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Just as water will find a way to reach its level, creative lawyers, when faced with obstacles to traditional routes to class certification, will find a way to plead their individual cases as class actions. The common perception is that it has become increasingly difficult to certify class actions for damages under Federal Rule of Civil Procedure 23(b)(3) and its state equivalents as courts, in the wake of the U.S. Supreme Court’s mandate, have increasingly focused on that rule’s requirement that issues common to the class actually predominate over issues unique to individual class members. See Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 622-24 (1997). Often courts applying Rule 23(b)(3) demand a “trial plan” demonstrating not only how the common issues will be managed, but also how any individual issues relating to various class members actually will be tried. See, e.g., Southwestern Refining Co. v. Bernal, 22 S.W.3d 425 (Texas 2000). Lawyers seek alternative routes to class certification Faced with this obstacle, lawyers look to the other provisions for an alternative path to certification. Rule 23(b)(1)(A) provides that a class may be certified if the generally applicable requirements of Rule 23(a) are satisfied and “the prosecution of separate actions by or against individual members of the class would create a risk of . . . inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.” On its face, this standard appears much easier to satisfy than Rule 23(b)(3). Take an ordinary insurance policy case for damages, replead it as seeking a “declaration” regarding the policy with damages as merely “incidental” relief, and suddenly you have a claim that would appear to present the possibility of establishing incompatible standards of conduct, thus meeting Rule 23(b)(1)(A). But looks can be deceiving. Such a reading of the rule would ignore its historical antecedents, as well as the thorny constitutional problems that would be raised for absent class members who would be bound by the class judgment. A class certified under Rule 23(b)(1)(A) is a mandatory class. Absent class members cannot opt out, as they can in a 23(b)(3) damages class. It would be ironic if courts were to read Rule 23(b)(1)(A) as making it easier to bind absentees against their will than it is to certify a class in which absentees may opt out. The U.S. Supreme Court has admonished that in interpreting Rule 23-and particularly the mandatory class provisions-one must understand its history and hew closely to its historical application. Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). As the court noted in Ortiz, “class actions as we recognize them today developed as an exception to the formal rigidity of the necessary parties rule in equity,” which required all persons materially interested in a suit to be parties to the action. Id. at 832. When the current version of Rule 23(b) was drafted in 1966, the advisory committee was attempting to catalogue historic patterns of representative litigation in functional terms. Thus, the court explained, one should look to the historic patterns and characteristics of classes under the various provisions of 23(b), and should treat them as presumptively necessary to certify a mandatory class even though the text of the rule may appear open to a more lenient interpretation. Id. at 842. Such an approach not only honors the drafters’ intent, but also avoids a potential conflict with the Rules Enabling Act and with the constitutional rights of absent class members who will be bound by the judgment. Rule 23(b)(1)(A) was designed to protect against the risk of prejudice to the “party opposing the class,” which is commonly the defendant. The advisory committee note makes this plain. All of its examples focus on the perspective of the defendant and obviating the “actual or virtual dilemma” it would confront from “incompatible standards” with which it would be impossible to comply. None focuses on the inconsistency of judgments from the plaintiffs’ perspective. Importantly, the examples and the cases cited by the advisory committee do not involve damages, but instead focus solely on standards of conduct. Recent cases addressing Rule 23(b)(1)(A) highlight the fact that this provision is often pleaded as a backup to classes pleaded under the other provisions of Rule 23(b). Few lawyers appear to rest their hopes of class certification on Rule 23(b)(1)(A) alone. But courts have been more reluctant to certify mandatory classes under Rule 23(b)(1)(A), and a few important themes have emerged. First, many courts have narrowly construed the rule to apply only when a defendant would not be able to comply with the terms of one order without violating the terms of another. See, e.g., Zinser v. Accufix Research Inst. Inc., 253 F.3d 1180, 1195 (9th Cir.), modified & reh’g en banc denied, 273 F.3d 1266 (9th Cir. 2001); Peltier Enters. Inc. v. Hilton, 51 S.W.3d 616, 620 (Texas App.