Rule 23(b)(1) is the forgotten stepchild in Rule 23 jurisprudence. Rule 23(b)(3) gets attention because it’s where the money is. Rule 23(b)(2) is essential to civil rights groups seeking injunctions, and drew attention from plaintiffs’ lawyers seeking an end-run around what they viewed as Rule 23(b)(3)’s more stringent requirements. But case law on Rule 23(b)(1)(A) (which allows class actions to prohibit inconsistent adjudications) and (b)(1)(2) has been notably sparse.

Which is why many lawyers might not have caught one of the strange developments in the wake of the Supreme Court’s ruling in Dukes. As Dean Robert Klonoff–author of, among … Continue Reading

Rule 23(b)(1) covers zero-sum games, situations where finding in favor of one class member would necessarily require finding against another class member later. This can be either because one class member would receive rights that would infringe on another’s rights (like in riparian rights cases), or because the damages fund is limited, so that any award to one class member would limit the awards to another. Despite the intuitive application of these two cases, plaintiffs rarely seek certification under this subsection.

Ten Cases to Educate You:

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 There is no question that Wal-Mart Stores, Inc. v. Dukes will be the most-cited case in class-action practice for years to come. But before Dukes, Amchem Products, Inc. v. Windsor was the Supreme Court’s definitive announcement of its interpretation of Rule 23 standards.

What’s interesting about the case is that it involved a class-action settlement. The Windsor (before, Georgine) case was never supposed to be litigated. Instead, it was a settlement class. The proposed settlement class was a response to the asbestos litigation crisis (courts in the 1990s had been swamped by personal injury claims related to asbestosisContinue Reading

Time is the ultimate budget constraint. Even the best of us only gets 24 hours a day. And sometimes, strategic decisions get made without perfect amounts of time. For class-action lawyers, this constraint is particularly clear in “rocket dockets” like the Eastern District of Virginia where deadlines are foreshortened and discovery can be massive.

But while we all have an intuitive feel for how time is a scarce resource for litigators, what does that actually mean when litigating? For one answer, we can look at Ortiz v. Fibreboard Corp., 527 U.S. 815, 863 (1999).

Issued more than a … Continue Reading