Must Settlement Classes Satisfy All the Requirements of Litigation Classes

This article previews the issues and arguments in Amchem Prods. Inc. v. Windsor, an appeal on the Supreme Court’s 1996-97 docket. The primary issue that the Court will address is whether a federal district court in certifying a proposed settlement class apply the same standards it would apply in certifying a proposed litigation class, or can the court take into account the fact of the settlement itself in deciding to certify a settlement class?Rule 23(c)(1) provides that "as Class action procedure under federal law requires that a district court determine, as soon as practicable after the commencement of the action, whether or not it may be maintained as a class action lawsuit. Fed. R. Civ. P. 23(c)(1). Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure set forth the requirements for certifying a class action lawsuit. For more than 50 years, district courts routinely applied these standards to grant or deny certification to lawsuits that have contemplated a trial of the claims common to a class of plaintiffs.Class action lawsuits that are certified at the outset of litigation and expected to go to trial are called litigation classes. In the late 1980s and into the 1990s beginning with the A.H. Robins Dalkon Shield litigation, lawyers in federal mass tort cases (personal injury cases involving large numbers of claimants) began to propose comprehensive, global settlements under which thousands of individual claimants would be compensated for their injuries through complex administrative schemes. A central feature of these negotiated global settlements requires, as part of the settlement package, that the district court certify a class of all claimants.Thus, class certification is an express term and core feature of global, mass tort settlements because such certification binds all class members to the agreement. Although lawyers have settled litigation classes after certification, use of the so-called settlement class is a relatively recent development. The distinctive feature of the settlement class action lawsuit is that the parties' lawyers negotiate a global settlement first and then seek class certification at the same time they present the settlement to the court for approval. The settlement class action lawsuit represents a negotiated compromise of class claims. As a settlement, it necessarily contemplates that the parties will not litigate their claims.Rule 23(e) requires that a federal district court review and approve any class action settlement before dismissing the complaint. But settlement classes have come under increasingly vehement attack from objecting class members who argue that Rule 23 in its current form does not authorize settlement classes at all. Moreover, opponents of settlement classes maintain that federal district courts do not have the authority to flexibly interpret and apply Rule 23's class certification requirements when the court is presented with a negotiated settlement. Finally, opponents have attacked settlement classes as inherently dangerous and unfair, subject to collusive and self-serving attorney conduct, and either potentially or actually compromising of the interests of some class claimants at the expense of others.This case asks the Supreme Court to decide the validity, under the Constitution and under Rule 23, of settlement class action lawsuits. The question arises in the context of actual and future injuries caused by asbestos. The Court's decision will have immediate consequences for thousands of people with current asbestos-injury claims and for those who were exposed to asbestos and whose future claims would be resolved under the terms of the settlement.More broadly, this case has far-reaching significance for the future use of the settlement-class device in resolving aggregated claims in mass tort, class action lawsuits. Accordingly, mass tort and other class action lawyers are watching this case closely. Finally, the case is critically important because the Advisory Committee on Civil Rules of the United States Judicial Conference (the "Advisory Committee") is considering a proposed amendment to Rule 23 that would authorize settlement classes. The amendment would create a new Rule 23(b)(4) class and would permit certification of a settlement class without requiring the class to meet the same standards as a litigation class. Thus, the Court's decision most likely will affect the pending Rule 23(b)(4) proposal.