REVISED, February 17, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40635

_____________________

IN RE ASBESTOS LITIGATION,

JAMES FLANAGAN, DAVID H. MIDDLETON, EDEE COCHRAN, ESTEBAN

YANEZ ORTIZ, JOHN R. ALLGOOD, HENRY WILLIAM EVERS, LESTER

EUGENE TAYLOR and SAFETY NATIONAL CASUALTY CORPORATION,

Appellants,

versus

GERALD AHEARN, JAMES MCADAMS DENNIS, CHARLES W. JEEP,

JAMES DRAKE, JUANITA DRAKE, JAMES ELLISON, ROLAND

DEARBORN, JUDITH DEARBORN, KERWIN BUTCHER, DIR., WORKERS

COMP., Director, Office of Workers’ Compensation

Programs, U.S. Dept. of Labor, PAUL COCHRAN, IDA BECK,

MARION BEHEE, LONGSHORE INTERVENOR, WILLIAM JAMES

MITCHELL, FIBREBOARD CORPORATION, BETHLEHEM STEEL

CORPORATION, CONTINENTAL CASUALTY COMPANY, PACIFIC

INDEMNITY, FRANCIS MCGOVERN, OWENS-ILLINOIS, INC., PENN

MUTUAL LIFE INSURANCE COMPANY, COLUMBIA CASUALTY COMPANY,

CNA CASUALTY COMPANY OF CALIFORNIA, CELOTEX CORP., DANIEL

HERMAN RUDD JR., on behalf if themselves and others

similarly situated, JOHN HANSEL, on behalf of themselves

and others similarly situated,

Appellees.

_______________________________________________________

Appeals from the United States District Court for

the Eastern District of Texas

_______________________________________________________

January 27, 1998

Before REAVLEY, DAVIS and SMITH, Circuit Judges.

PER CURIAM:
In our prior opinion, we affirmed the judgment below, which

approved class action settlements of asbestos-related claims

involving Fibreboard Corporation. In re Asbestos Litigation, 90

F.3d 963 (5th Cir. 1996), vacated, 117 S. Ct. 2503 (1997). The

Supreme Court vacated our judgment and remanded the case for

reconsideration in light of Amchem Products, Inc. v. Windsor, 117

S. Ct. 2231 (1997). After oral argument and reconsideration, we

can find nothing in the Amchem opinion that changes our prior

decision. We again affirm.

 There are two controlling differences between this case and

Amchem. First, this class action proceeded under Rule 23(b)(1);

Amchem was a Rule 23(b)(3) case. Second, there was no allocation

or difference in award, according to nature or severity of injury,

in the present case as there was in Amchem; in the case here all

members of the future claimant class are treated alike. Individual

damage awards will subsequently be decided according to individual

damages. 

The district court made extensive findings and found,

specifically, that separate actions by members of the class would

create a risk of adjudications with respect to individual members

of the class which would as a practical matter be dispositive of

the interests of the other members not parties to the adjudications

or substantially impair or impede their ability to protect their

interests. The language of the district court matches the language

of Rule 23(b)(1)(B). No one has contested that finding of the

district court, probably because it is incontestable. 
3

The Supreme Court stated in Amchem that a settlement class

action, like all federal class actions, cannot proceed unless the

requirements of Rule 23(a) are met, irrespective of whether the

proposed settlement is deemed fair under Rule 23(e). We detailed

in our prior opinion our agreement with the thorough study and

conclusions by the district court, satisfying the requirements of

class certification under Rule 23(a). All members of the class,

and all class representatives, share the common interests:

suffering harm from asbestos exposure and seeking equitable

distribution of compensation from limited funds. None of the

uncommon questions, abounding in Amchem, exist in the present case.

The only conflict between members of the future claimant class

could be competition for larger and earlier shares of available

money, but that is precisely the reason for Rule 23(b)(1)(B) and

the problem it is designed to solve where the money is limited.

That conflict or competition is controlled for the benefit of all

members of the class. It follows that the lawyer representing the

class serves only common interests of the class. 

The judgment of the district court is 

AFFIRMED.

ENDRECORD 
 

1 In published form, the majority opinion will consume only about a

page. Accordingly, I will not burden the reader with page references.

 

2 The acronym “GVR” refers to the Supreme Court's practice of granting

certiorari, vacating, and remanding for further consideration in light of some

intervening development. The practice is thoroughly explained in Lawrence v.

Chater, 516 U.S. 163, 165-75 (1996) (per curiam). See Carter v. Johnson,

131 F.3d 452, 457 n.2 (5th Cir. 1997).

 

3 See Flanagan v. Ahearn (In re Asbestos Litig.), 90 F.3d 963 (5th Cir.

1996) (“Ahearn I”), vacated, 117 S. Ct. 2503 (1997).

JERRY E. SMITH, Circuit Judge, dissenting:

In a five-paragraph unsigned opinion, the panel majority

states that “we can find nothing in the Amchem opinion that changes

our prior decision.”1 Like that prior decision, the new majority

opinion overrides the substantive and procedural rights of large

groups of asbestos claimants. Because this court cannot properly

bless a settlement that Congress has not authorized and the

Constitution forbids, I respectfully dissent.

I.

Even if, arguendo, the law that informs this case was not

plain before the Court decided Amchem Prods. v. Windsor, 117 S. Ct.

2231 (1997), that law is evident now. It is not surprising that

the Court issued a “GVR”2 requiring this court to reconsider the

majority's now-vacated opinion3 in light of Amchem. The Court

issues a GVR order “[w]here intervening developments . . . reveal

a reasonable probability that the decision below rests upon a

premise that the lower court would reject if given the opportunity

for further consideration . . . .” Lawrence, 516 U.S. at 167.

I believe the remand in this immensely important case merits more
 

4 For a recitation of the facts and proceedings, the reader is referred to

the prior panel majority and dissenting opinions in this case. See Ahearn I,

90 F.3d at 968-74; id. at 993-98 (Smith, J., dissenting).

5

thorough consideration than is reflected in the majority's terse

per curiam treatment.

II.

Like the district court a quo, the district court in Amchem

had approved a gigantic settlement, including a complex scheme

for processing claims administratively, in an effort to achieve

efficiency and fairness in the resolution of massive numbers of

asbestos claims without resort to individual trials.4 The Amchem

Court rejected the settlement because it plainly is not

authorized by the applicable rules and statutes:

The argument is sensibly made that a nationwide

administrative claims processing regime would provide

the most secure, fair, and efficient means of

compensating victims of asbestos exposure. Congress,

however, has not adopted such a solution. And [FED.

