* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 11 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

In re: COPLEY PHARMACEUTICAL, INC., “Albuterol” Products Liability Litigation.

______________________________ JAMES BURNS and VICKIE BURNS, personally and as parents and guardians of Jimmy Burns,

Plaintiffs-Appellants,

v. COPLEY PHARMACEUTICAL, INC., Defendant-Appellee, and NATIONAL PHARMACIES, INC.,

Defendant. No. 96-8054 (D.C. No. 94-MDL-1013

& 96-1601-MDL) (D. Wyo.)

ORDER AND JUDGMENT *** The Honorable J. Thomas Marten, District Judge, Uni ted States District

Court for the District of Kansas, sitting by design ation. -2- Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiffs-appellants James and Vickie Burns (the B urnses) seek review of an order of the district court denying their untime ly motion to opt out of a multidistrict class action against defendant-appell ee Copley Pharmaceutical, Inc., the manufacturer of a prescription drug, albuterol sulfate inhalation solution (albuterol). The Burnses had filed an individual l awsuit, alleging that Copley and National Pharmacies, Inc., a seller of albuterol, a re liable for the death of their child. We reverse and remand for additional findin gs.

BACKGROUND The Burnses filed their action on November 1, 1995, in South Carolina state court. At the time, Copley was the defendantin numerous other lawsuits, initiated after it had announced a voluntary recall of batches of contaminated1 An account of the factual allegations, claims, and defenses in the class

action can be found in the district court’s order g ranting partial class certification. See In re Copley Pharm. , 158 F.R.D. at 487. See also In re Copley Pharm., Inc. (“Albuterol” Prod. Liability Litig. , 161 F.R.D. 456 (D. Wyo. 1995) (order denying defendant’s motion to decertify the class and the c ourt’s trial plan).

2 Copley was ordered to provide the names, addresses and phone numbers of all persons who may be considered members of the cl ass, including persons identified from customer complaints, responses to r ecall notices, the lists of a claims service, lists provided by pharmacists or di stributors, and lists of potential class members who had settled with Copley. Withoutmaking specific findings tied to the evidence, the district court declined C opley’s request to require class counsel to send notice to pharmacists, which was “h ow people were notified of the problem” during the recall, Appellee’s Suppl. App. at 120-21. See also In re Copley Pharm, , 158 F.R.D. at 493 (in certifying class, the distr ict court noted that “notice should not be terribly complicated [ ] [b]e cause Albuterol was distributed through prescriptions and Copley has already contac ted distributors through its recall”). -3- albuterol. Previously, the judicial panel for mult i-district litigation had consolidated the federal cases brought against Copl ey in the United States District Court for the District of Wyoming. On October 28, 1994, that court had certified the multi-district action as a Fed. R. Civ. P. 23(b )(3) class action of “[a]ll persons throughout the United States and its territories wh o suffered damages as a result of the inhalation of Albuterol manufactured, suppli ed, distributed or placed in commerce by Copley Pharmaceutical, Inc.” In re Cop ley Pharm., Inc., (“Albuterol” Prod. Liability Litig.) , 158 F.R.D. 485, 493 (D. Wyo. 1994). 1 Class counsel was ordered to give notice of the act ion by direct mail to potential class members known to Copley 2 and class counsel, and by publication in USA Todayand speciality magazines. The district court set the opt-out3 The settlement agreement is expressly conditioned upon the entry of an

order dismissing with prejudice the class action an d the other cases transferred by the judicial panel on multidistrict litigation.

-4- deadline of March 15, 1995. The parties reached a settlement on August 22, 1995, which the court preliminarily approved on Aug ust 28, 1995. The following month, the Burnses learned of the cla ss action from a physician who was treating their child. After cont acting attorneys, they filed a motion to opt out of the class on October 20, 1995, and commenced their action in state court. The case was removed to federal courtand included in the class action. On November 15, 1995, the district court e ntered an order finally approving the class action settlement. It did not enter the final order of dismissal required by the agreement 3 and retained jurisdiction to administer the agreem ent. On May 3, 1996, the district court denied the Burns es’ motion to opt out, and allowed them thirty days to file a proof of claim. Rather than proceeding with their claim in the class action, the Burnses filed this appeal.-5- DISCUSSION A. Jurisdiction We first examine whether we have jurisdiction over this appeal, in light of the lack of a dismissal order and the district court’s continuing administration of the settlement. As we have previously explained, u nder 28 U.S.C. § 1291, we have jurisdiction only over “final” decisions of the district court; that is, those decisions that leave nothing for the court to do but execute the judgment. Notably, a decision “final” within the meaning of § 1291 does not necessarily mean the las t order possible to be made in a case. Thus, a district court’s dec ision is appealable if it falls within “that small class which finally det ermine claims of right separable from, and collateral to, rights ass erted in the action, too important to be denied review and too independe nt of the cause itself to require that appellate consideration be d eferred until the whole case is adjudicated.” Cohen v. Beneficial In dustrial Loan Corp. , 337 U.S. 541, 546 (1949). To come within Cohen’s collateral order doctrine, an order must [1] conclusively determine the disputed questi on, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment. Myers v. Oklahoma County Bd. of County Comm’rs , 80 F.3d 421, 425 (10th Cir.), cert. denied , 117 S. Ct. 383 (1996) (further citations and quot ations omitted). The circumstances of this case meet all three of th e requirements of the collateral order doctrine. The denial of the motio n to opt out (1) conclusively determines the status of the Burnses’ separate laws uit; (2) resolves the Burnses’ claims concerning the adequacy of notice, which are separate from the merits of the class action’s settlement agreement; and (3) wi ll be unreviewable on an appeal-6-

