi lawyers. Central to the contentions made by plaintiffs was the allegation that their lawyers had failed properly to advise them that proceeding with tort claims would prejudice their right to assert South Carolina workers’ compensation claims.
Judge Anderson skipped fairly quickly over Rule 23(a)’s commonality requirement, although he observed that “the Fourth Circuit appears to place more weight on the degree of commonality required under Rule 23(a)(2) stage than do other courts.” Indeed, the court’s rather rote discussion of commonality – including its citation of a 1997 Second Circuit case – was reminiscent of the way in which many courts previously approached commonality, at least before the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes.
Before getting to issue certification and ultimately to its holding concerning manageability, the court touched on a good number of class certification issues. These included: potential conflicts among the class members (since some of the class were currently represented by some of the defendants); choice of law issues (which the court resolved by finding that the injuries all occurred in South Carolina so there was not the uniformity problem we have previously discussed in this space; and the court’s read of Comcast, which Judge Anderson found “merely [to] indicate that the ‘methodology’ for measuring and quantifying damages be the same for all class members.”
As to issue certification, Judge Anderson observed that the question was not so much whether “issue certification” is viable (indeed Rule 23(c)(4) seems to assume as much) but how the predominance inquiry factored into the analysis. Judge Anderson read the Fourth Circuit’s decision in Gunnells differently from Judge Dever and sided with the Second, Seventh and Ninth Circuits, holding that a trial court “may use Rule 23(c)(4) to certify a class as to an issue regardless of whether the claim satisfies the predominance test in Rule 23(b)(3).”
But Judge Anderson ultimately declined to certify the class, ruling that the proceedings were unmanageable and because of that, a class action was not a superior method for adjudicating the case. Put simply, the court was not enamored with deciding – in one case – over 15,000 claims of workers’ compensation disability issues, even if there were some common questions floating about. This led Judge Anderson to observe that “the present case illustrates, perhaps, why issue certification authorized by Rule 23(c)(4) is little used. As the common issues are narrowed down to make them sufficiently ‘common,’ the desirability of issue certification is diminished” and “the superiority component of Rule 23(b)(3) frequently comes into play to defeat issue certification.” Judge Anderson aligned himself with other courts, cited in the opinion, concluding that “where the prevalence of individual issues is such that limited class certification would do little to increase the efficiency of the litigation,” class certification is not warranted.