## Facts

- Nassau County Correctional Center (NCCC) applied a blanket policy of strip searching all newly admitted misdemeanor detainees upon entry.
- The policy operated without individualized reasonable suspicion.
- Named plaintiffs were arrested on misdemeanor charges and strip searched pursuant to the policy.
- Plaintiffs brought § 1983 claims alleging the policy violated the Fourth Amendment and sought class-wide relief.
- By the time of the appeal, controlling circuit precedent treated suspicionless strip searches of misdemeanor detainees as unconstitutional.

## Issues

1. Whether Rule 23(c)(4)(A) permits certification of a Rule 23(b)(3) class limited to liability issues even if the overall claims (including damages) do not satisfy predominance.
2. Whether defendants’ concession of liability eliminates common issues such that predominance cannot be met for a liability-only class.
3. Whether, for a liability-only class challenging a uniform strip-search policy, common questions predominate over individualized issues (including defenses and damages).

## Decision

- The Second Circuit vacated the orders denying class certification and remanded.
- Rule 23(c)(4)(A) authorizes issue-class certification (including liability-only certification) even where predominance may be lacking for the case as a whole.
- Predominance for an issue class is assessed with respect to the certified issues, not by importing individualized damages questions to defeat certification.
- A defendant’s liability concession does not remove common liability questions from the predominance analysis or allow avoidance of class treatment through unilateral litigation tactics.
- Common questions regarding the existence, uniform application, and constitutionality of the blanket policy predominated over individualized questions reserved for later proceedings.

## Legal Principles

- Rule 23(c)(4)(A) permits maintaining a class action “with respect to particular issues,” including a liability-only class.
- For a Rule 23(b)(3) issue class, predominance is evaluated at the level of the issues proposed for class treatment.
- Individualized damages questions do not necessarily defeat predominance where liability turns on proof of a uniform policy or practice.
- Predominance analysis should reflect the nature of the claims and issues that would ordinarily be litigated; a defendant cannot defeat certification by conceding liability to fragment or erase common issues.
- Potential individualized defenses may exist but do not preclude certification where the central liability questions are common and dominant.

## Conclusion

The Second Circuit required reconsideration of class certification because Rule 23 allows a liability-only class focused on a uniform strip-search policy, and predominance cannot be defeated by individualized damages issues or by defendants’ strategic concession of liability.


In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006)