December 12, 2006
Scott Dodson has posted a paper on SSRN addressing FRCP 23(c)(4)(B): Subclassing, 27 Cardozo L. Rev. 2351 (2006). In mass tort class actions, Amchem and Ortiz brought the question of subclassing to the fore, especially as a possible solution to the problem of adequacy of representation for present and future claims. Subclassing also has been discussed as a possible solution to choice of law problems in nationwide or multistate class actions, or to solve predominance and adequacy problems related to different disease categories or other issues. But despite the Supreme Court's nudge, there's a sense that as a practical matter, subclassing has not taken hold in mass torts or elsewhere. Here's a copy of Prof. Dodson's abstract:
This article is the first to take a hard look at Federal Rule of Civil Procedure 23(c)(4)(B), an oft-slighted part of the class action scheme that permits a court to create subclasses when appropriate. Despite its tautologically unhelpful text, no other court or commentator has undertaken a comprehensive analysis of this provision. The time to do so is certainly now. As class actions grow bigger, plaintiffs seek new ways to meet Rule 23's certification requirements. Just in the last few years, plaintiffs have turned to subclassing's sister provision, Rule 23(c)(4)(A), which has consequently received a flurry of commentary from courts and academics. The subclassing provision, which provides an alternative mechanism to Rule 23(c)(4)(A), is therefore ripe for a similar spate of commentary and conflict. This article sets the stage for that discussion by formulating two conflicting theories of subclassing: the replacement theory, which posits that subclasses can be certified without regard to the certifiability of the global class action, and the contingency theory, which requires any subclass to be a part of a certified global class. Testing these interpretations of Rule 23(c)(4)(B) against the traditional tools of statutory interpretation - text, context, structure, drafting history, precedent, and functionality - the article concludes that the replacement theory is the best interpretation of the subclassing provision. Nevertheless, the article notes the contrary arguments and suggests that they serve as a call to the Rules Committee and the Court to clarify the meaning and scope of the subclassing provision.
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