R. CIV. P.] 23, which must be interpreted with fidelity

to the Rules Enabling Act [, 28 U.S.C. § 2072(b),] and

applied with the interests of absent class members in

close view, cannot carry the large load . . . the

District Court heaped upon it. As this case

exemplifies, the rulemakers' prescriptions for class

actions may be endangered by “those who embrace [Rule
 

5 See, e.g., Amchem, 117 S. Ct. at 2252 (“Because we have concluded that

the class in this case cannot satisfy the requirements of common issue

predominance and adequacy of representation, we need not rule, definitively, on

the notice given here. . . . [H]owever . . . we recognize the gravity of the

(continued...)

6

23] too enthusiastically just as [they are by] those

who approach [the rule] with distaste.”

117 S. Ct. at 2252 (footnote and citation omitted, last three

brackets in original).

The lesson is that, regardless of the benefits a particular

settlement might seem to confer, in terms of “the greatest good

for the greatest number” of parties, the niceties of statutory

and constitutional constraints must be observed. Thus, while

parties and district courts can be praised for their

resourcefulness in formulating settlements that resolve mass tort

litigation, the statutory and constitutional constraints, as the

Amchem Court observed, “serve to inhibit appraisals of the

chancellor's foot kindSSclass certifications dependent upon the

court's gestalt judgment or overarching impression of the

settlement's fairness.” Amchem, 117 S. Ct. at 2248.

This general theme, expressed forcefully in Amchem, is

reinforced by the Court's discussion of specific issues, most of

which are highly relevant to the instant case. While Amchem

focuses on the issues of predominance and adequacy of

representation, the Court emphasizes that these are not the only

considerations a court must address when certifying a settlement

class.5
(...continued)

question . . . .”).

7

III.

Before discussing the issues dealt with directly in Amchem,

I note that this is not, as the majority would have it, a

“limited fund” case. I will show, below, that the majority's

analysis is fatally flawed even if we treat this matter as

involving a limited fundSSa question not present in AmchemSSbut I

adhere to my previously-stated view that Fibreboard and its

insurers do not colectively constitute a “limited fund” that

would allow class certification under FED. R. CIV. P. 23(b)(1)(B). 

See Ahearn I, 90 F.3d at 1002 n.17 (Smith, J., dissenting). 

This issue alone should be dispositive of the matter, for if

this class cannot go forward as a “limited fund” class, it would

require certification under rule 23(b)(3) and would then be

subject to the requirements of predominance and superiority. 

Amchem would specifically prevent class certification, for here,

we have precisely the same disparities that destroyed cohesion in

the Amchem class:

“Class members were exposed to different

asbestos-containing products, for different amounts of

time, in different ways, and over different periods. 

Some class members suffer no physical injury or have

only asymptomatic pleural changes, while others suffer

from lung cancer, disabling asbestosis, or from 

mesothelioma . . . . Each has a different history of

cigarette smoking, a factor that complicates the

causation inquiry. 

“The [exposure-only] plaintiffs especially share

little in common, either with each other or with the

presently injured class members. It is unclear whether
 

6 The panel majority's statement that “[n]o one has contested that

finding of the district court” is simply inaccurate: Briefs in the original

appeal and on remand vigorously contest the “limited fund” characterization.

 

7 Rule 23(b)(1)(B) does not mention a “limited fund” but, instead,

allows class certification where individual adjudications “would as a

practical matter . . . substantially impair” the ability of class members to

protect their interests. Thus, the class members' interests might be in

mineral reserves, water rights, or a fixed amount of money. The rule

necessarily contemplates the allocation of a limited resource, however, for

only where the class members' interests are to some degree mutually exclusive

will the individuals' litigation “substantially impair” the others' rights. 

Thus, where the remedy sought is money damages, the paradigm is of a “limited

fund” to be distributed for the class members' benefit. 

Courts have been confronted with at least two different theories under

which rule 23(b)(1)(B) would apply to cases that do not fit into this “limited

fund” paradigm: the “constructive bankruptcy” and the “punitive damage

overkill” theories. See Arthur R. Miller and David Crump, Jurisdiction and

Choice of Law in Multistage Class Actions after Phillips Petroleum Co. v.

Shutts, 96 YALE L.J. 1, 42 (1986). The instant putative class seeks

certification on the basis of “constructive bankruptcy.” That is, the

claimants theorize that if Fibreboard continues to pay asbestos settlements

and judgments, it will eventually go bankrupt, and this, as a practical

matter, will dispose of later-brought claims.

8

they will contract asbestos-related disease and, if so,

what disease each will suffer. They will also incur

different medical expenses because their monitoring and

treatment will depend on singular circumstances and

individual medical histories.”

Amchem, 117 S. Ct. at 2250 (quoting Georgine v. Amchem Prods.,

83 F.3d 610, 626 (3d Cir. 1996)). In Amchem, as here,

differences in state law compound these disparities. Id. 

The panel majority concludes that the district court's

finding that Fibreboard is a “limited fund” is “incontestable”.6

This is error, for rule 23(b)(1)(B) cannot reasonably be read to

allow a “limited fund” class where, as here, there is and was no

“fund” except that which was established by the settlement

itself.7 Congress long ago established a comprehensive

bankruptcy scheme to govern situations in which a company is

unable to pay its debts. Here, the district court speculated
 

8 For example, in In re Joint E. & S. Dist. Asbestos Litig., 982 F.2d 721,

742-43 (2d Cir. 1992), modified on reh'g sub nom. In re Findley, 993 F.2d 7

(2d Cir. 1993), the underlying trust fund had been established during the

asbestos defendant's bankruptcy reorganization. It was entirely proper, then,

for the claims against that fund to be litigated en masse as a “limited fund”

class. In In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285 (2d Cir. 1992),

the defendant had established a $350 million fund in settlement of an SEC

enforcement action, and subsequently went bankrupt. This, also, involved an

actual “fund” that was “limited”. And in Hartford Life Ins. Co. v. Ibs, 237 U.S.

(continued...)

9

that, at some point in the future, Fibreboard may be unable to

pay all of its asbestos tort creditors. The court then, in

effect, discharged the debt owed that particular class of

creditors while avoiding the procedural protections of the

bankruptcy code. This is manifestly incorrect.

A.

The panel majority gives great deference to the district

court's factual finding that the maintenance of individual

actions by class members might be dispositive of the interests of

other parties. The majority accurately notes that “the language

of the district court matches the language of Rule 23(b)(1)(B),”

but the enunciation of these magic words cannot insulate the

underlying legal determination from review, any more than would a

trial court's factual finding that a defendant is liable. As a

matter of law, this “finding,” which is overtly conclusory, is

incorrect.

