Class Actions — Superiority — Circuit Split as to Whether, Where Predominance Is Lacking, Court May Certify Sub-Issues for Class Adjudication Even Though Claim as a Whole Does Not Satisfy Predominance — Does This Split Survive Dukes?
Oakley v. Verizon Commc’ns, Inc., 2012 U.S. Dist. LEXIS 12975 (S.D.N.Y. Feb. 1, 2012):
Where predominance is lacking, a Court may certify sub-issues for class adjudication; in Nassau County [In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006),] the Second Circuit acknowledged a split in Circuit caselaw, but sided with those courts that allow certification as to specific issues in a case, even when the claim as a whole does not meet the predominance requirement of Rule 23(b)(3). 461 F.3d at 225-27; see also Cordes & Co. Financial Services, Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 108-09 (2d Cir. 2007).
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