-Tyler 2000, pet. denied). Many courts have held that Rule 23(b)(1)(A) cannot apply to actions for money damages because the mere obligation to pay money is not the type of incompatible conduct that the rule contemplates. See Klender v. United States, 218 F.R.D. 161 (E.D. Mich. 2003). Damages actions must instead be brought under Rule 23(b)(3). Funliner of Alabama LLC v. Pickard, 2003 WL 21205391, at *6-*7 (Ala. May 23, 2003). Second, courts have required that the risk of inconsistent adjudications be real and imminent, not just hypothetical or speculative. See, e.g., Integra Realty Res. Inc. v. Fidelity Capital Appreciation Fund, 354 F.3d 1246 (10th Cir. 2004); In re Paxil Litig., 212 F.R.D. 539 (C.D. Calif. 2003); In re St. Jude Med. Inc. Silzone Heart Valves Prod. Liab. Litig., 2003 WL 1589527 at *17 (D. Minn. March 27, 2003). For example, in In re Paxil, plaintiffs sought to certify a class to seek injunctive relief to force the defendant to set up an “information clearinghouse” that the class could consult about various health effects attributed to the drug. The court refused to certify the class under Rule 23(b)(1)(A), observing that it was “impossible to tell how [the defendant] might be required [by other courts] to discharge this duty from state to state or court to court.” 212 F.R.D. at 553. The St. Jude court similarly found that the plaintiffs’ requested medical monitoring relief did not necessarily mean that, if adjudicated by multiple courts, the defendant would be unable to comply with all court orders. 2003 WL 1589527, at *17. Moreover, the court observed that Rule 23(b)(1)(A) was designed to protect the defendant, and if the defendant did not desire a class action to protect itself, then there is authority for refusing to certify the class under the rule. Id. Some courts have gone so far as to suggest that when the amount in controversy is so low that people ordinarily would not sue to enforce the alleged right, then there is no imminent risk of inconsistent adjudications at all. See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 n.4 (1974). Third, some courts have explained that inherent in Rule 23(b)(1) is a “cohesion” requirement similar to the “predominance” requirement of Rule 23(b)(3). Harris v. Purdue Pharma L.P., 218 F.R.D. 590, 598 (S.D. Ohio 2003). These courts refuse to certify classes under Rule 23(b)(1)(A) when there are individual issues that would have to be addressed at trial. See Perez v. Metabolife Int’l Inc., 218 F.R.D. 262, 274-75 (S.D. Fla. 2003); Lichoff v. CSX Transp. Inc., 218 F.R.D. 564, 576 (N.D. Ohio 2003); Nelson v. IPALCO Enters. Inc., 2003 WL 23101792 (S.D. Ind. Sept. 30, 2003). Fourth, a number of courts have rejected the twin goals of consistency in judgments and judicial efficiency that have been advanced to support the use of Rule 23(b)(1)(A) to obtain one class judgment that applies to the entire group. These courts have explained that proceeding in individual cases promotes the development of a body of law that, while it might result in some inconsistent individual judgments, will often later move toward a reasoned consensus. See, e.g., Henry Schein Inc. v. Stromboe, 102 S.W.3d 675, 691-92, 700 (Texas 2003); cf. In re Bridgestone/Firestone Inc., 288 F.3d 1012, 1020 (7th Cir. 2002). Certifying a mandatory class to prevent inconsistent individual judgments prematurely cuts off this development in the law. Fifth, courts have been concerned that certifying a mandatory class deprives absent class members of constitutional rights, such as the right to a jury trial. See, e.g. Sitton v. State Farm Mut. Auto. Ins. Co., 63 P.3d 198, 203-04 (Wash. Ct. App. 2003). A few courts have recently certified classes under rule These themes counsel for a narrow construction of Rule 23(b)(1)(A) in line with its historic precedents. There are, however, courts that recently have certified mandatory classes under the rule. For example, a federal court recently certified a class under Rule 23(b)(1)(A) to challenge the constitutionality of a statute preventing convicted sex offenders from living within 2,000 feet of a school. Doe v. Miller, 216 F.R.D. 462 (S.D. Iowa 2003). And a bankruptcy court recently granted the motion of an estate’s plan administrator to certify a class of defendants under the rule to adjudicate whether certain unsecured claims may be subordinated. In re Deho Inc., 298 B.R. 206 (Bankr. D. Mass. 2003). Historically, class allegations under Rule 23(b)(1)(A) often have been “backup” arguments that have received little reasoned attention by the parties and the courts. As certification under 23(b)(3) is perceived to be more difficult, however, one may expect Rule 23(b)(1)(A) arguments to receive greater attention. The proliferation of cases addressing mandatory classes under this rule highlights the need to understand it in its historical context and to be mindful of the effects that certification of a mandatory class may have on absent class members. J. Russell Jackson is a partner in the complex mass torts and insurance litigation group at New York’s Skadden, Arps, Slate, Meagher & Flom. He practices primarily in the defense of class actions in products liability litigation.

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