The class proponents cite cases in which appellate courts

have upheld “limited fund” class certifications under rule

23(b)(1)(B), but these cases invariably involve a “fund” that,

unlike an ongoing concern, is necessarily limited.8 These
(...continued)

662 (1915), there was a true “fund” against which the individual causes of action

arose: a mortuary fund held by Hartford for the benefit of thousands of members.

 

9 Rules Advisory Committee, Notes to 1966 Amendments to Rule 23, 39 F.R.D.

69, 101; see also 1 NEWBERG ON CLASS ACTIONS § 4.09, at 4-31 (noting that “the most

common use of subsection (b)(1)(B) class actions is in limited fund cases”)

 

10 Take, as a random example, the admiralty case of Grubart v. Great

Lakes Dredge & Dock Co., 513 U.S. 527 (1994), in which the contested issue was

whether the Limitation on Vessel Owners' Liability Act, 46 U.S.C. § 181 et

seq., should apply. If it did, all the victims of the Chicago flood would be

limited in their recovery to the value of a few marine vessels; but if it did

not, the victims of the flood could recover in personam against the defendant

and its insurers. See Grubart, 513 U.S. at 531.

10

applications of rule 23(b)(1)(B) are appropriate, for the rule

obviously applies where “claims are made by numerous persons

against a fund insufficient to satisfy all claims.”9 Professor

Newberg states:

A limited fund exists when a fixed asset or piece of

property exists in which all class members have a

preexisting interest . . . . Classic illustrations

include claimants to trust assets, a bank account,

insurance proceeds, company assets in a liquidation

sale, proceeds of a ship sale in a maritime suit, and

others. 

1 NEWBERG ON CLASS ACTIONS § 4.09, at 4-33 (emphasis added). Here,

there is neither a fixed asset nor property in which the putative

class members have an interest. Their claims are made not

against a “fund”, but against Fibreboard itself.

It is fundamental that an injured party has an in personam

claim against the person responsible for his injury.10 Such a

claim is not limited by the amount of insurance carried by a

defendant, nor by its liquid assets or net worth. A final

judgment against the defendant becomes much like any other debt,
 

11 Also, as I note below in part III.B, Fibreboard has been purchased by

Owens-Corning, whose assets could be available, in appropriate circumstances,

to satisfy tort judgments. Finally, Fibreboard has announced that it is suing

the tobacco industry for recovery in the nature of contribution, arguing that

injuries caused by smoking aggravate injuries caused by asbestos. See

Asbestos Maker Sues Tobacco Industry, N.Y. TIMES, Nov. 8, 1997, at D5. Any

sums thus recovered will be available to pay tort judgments.

 

12 I note the indeterminacy inherent in this speculation: At what point

does a “fund” become “limited”? A district court must assess the probability

and likely amount of the claimants' recovery, and balance this against its

estimation of the defendant's future ability to pay. 

11

able to be collected from any of a defaulting debtor's existing

or after-acquired assets.11 

Here, the panel majority has approved replacing the

claimants' state law causes of action in personam with a claim

against an artificially-imposed “limited fund.” To be sure, the

settlement does establish a limited fund: a res from which

payment for all claims must be distributed. Indeed, for

Fibreboard, the entire point of this settlement was to obtain a

limit on liability that theretofore had been, quite literally,

limitless. But that does not transform the plaintiffs' in

personam claims against Fibreboard into in rem claims against the

newly-established fund.

It is possible that the mounting costs of defending asbestos

claims and paying asbestos judgments would have driven Fibreboard

to take refuge in bankruptcy court.12 This would be unfortunate 

for Fibreboard's shareholders and contract creditors, but it

would not be catastrophic: The Johns-Manville Corporation went

through an apparently successful bankruptcy reorganization and

spun off the Manville Personal Injury Settlement Trust in order

to satisfy its tort liabilities. See In re Joint E. & S. Dist.
 

13 See In re Keene Corp., 14 F.3d 726, 732 (2d Cir. 1993), in which the

court noted:

Indeed, the process contemplated by [class proponents] mirrors a

bankruptcy proceeding. The finding of a limited fund corresponds to

a finding of insolvency. The preliminary injunction serves much the

same function as the automatic stay under Section 362(a) of the

Bankruptcy Code. 11 U.S.C. § 362(a) (1988). The class

representatives correspond to creditors' committees in Chapter 11 

proceedings. See 11 U.S.C. § 1102 (1988). The proposed mandatory

class settlement mirrors a reorganization plan and "cram-down," see

11 U.S.C. § 1123, 1129(b), followed by a discharge, 11 U.S.C.

§ 1141(d).

Id at 732 (citation omitted).

12

Litig., 982 F.2d at 725. And in any case, the specter of

eventual bankruptcy does not now render this ongoing concern a

“limited fund.” Up until the time of a bankruptcy discharge,

tort creditors have a legally unlimited font of money from which

they may demand their due. 

This proposed settlement class is in fact “a self-evident

evasion of the exclusive legal system established by Congress for

debtors to seek relief.”13 But here, the “constructive

bankruptcy” is reached without the protections of the Bankruptcy

Code: procedural protectionsSSsuch as the creditors' vote on

settlementsSSand substantive protectionsSSsuch as tort creditors'

preferred status. It is, moreover, a colossal bailout for

Fibreboard's shareholders that would not occur in bankruptcy. 

Instead of approving this evasion of the mechanisms established

by the legislative branch, we should be mindful that “the

function of federal courts is not to conduct trials over whether

a statutory scheme should be ignored because a more efficient
 

14 Commentators have questioned the propriety of using rule 23(b)(1)(B)

as a means of avoiding bankruptcy proceedings. See, e.g., 3 NEWBERG ON CLASS

ACTIONS § 17.15A, at 3S-16 (3d ed. Supp. 1994) (opining that “a 23(b)(1)(B)

class should not serve as a substitute for bankruptcy proceedings”); see also,

e.g., John C. Coffee, Jr., Class Wars: The Dilemma of Mass Tort Class Actions,

95 COLUM. L. REV. 1343, 1382-83, 1458-59 (1995); Richard Marcus, They Can't Do

That, Can They? Tort Reform Via Rule 23, 80 CORNELL L. REV. 858, 880-81

(1995); William Schwarzer, Settlement of Mass Tort Class Actions: Order Out of

Chaos, 80 CORNELL L. REV. 837, 840 (1995).

13

mechanism can be fashioned by judges.” In re Keene, 14 F.3d at

733.14

The panel majority thus supplants the bankruptcy law with a

judge-made system to extinguish the rights of tort creditors. 

And the panel ignores the obvious application of rule 2 3

(b)(1)(B), which does not allow a defendant to limit its

substantive liability through the creation of a limited fundSSas

was done hereSSbut rather is a mechanism for the equitable

distribution of a pre-existing fund. 

