When you think of a federal class action, you likely think of unnamed parties being treated as a class under Rule 23(b). That rule allows class certification when “questions of law or fact common to class members predominate over any questions affecting only individual members . . . .” But Rule 23(c) allows class treatment “with respect to particular issues,” such as whether someone created a risk of harm—even if causation must be judged one party at a time. The Sixth Circuit recently decided that when Rule 23(b) class certification of parties is not appropriate, Rule 23(c) class certification of issues is still an option.

Thirty property owners in Dayton filed a class action against the past owners of an air-conditioner factory, alleging the factory caused environmental contamination of the nearby property. The property owners claimed that volatile organic compounds had seeped into the groundwater underneath their property, creating a risk of vapor intrusion. That vapor intrusion, in turn, created a risk that the property owners will breathe in carcinogens.

The district court denied the motion for Rule 23(b) class certification of parties but granted the Plaintiffs’ alternative motion for Rule 23(c) class certification of issues. Defendants asked for an interlocutory appeal. The Sixth Circuit allowed the appeal and affirmed.

Defendants urged the Sixth Circuit to take a narrow reading of Rule 23(c). In Defendants’ view, because common issues of law and fact did not predominate over individual questions for each claim, class treatment of the remaining common issues was not appropriate. The Sixth Circuit rejected this argument and held that Rule 23(c) allowed class treatment of issues even when Rule 23(b) didn’t allow class treatment of parties.

The Sixth Circuit explained that “the broad approach respects each provision’s contribution to class determinations by maintaining Rule 23(b)(3)’s rigor without rendering Rule 23(c)(4) superfluous. . . . By contrast, the narrow view would virtually nullify Rule 23(c)(4).” Adopting the Defendants’ view of Rule 23(c), “that predominance must first be satisfied for the entire cause of action[,] would undercut the purpose of Rule 23(c)(4) and nullify its intended benefits.” The Sixth Circuit affirmed class treatment of the certified issues.

Read the Sixth Circuit’s opinion here.