Abstract: Rule 23(b)(1)(A) allows district courts to certify a class if individual lawsuits would create incompatible standards of conduct for defendants. Thus, it is well settled that the defendant may consent to class certification under Rule 23(b)(1)(A). It is less clear, however, what should happen if a defendant does not feel that individual lawsuits would establish incompatible standards of conduct. Many district courts have held that the defendant may veto class certification merely by objecting to it. The issue, however, currently remains unresolved. In this Article, I argue that defendants may indeed veto class certification under Rule 23(b)(1)(A). I discuss the text of Rule 23(b)(1)(A), the Advisory Committee's Note to Rule 23(b)(1)(A), and the cases that have interpreted Rule 23(b)(1)(A). Because the defendant is the principal beneficiary of Rule 23(b)(1)(A), the defendant should retain the choice to seek or avoid class certification under that subsection. This Article discusses a timely yet unresolved issue in class action litigation. It contains a thorough analysis of the issues surrounding and the policies underlying the veto power. It also includes a thoughtful response to arguments made by those who oppose the veto power.
Publication Year: 2005
Publication Date: 2005-07-01
Language: en
Type: article
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