## Facts

- Numerous plaintiffs alleged that in utero exposure to Bendectin, a prescription drug for morning sickness, caused birth defects.
- Many federal actions were centralized for coordinated pretrial proceedings in an MDL in the Southern District of Ohio under 28 U.S.C. § 1407.
- The district court appointed a plaintiffs’ lead counsel committee and managed consolidated pretrial proceedings.
- After global settlement discussions began, the district court certified a mandatory, non–opt-out settlement class under Rule 23(b)(1)(A) and Rule 23(b)(1)(B), with subclasses.
- A group of plaintiffs and their counsel objected to being bound by a mandatory class and petitioned the Sixth Circuit for a writ of mandamus to vacate the certification order.

## Issues

1. Whether mandamus was an appropriate vehicle to review and correct a district court’s Rule 23(b)(1) mandatory class certification in an ongoing MDL.
2. Whether Rule 23(b)(1)(A) was satisfied where the asserted risk was inconsistent outcomes across many individual tort trials.
3. Whether Rule 23(b)(1)(B) was satisfied on a “limited fund” theory without developed factual findings showing the defendant’s resources were genuinely limited.
4. Whether imposing a non–opt-out settlement class without an adequate Rule 23 basis improperly prejudiced objecting plaintiffs’ ability to control their claims.

## Decision

- The court granted the petition for a writ of mandamus.
- The court held the district court’s certification of a mandatory class under Rule 23(b)(1)(A) and (b)(1)(B) was clearly erroneous.
- The court ordered the district court to vacate its Rule 23(b)(1) class certification order.

## Legal Principles

- Mandamus may issue to correct a clearly erroneous class certification order when there is no adequate alternative remedy and the order threatens prejudice not readily cured by later appeal.
- Rule 23(b)(1)(A) requires a risk of incompatible standards of conduct for the defendant; the possibility of inconsistent tort verdicts or varying damages awards is insufficient.
- Rule 23(b)(1)(B) “limited fund” certification requires concrete factual findings establishing that available assets are truly limited and that individual adjudications would, as a practical matter, dispose of other claimants’ interests.
- Mandatory, non–opt-out settlement classes demand careful compliance with Rule 23 because they materially restrict individual plaintiffs’ control over litigation and settlement choices.

## Conclusion

The Sixth Circuit used mandamus to halt an improperly certified mandatory settlement class in a mass-tort MDL, holding that neither inconsistent verdict concerns nor an undeveloped “limited fund” rationale justified non–opt-out treatment under Rule 23(b)(1).


In re Bendectin Prods. Liab. Litig., 749 F.2d 300 (6th Cir. 1984)