But perhaps most striking is the panel's apparent disregard

for principles of federalism and the limits of the Rules Enabling

Act. Contrary to the Congressional mandate that the rules of

civil procedure not “abridge, enlarge, or modify any substantive

right,” 28 U.S.C. § 2072, this court now takes away state law

rights of those who have been damaged in tort and allows the

asbestos victims only a pro-rata share in an artificially-limited

settlement fund. As a matter of law, this class cannot be

certified under rule 23(b)(1)(B).

B.
14

Even assuming, arguendo, that rule 23(b)(1)(B) allows

certification of a “limited fund” class of in personam claimants

against a solvent ongoing concern and its solvent insurers, the

panel majority erred in accepting the district court's factual

decision that this is a limited fund. Fibreboard was recently

acquired by Owens-Corning in a tender offer for about $515

million cash, plus $85 million of assumed debt. See Andrea

Puchalsky, Owens-Corning to Buy Fibreboard for $515 million, WALL

ST. J., May 29, 1997 at A4. This stands in contrast to the

district court's finding, upheld by this court, that Fibreboard

was worth no more than $235 million. 

This discrepancy could indicate clear error, but at the very

least it calls for a remand for new fact finding as to the value

of Fibreboard as a potentially “limited fund.” By issuing its

new opinion, the majority declines, by implication, to permit the

district court to reconsider that finding.

IV.

Although the Supreme Court's remand was specifically for

reconsideration in light of Amchem, the instant matter has the

procedural posture of an appeal from the entirety of the district

court's judgment. In other words, the remand does not limit the

scope of our review. Accordingly, I reiterate, briefly, some of

the other points discussed in the original panel opinion and

dissent, simply to indicate that these are still live issues

important to our consideration.
 

15 Indeed, the class includes “persons”SSthe future children of persons

exposed to asbestosSSwho had not yet been conceived at the time the complaint

was filed. 

 

16 Again, I call attention to the “future children” and “future spouses”

categories of claimants. See Ahearn I, 90 F.3d at 1018-19 (Smith, J.,

dissenting).

15

For example, even if it were properly certified under

rule 23(b)(1)(B), this class cannot proceed as a mandatory class

in contravention of Phillips Petroleum Co. v. Shutts, 472 U.S.

797, 812 (1985). See Ahearn I, 90 F.3d at 1001-06 (Smith, J.,

dissenting). Moreover, this classSSwhich by definition includes

persons unaware of any injury or even exposure15SScould never meet

rule 23's requirement of notice to class members. See Ahearn I,

90 F.3d at 999-1000 (Smith, J., dissenting); see also Amchem, 117

S. Ct. at 2252 (citing the Ahearn I dissent with approval). 

Perhaps most importantly, this classSSwith legions of members who

lack legally cognizable claims, and many members who have not

even suffered injury-in-factSScannot meet the irreducible minimum

standards of justiciability under U.S. CONST. Art. III.16 See

Ahearn I, 90 F.3d at 1015-26 (Smith, J., dissenting); see also

Amchem, 117 S. Ct. at 2244 (declining to reach jurisdictional

issues before deciding “logically antecedent” rule 23

certification issues).

V.

Even if these reasons were invalid, this class must fail

under Amchem because of the lack of common issues and the
 

17 Of great importance here is a point recognized by the panel majority,

that a settlement class “cannot proceed unless the requirements of Rule 23(a)

are met, irrespective of whether the proposed settlement is deemed fair under

Rule 23(e).” See also Amchem, 117 S. Ct. at 2248 (holding that the fairness

inquiry is “an additional requirement, not a superseding direction” to the

(continued...)

16

inadequately- representative named plaintiffs. The Amchem

settlement class, similarly, failed to meet the “adequacy of

representation” requirement of rule 23(a). Amchem, 117 S. Ct. at

2252. The Court stated:

Nor can the class . . . satisfy Rule 23(a)(4)'s

requirement that the named parties will fairly and

adequately protect the interests of the class. The

adequacy inquiry under Rule 23(a)(4) serves to uncover

conflicts of interest between named parties and the

class they seek to represent. [A] class representative

must be part of the class and possess the same interest

and suffer the same injury as the class members. 

. . . In significant respects, the interests of

those within the single [Amchem] class are not aligned. 

Most saliently, for the currently injured, the critical

goal is generous immediate payments. That goal tugs

against the interest of exposure-only plaintiffs in

ensuring an ample, inflation-protected fund for the

future.

117 S. Ct at 2250-51 (citations and internal quotation marks

omitted). 

A.

The Amchem Court firmly established three principles of law

with respect to rule 23(a)(4). Perhaps most importantly,

adequacy of representation must be analyzed as a procedural

safeguardSSa “structural assurance” that the class members'

interests are protected, irrespective of the fairness of the

outcome.17 Id. at 2251. And it is the class representatives who
(...continued)

requirements of Rules 23(a) and (b)). This directly contradicts Adams Extract

Co. v. Pleasure Hours, Inc. (In re Corrugated Container Antitrust Litig.),

643 F.2d 195 (5th Cir. Apr. 1981). See, e.g., id. at 212 (“If the

[settlement] terms themselves are fair, reasonable and adequate, the district

court may fairly assume that they were negotiated by competent and adequate

counsel”).

17

matter: the named plaintiffs, not their lawyers. Furthermore,

the Court's treatment of the issue makes plain that the adequacy

of representationSSor its converse, the existence of

conflictsSSis treated as a question of law, not as a factual

matter to be proven by expert testimony. 

1.

The Amchem Court was presented with a factual “no conflict”

finding similar to the district court’s finding in this case. 

The same legal ethics expert who testified in Ahearn testified in

Amchem that he perceived no intraclass conflict, or that if there

was a small conflict it was overwhelmed by the commonalities. 

See Georgine v. Amchem Prods., Inc., 157 F.R.D. 246, 297-98 (E.D.

Pa. 1994). The district court agreed. Id. In their briefs, the

class proponents vigorously argued the factual “no conflict”

determination to the Supreme Court. See, e.g., Amchem Brief for

Petitioner at 45-49, 1996 WL 721641, at *45-49. 

But the Supreme Court disregarded the expert's testimony and

the Amchem district court’s extensive findings of fact on the

issue of representativeness. Cf. Amchem, 117 S. Ct. at 2250-52. 

Instead, from its own review of the various and potentially

adverse interests among class members, the Court determined that
 

18 Of course, the underlying circumstancesSSfor example that certain

types of claimants are differently situated in the settlement value of their

underlying claimsSSwould be a factual matter.

