By Mark Casciari and Gerald L. Maatman, Jr.

Some in the plaintiffs’ class action bar are taking up the mantel of “issues certification” as a new approach to litigating workplace class actions. They base their tactics in part on the Seventh Circuit’s recent decision in McReynolds, et al. v. Merrill Lynch, 672 F.3d 482 (7th Cir. 2012).

We have blogged on the implications of McReynolds on multiple occasions (here and here and here.) 

We thought our loyal blog readers would enjoy some critical thinking on issue certification questions, and potential defense approaches to these plaintiffs’ stratagems. To that end, Westlaw Class Action Journal recently published our thoughts and ideas in its lead article in the May 2012 issue. The link to the entire issue is here; our article is at pages 3 to 5. 

The article poses the question of just how viable issue certification may be in workplace class actions. We analyze a range of defense approaches, including: (i) Twombly defenses; (ii) Daubert considerations; (iii) manageability in the context of an “issues class;” (iv) adequate class definitions for an issues class; (v) problems with class notices; and (vi) unilateral remediation considerations for defense of an issues class.

In sum, we see multiple ways in which to cabin McReynolds to its unique facts, as well as a range of solid defense arguments against issue certification in typical workplace class actions.