Page 4 - Complex Litigation

S4 | MONDAY, MAY 23, 2016 | Complex Litigation | NYLJ.COM

LIABILITY

DAMAGES

‘Tyson Foods’: Bifurcation

Taking Center Stage?

of whether the claim as a whole satisies used frequently to certify a class for liabil- issues together even where predomi-
BY JEREMY M. CREELAN the predominance t est.” In re Nassau ity purposes where damages cannot be nance would preclude class treatment
AND DANIEL H. WOLF
Cnty. Strip Search Cases, 461 F.3d 219, determined on a class-wide basis.1 Bifurca- of all issues. But parties can also beneit
221 (2d Cir. 2006). Bifurcation of liability tion can be pursued by motion or by the mightily. For certain individual plaintiffs B
and damages is permitted if “the proposed court sue sponte, and at any time during whose claims may be otherwise inappro-
ifurcation under Federal Rule of Civil
class satisies the requirements of Rule the litigation. U.S. Parole Comm’n v. Ger- Procedure 23(c)(4) is a critical, but
23(a) and (b) with respect to liability” aghty, 445 U.S. 388, 395 (1980); cf. Perez often under -appreciated, tool for
and “resolution of the particular com- v. Allstate Ins. Co., No. 11-CV-1812(JFB) both plaintiffs and defendants in class
mon issues would materially advance the (AKT), 2014 WL 4635745 (E.D.N.Y. Nov. JEREMY M. CREELAN is a partner and DANIEL H. action cases. The Second Circuit is one
WOLF is a senior associate at Jenner & Block in
disposition of the litigation as a whole.” 16, 2015).
New York. CHRISTINA J. GILLIGAN, an associate of the few circuits to have expressly held
Houser v. Pritzker, 28 F. Supp. 3d 222, Of course, bifurcation can conserve at the irm, assisted in the preparation of the Rule 23(c)(4) broadly permits bifurcation
254 (S.D.N.Y. 2014). Rule 23(c)(4) has been
judicial resources by resolving certain
article.
“to certify a class as to an issue regardless
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