18

conflicts existedSSwithout regard to the conclusions of expert

witnesses or of the district court. It is thus apparent from

Amchem that the existence of conflicts is very much a question of

law, not fact.18 As did the Amchem district court, however,

the district court and panel majority here incorrectly have

treated the conflict inquiry as a factual one. In Ahearn I, the

majority stated that “[j]ust what measure of representation is

adequate is a question of fact that depends on each peculiar set

of circumstances.” 90 F.3d at 977 (quoting North Am. Acceptance

Corp. v. Arnall, Gordon & Gregory, 593 F.2d 642, 644 n.4. (5th

Cir. 1979)). The new majority opinion apparently draws on that

conclusion when it says that “[w]e detailed in our prior opinion

our agreement with the thorough study and conclusions by the

district court, satisfying the requirements of class

certification under Rule 23(a).” Now, in light of Amchem, we

know this conclusion was incorrect: Adequacy is determined as a

matter of law. 

2.

The Amchem court also emphasized the crucial distinction

between the adequacy of the class representatives themselves, on

the one hand, and the adequacy of class counsel, on the other

hand. Thus, the Amchem Court, rather than looking at the

plaintiffs’ lawyers’ competence or ethical conflicts of interest,
 

19 Rule 23(a)(4) requires that the both the named plaintiffs and the

class counsel be adequately representative. The Court made this distinction

explicit, noting, “we decline to address the adequacy-of-counsel issues in

light of our conclusion that common questions of law or fact do not

predominate and that the named plaintiffs cannot adequately represent the

interests of this enormous class.” Amchem, 117 S. Ct. at 2251 n.20.

19

questioned whether the named plaintiffs shared the same interests

as did the class they purported to represent.19 The Court stated

that the rule 23(a)(4) adequacy inquiry requires that “the named

parties will fairly and adequately protect the interests of the

class.” Amchem, 117 S. Ct. at 2250 (emphasis added, internal

quotations omitted). Not just the attorneys, but also the named

parties must be without conflict with the class they seek to

represent. Id. This is especially true where, as here,

claimants are deprived of the right to opt out. See Ahearn I, 90

F.3d at 1009 (Smith, J., dissenting).

3.

Throughout Amchem, the Court reminds us that the rule 23

class composition requirements are structural protections:

prophylactic rules that must be applied even where a seemingly

desirable result has been achieved without their help. Noting

Congress's direction that the rules of procedure “shall not

abridge any substantive right,” 28 U.S.C. § 2072(b), the Court

states that rule 23's “dominant concern” is whether “absent class

members can fairly be bound by decisions of class

representatives.” Amchem, 117 S. Ct. at 2248. The adequacy

inquiry is ultimately designed to protect the members' due
 

20 As one academic noted, “[D]ue process must mean something other than

that the result is just, otherwise some lynchings would be consistent with due

process.” Susan Koniak, Feasting While the Widow Weeps: Georgine v. Amchem

Products, Inc., 80 CORNELL L. REV. 1045, 1123 (1995).

20

process rights, to keep them from being bound in absentia by

someone who does not adequately protect their interests. See

id.; see also Hansberry v. Lee, 311 U.S. 32 (1940). In other

words, the class certification inquiry does not examine the

merits of the tradeoffs created by a settlement, but examines

whether class representatives and class counsel had the authority

to trade at all.

Amchem thus specifically rejects any attempt to circumvent

the structural safeguards of rule 23(a) by looking only to the

substantive fairness of the outcome under rule 23(e).20 The

rules “designed to protect absentees by blocking unwarranted or

overbroad class definitions [] demand undiluted, even heightened

attention in the settlement context.” Amchem, 117 S. Ct. at

2248. Ignoring the class proponents' protestations that the

settlement was fair, and that the class members' interest in

achieving a fair settlement established a unifying interest among

all the members, see Amchem Brief for Petitioner at 43-48, 1996

WL 721641, at *43-48, the Amchem Court unequivocally reiterated

that structure must prevail over content.

It is not enough that a named plaintiff in fact works for

the overall good of the class. A representative must “possess

the same interest and suffer the same injury as the class

members” and must be aligned in interest such that no conflicts
 

21 The only intraclass conflict identified as such by the Court was the

conflict between the currently injured and exposure-only plaintiffs. See

Amchem, 117 S. Ct. at 2251. The same conflict, of course, exists here.

21

exist between the representative and any “discrete subclasses”

within the broader class he purports to represent. Amchem, 117

S. Ct. at 2251. Amchem demands a “structural assurance of fair

and adequate representation for the diverse groups and

individuals affected.” Id. (emphasis added). 

A corollary of rule 23(a)(4)'s mandate of unconflicted

representation as a “structural assurance” is that any real

conflict, even if minor when compared to interests held in

common, will render the representation inadequate. Thus, Amchem

did not weigh the myriad common interests within that class

against the conflicts, in order to decide whether the conflicts

were “de minimis” or were somehow overcome by the commonalities. 

Rather, the analysis was explicitly focused on the mere

existence of some intraclass conflict.21 Cf. Amchem, 117 S. Ct.

at 2250-51. And the Court specifically stated that the class

conflicts were not “made insignificant” by the ample funding

provided by the settlement. Id. at 2251. In accordance with

Amchem, therefore, we should not careSSbecause the Supreme Court

did notSSwhether having maximum dollars in a settlement fund is

in everyone's interest, or even whether that unifying interest

seems to outweigh the singular and disunifying interests among

the various de facto subclasses. 

Amchem requires that the class representatives possess an

identity of interest with the class they represent, and also that
 

22 As discussed below, the terms of the settlement demonstrate why

interested and express advocacy was necessary: It appears that the most

cohesive and self-identified groupSSthe presently injuredSSmay perhaps

unconsciously have advanced its own interests at the expense of the more

diffuse and unidentified future claimants.

22

“the named plaintiffs operated under a proper understanding of

their representational responsibilities.” Id. Where discrete

subclasses exist, each “separate constituency” must be

represented as such:

“The class representatives may well have thought that

the Settlement serves the aggregate interests of the

entire class. But the adversity among subgroups

requires that the members of each subgroup cannot be

bound to a settlement except by consents given by those

who understand that their role is to represent solely

the members of their respective subgroups.”

Amchem, 117 S. Ct. at 2251 (quoting In re Joint E. & S. Dist. 

Asbestos Litig., 982 F.2d at 742-43).

Therefore, in order for this class properly to be certified,

exposure-only and pre-1959 representatives must have been

representing the interests of their own subgroup, not the

amorphous interest of the class as a whole. But there was no

structural mechanism here to ensure that each discrete interest

(such as the exposure-only claimants' interest in a lower damage

cap) was given an advocate in the settlement negotiations. 

