To circumvent predominance issues, plaintiffs sometimes will ask a court to certify an issue class under Rule 23(c)(4). The Third Circuit recently made it more difficult for plaintiffs to do so by making clear that the issue underlying such a request for class certification must independently satisfy one of the requirements of Rule 23(b). See Russell v. Educational Comm’n for Foreign Medical Graduates, 2021 WL 4343657 (3d Cir. 2021). But the Third Circuit stopped short of embracing a rule that only issues that would resolve a defendant’s liability are appropriate for issue-class treatment, instead concluding that such an inquiry can be resolved only on a case-by-case basis.
