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109 Minn. L. Rev. Headnotes 1 (2024)

handle is hein.journals/headnotpan109 and id is 1 raw text is: Essay Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do Aaron D. Van Oort and John L. Rockenbacht INTRODUCTION The distinction between common and individual issues is the single most important concept in the modern class action, and it is the one that most bedevils courts in practice. Rule 23(a)(2) of the Federal Rules of Civil Procedure makes the exist- ence of at least one common issue a prerequisite for every class action,' and the predominance of common issues over individual ones is a prerequisite for class actions seeking money damages under Rule 23(b)(3).2 Ever since Rule 23 was amended to take its modern form in 1966, courts have therefore been required to classify issues as common or individual. Yet to this day, they have not settled on a uniform approach for doing so, let alone explained why that approach is correct. To advance and clarify the law, we propose that courts dis- tinguish between common and individual issues in Rule 23 class actions by asking what a reasonable jury could do. An individ- ual issue is an issue that a reasonable jury could resolve differ- ently for different members of the proposed class because it could find legally material, factual differences among them. A com- mon issue, conversely, is an issue that a reasonable jury would have to resolve the same for all members of the proposed class because it could not find any legally material, factual differences among them. The facts that are legally material in a given case t Aaron D. Van Oort is co-chair of the Appellate Practice at Faegre Drinker. John L. Rockenbach is an associate at the same firm. The authors would like to thank the Minnesota Law Review for publishing this piece. Copy- right 0 2024 by Aaron D. Van Oort and John L. Rockenbach. 1. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011). 2. Comcast Corp. v. Behrend, 569 U.S. 27, 33-34 (2013). 1

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