Rather, if these discrete interests were voiced at all, it would

have been by someone perfectly willingSSindeed, obligated by his

duty to the class as a wholeSSto subordinate that discrete

interest to his conception of the broader interests of the

class.22

 
 

23 These two structural conflicts are not the only ones, however. For

example, the direct claimantsSSwho allegedly suffered injury from direct

exposure to asbestos, and would recover under any tort regimeSSare in

opposition to the indirect claimantsSSwho only suffered injuries such as loss

of consortium, and whose claims might not be cognizable in some states. See

41 AM. JUR. 2D Husband and Wife § 247 (stating that jurisdictions may treat

loss of consortium claims as derivative of the underlying personal injury, and

thus a judgment in one establishes res judicata as to the other, or they may

treat the loss of consortium claim as a distinct action). Obviously,

negotiating the settlement's treatment of indirect claimants will pit these

two groups against each other. 

 

24 Before the settlement became imminent, the pre-1959 claims settled

for an average of $12,000, while the post-1959 settled for only $4,000. Once

the asbestos world expected that the settlement would go through, the pre-1959

claims settled for only $8,000, while the value of the post-1959 claims had

risen to $7,000. MEALEY'S LITIG. REP. June 2, 1995, at 20.

23

B.

Two important conflicts exist between certain class members

and their representatives.23 The same conflict between present

and future claimants identified in the Amchem class also is

present here: “Most saliently, for the currently injured, the

critical goal is generous immediate payments. This goal tugs

against the interest of exposure-only plaintiffs in ensuring an

ample, inflation-protected fund for the future.” Amchem, 117

S. Ct. at 2251. Because of that conflict alone, this cannot go

forward as a single class. 

Furthermore, this class contains the additional conflict

between the pre- and post-1959 claimants. These groups are

treated alike under the settlement, even though their claims are

worth vastly different amounts in the tort system.24 These

structural conflicts effectively create discrete subgroups within

the Ahearn class. Even if these conflicts are small in

comparison to other arguable common interests, certification of

the conflicted class was improper without proper
 

25 I note, however, that the putative class's common interests are not

overwhelming. The panel majority describes those interests as “suffering harm

from asbestos exposure and seeking equitable distribution of compensation from

limited funds.” This is in accord with the original majority opinion, which

essentially found the common interest to be maximizing and efficiently

distributing the settlement. Ahearn I, 90 F.3d at 981. 

Amchem refutes the proposition that the class members' common interest

in achieving or maximizing a settlement could align their interests

sufficiently enough to satisfy rule 23(a)(4). The district court that

originally certified the Amchem class relied on this rationale: “So long as

all class members are united in asserting a common right, such as achieving

the maximum possible recovery for the class, the class interests are not

antagonistic for representation purposes.” Georgine v. Amchem Prods., 157

F.R.D. 246, 317 (E.D. Pa. 1994). But the Supreme Court squarely rejected this

rationale. The fact that everyone had an interest in receiving money does not

suffice to ensure that the named parties would “fairly and adequately protect

the interests of the class.” See Amchem, 117 S. Ct. at 2250-51. The putative

class members' lack of common interests is dealt with at length in Part V,

below.

24

subclassification and representation.25 Because the panel

majority states that “there was no allocation or difference in

the award, according to the nature or severity of injury,” one is

led to infer that the only interest that was ever in play here

was the unitary interest of all the class members in receiving

money. That inference is incorrect. 

The settlement has two essential parts: a common fund and a

mandatory process for distributing that fund. Even if all

claimants are treated alike under the settlementSSwithout regard

to their statusSSthis still reflects an allocation decision, with

the various groups pitted against each other to receive parts of

the fund.

In order to negotiate the settlement fund and establish the

distribution process, the parties engaged in a series of

compromises, attempting to balance the interests of the various

subgroups in order to arrive at a settlement to the benefit of

all. Thus, individual claims are capped at $500,000, regardless
 

26 By contrast, mesothelioma claims had averaged tort recoveries in the

millions. Also, consider how this cap reflects an allocation between latent

claimantsSSwho desire a low cap, in order to preserve the fund for when their

injuries become manifestSSand patent claimantsSSwho would prefer high present

damages.

 

27 It is axiomatic that the class as a whole was giving something up in

return for the guaranteed settlement. Fibreboard and its insurers must have

thought they were getting a good dealSSthat the settlement cost was less than

their actual liabilitySSor they would not have entered into the agreement. 

The question, though, is whether some claimants' rights were traded away, and

whether those claimants were adequately represented.

 

28 This might be likened to an airline that eliminates both coach and

first class seating, creating a new “business class” for everyone, and then

applies this new arrangement to a flight on which many of the seats have been

sold. Those who bought a coach ticket are thrilled to receive a better level

of service, but those who paid for first class have been deprived of their

due. Even if the group as a whole is better offSSfor the many coach

passengers' happiness outweighs the few first class passengers'

disappointmentSSthis would be unacceptable. 

In economic terms, this result would be Kaldor-Hicks optimal. But here,

in order not to divest vested rights, any acceptable result must come closer

to Pareto optimality.

25

of the nature of the claim or when it manifests itself.26 There

is an outright ban on punitive damages. Pre- and post-judgment

interest is eliminated, despite its availability in many

jurisdictions and its obviously disproportionate impact on latent

claimants. Claims arising under highly different legal

systemsSSsuch as maritime versus non-maritime law, and common law

versus civil codeSSare treated identically.

But perhaps the most salient allocation was the decision to

treat the pre- and post-1959 claimants alike. It is true that

the class as a whole benefited from this, and perhaps from each

of the other compromises.27 It is also true that the settlement

treats everyone the same. But in so doing, it ignores the presettlement statusSSand rightsSSof the widely disparate groups of

claimants.28
26

The settlement forced the pre-1959 claimants to give up

something of value that is legally their dueSStheir cause of

action against an insured FibreboardSSin order to benefit a group

of claimants to whom they owe nothing. To deprive them of that

right requires that the absent class members have been protected

by rule 23(a)(4)'s structural safeguard of due process through

representation. 

It is immaterial that, arguably, the settlement might not

have been different had it been negotiated with representatives

of the subclasses. Likewise irrelevant is whether the settlement

was fair and in everyone's best interest. The gravamen of

prophylactic rules is that they must be followed even where they

seem burdensome and inconsequential.

C.

The panel majority apparently believes the adequacy inquiry

in this case to be distinguishable from that in Amchem, for this

is a rule 23(b)(1)(B) action, while Amchem was not. That

distinction is relevant, but it cuts against certification. 

Here, in a limited fund action, it is even more true that the

class members were pitted against one another, and that their

interests needed to be aligned with those of their loyal

representatives.

In Amchem, the Court stated that “[a]lthough this is not a

'limited fund' case certified under Rule 23(b)(1)(B), the terms

of the settlement reflect essential allocation decisions designed
27

to confine compensation and to limit defendants' liability.” 

