Michelle Ligouri and Christopher Flurry over at Best in Class Blog have an interesting post about an issues class certification in the District of Columbia that raises a number of thorny questions: Harris v. Medical Transportation Mgmt., Inc., 77 F.4th 746 (D.C. Cir. 2023). In Harris, the trial court certified an issues class on a variety of issues. The defendant appealed to the DC Circuit, which held that: (1) the predominance requirement of 23(b)(3) applies to issues class certifications, and the trial court needed to determine whether common issues predominated within the issues certified; (2) the trial court should directly address how creating an issues class is superior to other ways of handling the litigation, and (3) in certifying an issues class, the trial court should determine what form of notice is the best practicable notice under the circumstances.

As Ligouri and Flurry note, Bryan Cave has filed with the US Supreme Court an interesting certiorari petition on behalf of the defendant, urging that the Court’s decision in WalMart v. Dukes requires, as a prerequisite for satisfying the commonality requirement of Rule 23(a)(2), significant proof that a uniform policy or practice applied to all class members. Public Citizen, on behalf of the plaintiff, filed a waiver of the right to respond to the cert petition, which is now scheduled for conference on February 16, 2024.

The Harris case is one to keep an eye on, as it could lead to important guidance on issues classes.