TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Monday, February 17, 2020

Gilles & Friedman on Issue Class Actions

Myriam Gilles & Gary Friedman have posted to SSRN The Issue Class Revolution.  The abstract provides:

In 2013, four Supreme Court Justices dissented from the decision in Comcast v. Behrend establishing heightened requirements for the certification of damages class actions. In a seemingly off-handed footnote, these dissenters observed that district courts could avoid the individualized inquiries that increasingly doom damages classes, by certifying a class under Rule 23 (c)(4) on “liability” issues only, and “leaving individual damages calculations to subsequent proceedings.” The dissenters were on to something big. In fact, the issue class and follow-on damages model has broad potential to restore the efficacy of aggregate litigation across a number of substantive areas, after decades of judicial hostility. This article offers a bold and original vision for the issue class procedure, promising scale efficiency while sidestepping the doctrinal land mines that dot the class action landscape. It is a vision rooted in sober pragmatism and an account of the economic incentives confronting entrepreneurial law firms as they consider investing in aggregate litigation under Rule 23(c)(4).

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Great article-I like this idea. A lot. It seems to me especially valuable in the consumer data breach context where damages can be quite difficult to ascertain and often highly individualized. Thanks for sharing!

Posted by: Alexander Beale | Mar 24, 2020 10:40:50 PM

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