117 S. Ct. at 2251. Thus, even though the Amchem defendants had

a theoretically unlimited supply of dollars with which to pay

future claimantsSSso that the allocation of dollars was not a

zero-sum game, and class members' potentially conflicting

interests were thus arguably not pitted against one

anotherSSstill, that settlement made “essential allocation

decisions” by which some class members won and some lost. Thus,

the Court worried that the settlement had chosen winners and

losers “with no structural assurance of fair and adequate

representation for the diverse groups and individuals affected.” 

Id. 

Here, there is no question that the settlement makes

“essential allocation decisions.” This is, after all, a “limited

fund” class, in the view of the panel majority. If that is so,

there is only one apple, and anyone who might ever assert a claim

against the defendants is fighting for a bite of it. The need

for adequate representation is even more important where, as

here, one person or group loses for every time another person or

group wins. 

The settlement's terms reveal its inter-group allocative

effect. The high cap on damages hurts latent claimants (who

would prefer a lower cap to ensure that there is some money left

when their injuries finally become manifest), while patent

claimants benefit. The ban on punitive damages hurts claimants

from jurisdictions where such awards are generally available,
28

saving a larger slice of the apple for those for whom punitives

would not be available. Perhaps most egregiously, the settlement

eliminates the privileged status of the pre-1959 claimants (who

were covered by Fibreboard's insurance policy) and places them on

equal footing with the post-1959 claimants (whose claims were

largely uninsured). This settlement undeniably picks winners and

losers.

A limited fund only increases the potential of intraclass

conflicts. If the settlement in Amchem was legally flawed, this

one is even more so. Where, as here, there are significant and

potentially adverse subgroups within a class, their interests

must be protected by representation as such.

Although recognizing that the class representatives might

have thought the settlement in the best interests of the class as

a whole, the Court in Amchem demanded a “structural assurance of

fair and adequate representation for the diverse groups and

individuals affected.” Id. at 2251. This case demands no less.

V.

The Amchem class was rejected also, in part, because common

questions of law or fact did not predominate over questions

affecting only individual class members. See id. at 2249 (citing

rule 23(b)(3)). That analysis does not directly control the

instant supposed “limited fund” class, for rule 23(b)(1)(B)

imposes no such predominance requirement, but calls only for rule

23(a)(2) commonality. And, noting that for rule 23(b)(3) classes
 

29 The Court found the fact of and terms of a settlement relevant in

only three contexts: (1) The terms of the settlement may indicate whether the

absentees' interests are adequately represented. 117 S. Ct. at 2248. (2) The

fact of a settlement also eliminates the need for a rule 23(b)(3)(D)

manageability inquiry. Id. And (3) when a class is a settlement-only class,

it requires that heightened attention be given to the class definition, as

there will be no way to refine and adjust the class as litigation unfolds. 

Id.

29

the test of commonality is subsumed under or superseded by the

more stringent predominance inquiry, the Court declined to

address commonality as such. Id. at 2243.

Here, where common issues need only exist, not predominate,

Amchem's ultimate conclusion has no bearing on the type and

relative significance of the issues necessary to pass muster

under rule 23(a)(2). The Amchem analysis is still pertinent,

however, for Amchem speaks directly to the relevance of the

settlement to either inquiry. Amchem tells us what sort of

common issues may be considered: whether they must preexist the

settlement, or whether an interest in the settlement itself may

provide the common issues in satisfaction of rule 23(a)(2) or

rule 23(b)(3). 

Amchem tells us that, although a settlement is “a factor in

the calculus,” 117 S. Ct. at 2249,29 the parties' interest in the

settlement will not suffice to establish a “common interest”

among the class members. “The benefits asbestos-exposed persons

might gain from the establishment of a grand-scale compensation

scheme . . . is not pertinent to the predominance inquiry. That

inquiry trains on the legal or factual questions that qualify

each class member's case as a genuine controversy, questions that

preexist any settlement.” Id. (emphasis added). “If a common
30

interest in a fair compromise could satisfy the predominance

requirement . . ., that vital prescription would be stripped of

any meaning in the settlement context.” Id. at 2249-50. 

The class proponents would object that by its terms, this

rule speaks only of “predominance,” not “commonality.” Here,

though, that is a distinction without a difference. That the

predominance inquiry imposes a higher standardSSby requiring not

only that the common issues exist but that they outweigh the

uncommon issuesSSis irrelevant, for the Court made explicit that

the issues themselvesSSwhether they must be “predominant” or

simply “common”SSmust arise from interests that preexist the

settlement. 

That there is a settlement, or that it is fair, does not

eliminate or modify the other requirements of rule 23. Id.

at 2248. The plain text of rule 23 requires the putative class

to meet its requirements by reference to the intrinsic features

of the class members' claims, not to the settlement. Amchem

reminds us that courts “lack authority to substitute for rule

23's certification criteria a standard never adoptedSSthat if a

settlement is 'fair,' then certification is proper.” Id. at

2249. A court must apply the “criteria the rulemakers set.” Id. 

A settlement cannot itself be used to establish commonality,

because to do so would cripple the settlement process from its

inception; a putative class unable to meet the requirement of

rule 23(a)(2) without the “commonality” established by a

settlement could never be certified for litigation. And if
 

30 I reiterate that Corrugated Container's reliance on the fairness of,

and interest in, the settlement is invalidated by Amchem. Also in doubt is

the viability of Meat Price Investigators Ass'n v. Iowa Beef Processors (In re

Beef Indus. Antitrust Litig.), 607 F.2d 167 (5th Cir. 1979), in which this

court stated: “[A]s the law now stands, tentative or temporary settlement

classes are favored when there is little or no likelihood of abuse, and the

settlement is fair and reasonable and under the scrutiny of the trial judge.” 

Id. at 174.

31

settlement were allowed despite the impossibility of litigation,

class counsel “could not use the threat of litigation to press

for a better offer,” and the resulting settlement would be a onesided deal that sells out the plaintiff class for a pittance and

works only in the true interest of the defendant and its insurers

and the attorneys for both sides. See id. at 2248-49. For

policy reasons as well as adherence to the text of the rule,

then, Amchem mandates that every class meet the rule 23

certification requirements independently of any common interest

they might share in obtaining or maximizing the proposed

settlement. 

