The Third Circuit recently clarified the standard for certifying an "issue class" in Russell v. Educ. Comm'n for Foreign Med. Graduates, 20-2128 (3d Cir. Sep. 24, 2021), providing "clear guidance," which was previously lacking in this Circuit, on necessary steps for certification under Rule 23(c)(4). While the decision permits certification of an "issue class" without satisfying the predominance requirement of Rule 23(b)(3 ) for the case as a  whole, the decision confirms that even an "issue class" cannot be certified without assuring that all the requirements of Rule 23 have been met.  

Russell was a case brought by a putative class of patients of a foreign-educated doctor against the Educational Commission for Foreign Medical Graduates ("the Commission")—the primary body for certifying graduates from foreign medical schools for acceptance into medical-residency programs in the United States—for negligent infliction of emotional distress. The Commission certified the application of a man who was using a false identity and, after being certified, had gained acceptance into a U.S. residency program and gone on to practice at a hospital in Maryland, before law enforcement discovered he had used fraudulent immigration documents and medical transcripts. The Commission then invalidated his certification, and his medical license was revoked. 

The District Court for the Eastern District of Pennsylvania certified an issue class under Rule 23 (c)(4) on the issues of whether the Commission owed and breached a duty, for purposes of the plaintiffs' negligent infliction claim. The Third Circuit panel vacated that decision, holding that the District Court had failed to follow the necessary steps for certification of an "issue class," and remanded for further proceedings. The panel held that in order to certify a class under Rule 23(c)(4), the District Court must first determine whether the requirements of Rule 23(a) have been met and that the issue sought to be certified satisfies one of the subsections of Rule 23(b), and then must consider the so-called Gates factors announced in Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011).