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:

  • Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).
  • Babineau v. Fed. Express Corp., 576 F.3d 1183 (11th Cir. 2009).
  • In re Dennis Greenman Secs Litig., 829 F.2d 1539 (11th Cir. 1987).
  • Larionoff v. U.S., 533 F.2d 1167 (D.C. Cir. 1976).
  • Daskalea v. Washington Humane Soc'y, 2011 U.S. Dist. LEXIS 88310 (D.D.C. 2011).
  • Hochstadt v. Boston Sci. Corp., 2010 U.S. Dist. LEXIS 41007 (D. Mass. 2010).
  • Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870 (N.D. Iowa 2009).
  • Cullen v. Whitman Med. Corp., 188 F.R.D. 226 (E.D. Pa. 1999).
  • United Brotherhood of Carpenters & Joiners of Am., Local 899 v. Phoenix Assocs. Inc., 152 F.R.D. 518 (S.D. W. Va. 1994).
  • Boggs v. Divested Atomic Corp., 141 F.R.D. 58 (S.D. Ohio 1991).

Further Reading:

Samuel Issacharoff, Governance & Legitimacy in the Law of Class Actions, 1999 Sup. Ct. Rev. 337.

Questions to Ask:

* Why don't plaintiffs seek certification more often under Rule 23(b)(1)? * How limited does a fund have to be to qualify under Rule 23(b)(1)(B)?