In its original opinion, the panel majority relied

exclusively on the common interest of the class members in the

settlement, citing Adams Extract Co. v. Pleasure Hours, Inc. (In

re Corrugated Container Antitrust Litig.), 643 F.2d 195, 211 (5th

Cir. Apr. 1981),30 for the proposition that “the terms of the

settlement were vitally important to the determination that

certification was appropriate.” Ahearn I, 90 F.3d at 975. The

majority went on to cite other authority for the proposition that

“in the settlement class context, common issues arise from the

settlement itself,” id., and then applied its view of the law to

the putative Ahearn class:
 

31 The common issues described by the district court and the first panel

opinion are remarkably similar to one of the common issues relied on by the

Amchem district court and squarely rejected by the Supreme Court: “their

common 'interest in receiving prompt and fair compensation for their claims,

while minimizing the risks and transaction costs inherent in the asbestos

litigation process as it occurs presently in the tort system.'” Amchem, 117

(continued...)

32

The district court, in its findings of fact, found

that the entire Global Health Claimant Class had the

following issues in common: 

(i) avoiding the potentially disastrous

results of a loss by Fibreboard in the

Coverage Case appeal; (ii) maximizing the

total settlement contribution from Fibreboard

and the Insurers; (iii) streamlining the

procedures for the filing, processing and

resolution of claims, and thereby reducing

transactions costs and delays in

compensation; (iv) minimizing the percentage

of their compensation diverted from them to

pay attorneys' fees; and (v) adopting

procedures that provide for payments to

claimants in an equitable manner. 

The intervenors do not disagree that the settlement

class holds these issues in common. Instead, they

argue that these issues do not support a finding of

commonality because they are derived from the

settlement rather than from the Ahearn complaint. As

we noted above, this argument has no merit and is

foreclosed by our holding in Container I. Because the

evidence is overwhelming that the class holds the above

issues in common under the settlement (even the

intervenors concede this point), we agree with the

district court that the Ahearn action and the Global

Settlement Agreement presented it with questions of law

and fact common to the entire Global Health Claimant

Class.

Id. at 975-76. This passage makes apparent that the panel

majority based its finding of commonality solely on the nowdiscredited theory that the class members' interest in the

settlement itself is sufficient to fulfill rule 23's commonality

requirement.31
(...continued)

S. Ct. at 2249 (quoting Georgine v. Amchem Prods., Inc., 157 F.R.D. at 316). 

This benefit, the Court held, “is a matter fit for legislative consideration,

but it is not pertinent to the predominance inquiry.” Id. (emphasis added).

 

32 This “interest” is like the “interest” the majority identified in its

prior opinion: that, in addition to the now discredited “interest in the

settlement” theory, commonality exists because “Fibreboard is liable in tort

for damages incurred due to exposure to Fibreboard asbestos.” See Ahearn I,

90 F.3d at 975-76.

33

In its latest opinion, the majority addresses this point in

one sentence: “All members of the class, and all class

representatives, share the common interests: suffering from

asbestos exposure and seeking equitable distribution of

compensation from limited funds.” As I have said, the latter

“interest” in the settlement fund, because it does not preexist

the settlement, cannot establish commonality. And the putative

interest in “suffering from asbestos exposure” is simply

inadequate. 

To begin with, it is factually incorrect to say that all the 

class members have “suffered from asbestos exposure.”32 The

futures claimants, of course, have, by definition, “suffered”

nothing, although presumably they have been exposed. Likewise,

the future children and future spouses of persons exposed to

asbestos have suffered nothing and have been exposed to nothing. 

Presumably the majority means that by the time their claims

ripen and become justiciable, every class member will have a

common interest in that he will deserve some compensation from

Fibreboard that in some way stems from Fibreboard's manufacture

of asbestos. At such an extreme level of generality, the members
 

33 The reader may add facts as needed to sustain the analogy. For

example, the claims against the airline add up to a lot of money, so by the

panel majority's reasoning, one might consider the airline and its insurers a

“limited fund.” 

34

of this class conceivably could possess some level of

commonality. But this is not a justiciable common interest

sufficient to maintain the class. Consider a commercial

airline that suffers several disasters: one in Oregon, one in

Louisiana, and one off the coast of Brazil. The owners of

property that is damaged when the plane crashed into it, the

bystanders injured by flying debris, and the deceased passengers'

and crewmembers' next of kin all have “suffered from” the

crashes.33 But no federal court would allow these disparate

groups, under dissimilar legal systems, asserting divergent legal

claims, all to join together under the aegis of their common

“suffering from the airplane crashes.” 

In such a case, then, the superficial commonality of having

suffered some injury will not suffice. Instead, the common issue

must be necessary to the theory of recovery: “[T]he individual's

claim and the class claims [must] share common questions of law

or fact.” General Tel. Co. v. Falcon, 457 U.S. 147, 157 (1982)

(emphasis added). And it must be significant:

The commonality and typicality requirements of

Rule 23(a) tend to merge. Both serve as guideposts for

determining whether under the particular circumstances

maintenance of a class action is economical and whether

the named plaintiff's claim and the class claims are so

interrelated that the interests of the class members

will be fairly and adequately protected in their

absence.
35

Id. at 157 n.13. It is not enough for some general sort of

commonality to exist. The commonality must be justiciable: It

must derive from a substantial legal or factual question that is

necessary to the class members' theories of recovery.

It might be that the members of the putative Ahearn class do

have issues in common, issues preexisting and apart from the

settlement. It might also be that these issues would suffice to

establish rule 23(a) commonality. The district court and the

panel majority did not cite any such common issues, however. 

In fact, the gist of this class is that the driving

commonality was the class members' interest in the settlement

itself: that in order to keep the defendants from going bankrupt

and to forestall a possibly disadvantageous result in the

insurance litigation, the plaintiff class members found it in

their common interest to settle. Amchem tells us this is not

enough. 

VI.

In sum, this class cannot go forward. It cannot be

certified as a “limited fund” class under rule 23(b)(1)(B),

because it does not concern such a “limited fund,” but rather is

an aggregation of claims against a solvent, ongoing concern and

its insurers. 

But even if this class did involve a “limited fund” under

rule 23(b)(1)(B), Amchem makes plain that it must still fail the

requirements of rule 23(a). The pre- and post-1959 claimants and 
36

the patent and latent claimants are discrete and often

adversarial subgroups. That the class structure fails to

recognize these groups as such and to afford them proper

representation causes the class to fail the adequacy requirement

of rule 23(a). Further, because Amchem will not allow

commonality to stem from a putative interest in the settlement

itself, this class must also fail for want of common issues.

The panel majority embraces a settlement that it considers a

triumph of practicality. In doing so, it casually dismisses the

teaching of Amchem and blesses a class that falls far short of

legal and constitutional requirements. I do not believe the

Supreme Court spoke cryptically in vacating our earlier opinion

while articulating, in Amchem, the specific standards for us to

apply on remand. Because the majority adheres to an opinion that

is foreclosed by the Court's reasoning, I respectfully dissent.