from final judgment, in that the district court’s o rder effectively binds the Burnses to the terms of the settlement agreement. We there fore conclude that the challenged order amounts to a final decision and we exercise our jurisdiction pursuant to § 1291. B. Standard of Review We review the district court’s denial of an opt-outmotion for abuse of discretion. See Silber v. Mabon , 18 F.3d 1449, 1453 (9th Cir. 1994); In re Piper Funds, Inc. (Institutional Gov’t Income Portfolio L itig.) , 71 F.3d 298, 304 (8th Cir. 1995). “A court has abused its discretion whe n it ‘based its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.’” Mann v. Reynolds , 46 F.3d 1055, 1062 (10th Cir. 1995) (quoting Wang v. Hsu , 919 F.2d 130, 130 (10th Cir.1990)). “A district court that does not exercise its discretion, or makes a decision without providing reasons, abuses that discretion.” ARW Exploration Corp. v. Aguirre , 45 F.3d 1455, 1459 (10th Cir.1995). C. Denial of Motion to Opt-Out The plaintiff class in the underlying action was ce rtified as a Rule 23(b)(3) class, in which the judgment, whether favorable or not, includes all members who do not request exclusion. See Fed. R. Civ. P. 23(c)(3). “To alert class members to their right to ‘opt out’ of a (b)(3) class, Rule 23 instructs the court to ‘direct to-7-

the members of the class the best notice practicabl e under the circumstances including individual notice to all members who can be identified through reasonable effort.’” Amchem Prods., Inc. v. Windso r , 117 S. Ct. 2231, 2246 (1997). Individual notice is “mandatory in (b)(3) actions” and the “requirement may not be relaxed based on high cost.” Id. at 2246-47 (citing Eisen v. Carlisle & Jacquelin , 417 U.S. 156, 173-77 (1974)). Actual receipt of notice is not necessary, however, so long as the best practicable notice was given to absent class members. Silber , 18 F.3d at 1454. The Federal Rules of Civil Procedure allow the district court discretion in fashioning notice in class actions, see In re Agent Orange Prod. Liab. Litig. , 818 F.2d 145, 168 (2d Cir. 1987), and in dealing with u ntimely motions to opt out, see Supermarkets Gen. Corp. v. Grinnell Corp. , 490 F.2d 1183, 1186 (2d Cir. 1974). This discretion is the same whether the matter is v iewed as arising under the court’s discretion to extend time under Rule 6(b)(2 ), to grant relief from an order or judgment under Rule 60(b), or to implement Rule 23. See id. See also Silber v. Mabon , 18 F.3d at 1454 (referring to authority under Fed . R. Civ. P 6(b)(2), 23, and 60(b) to extend a class member’s time to opt out); In re Four Seasons Sec. Laws Litig. , 493 F.2d 1288, 1290-91 (10th Cir. 1974) (granting extension of time to opt out under Fed. R. Civ. P. 6(b)(2)).4 Copley argues that the Burnses waived considerationof the adequacy of the

individual notice by failing to make an explicit re ference to that issue in the initial motion. We disagree. The argument that th e movant deserved individual notice is implicit in an opt-out motion based on la ck of actual receipt. -8- On a late motion to opt out, a district court must determine (1) whether the movant’s neglect was excusable, and (2) whether either party would be substantially prejudiced by the court’s action. Se e Supermarkets Gen. , 490 F.2d at 1186. The Ninth Circuit has provided a list of factors which may inform the court’s discretion: the degree of compliance with the best practicable notice procedures; when notice was actually received and if not timely received, why not; what caused the delay, and whose responsibility was it; how quickly the belated opt out request was made once n otice was received; how many class members want to opt out; and whether allowing a belated opt out would affect either the settlement or finality of the judgment. Silber , 18 F.3d at 1455 (footnote omitted). The record shows that the Burnses’ opt-out motion, which was filed approximately one month after the Burnses received actual notice of the class action and one month before final approval of the s ettlement, raised many of these

concerns. 4 The district court, however, issued a summary rul ing: The Court finds that the class notice procedures in this action complied with the requirements of Federal Rule of C ivil Procedure 23 and due process and, therefore, were sufficient to bind all class members (including those who received constructive notice by publication) who failed to timely seek exclusion fr om the class. The above listed persons [including the Burnses] have f ailed to5 The above ruling disposed of all untimely motions f or exclusion pending at the time of entry. The Burnses’ motion was only on e of many. We recognize that the district court was performing yeoman’s duty in dealing with this multi-district litigation. -9- demonstrate good cause for allowing them to now exc lude themselves from the class. Their motions, objectio ns, and requests are, therefore, overruled and denied. Appellee’s Suppl. App. at 110. 5 Because this ruling provides no findings indicating how the district court reached its conclusions, we cannot conduct meaningf ul appellate review. We accordingly remand this action to give the districtcourt an opportunity to make the appropriate findings, consider the factors rele vant to the Burnses’ motion to opt out of the class action, and exercise its discr etion on the matter. REVERSED and REMANDED.

Entered for the Court

J. Thomas Marten District Judge