Life After Amchem: The Class Struggle Continues

LIFE AFTER AMCHEM:
THE CLASS STRUGGLE CONTINUES

Loyola of Los Angeles Law Review, Volume 31, No. 2, January 1998

I. INTRODUCTION

And so the much dreaded and anticipated Amchem¹ decision has come, and that settlement is gone -- at least for now -- living only in the vigorous dissenting opinion of Justice Breyer.² The Third Circuit and the Supreme Court have interceded to spare the "unselfconscious and amorphous legions" of asbestos victims and their families³ the indignity to their legal due process rights that might have accompanied the prospect for monetary compensation in their lifetimes offered by the $1 billion-plus settlement. The champions of due process rejoice, as do those lawyers with large inventories of asbestos claims whose proprietary interests in the serial filing, trying, and settling of "their" clients' claims ad infinitum -- or at least until bankruptcy -- remains unimpaired. Those of us who regularly advocate the rights of victims of dangerously defective products and human-made environmental catastrophes, but who were not involved in asbestos litigation in general or the Amchem settlement in particular, are disentangling the mixed messages of Amchem and teasing out the threads that must serve as lifelines to the just and timely compensation of those we serve in other cases. We look for messages of hope, for evidence of principled pragmatism, and for loyalty to the historical equitable precepts that were embodied in the first federal codification of class action procedures, Federal Equity Rule 38, and remain embedded in its successor, Rule 23 of the Federal Rules of Civil Procedure.

Aside from the substance of the deal, the settlement procedure utilized in Amchem was also highly unusual, and at the time perhaps unique. In most cases involving classes certified for settlement, actions were originally brought as class actions for litigation and trial. Class-related discovery has been conducted, and some or all of the class certification-related briefing has been concluded. Defendants who would feel compelled to continue opposing class certification for trial at the district and appellate levels then agree to the certification of the class for settlement. Ultimately, the case settles after substantial litigation but before the formal class certification decision is made. Appellate courts have widely used and approved of this procedure.⁴

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NOTES

*Ms. Cabraser is a partner in the San Francisco law firm of Lieff, Cabraser, Heimann & Bernstein, LLP. The firm represents plaintiffs in securities and investment fraud, employment discrimination, product liability, consumer, antitrust, and environmental litigation. Ms. Cabraser and her firm have been known to pursue class actions in the past and are likely to do so again.

¹Amchem Prods., Inc. v. Windsor, 117 S. Ct. 2231 (1997), aff’g Georgine v. Amchem Prods., Inc., 83 F.3d 610 (3d Cir. 1996).

²Justice Breyer, with whom Justice Stevens joined, concurred in part and dissented in part. See id. at 2252-58 (Breyer and Stevens, JJ. concurring in part and dissenting in part). The dissent agreed "with the Court’s basic holding that ‘settlement is relevant to a class certification,’" but criticized the majority’s rejection of the settlement at issue. Id. at 2252 (Breyer & Stevens, JJ., concurring in part and dissenting in part).

³See id. at 2252.

⁴ For examples, see cases collected in HERBERT B. NEWBERG & ALBA CONTE, 2 NEWBERG ON CLASS ACTIONS §§ 11.27-11.28 (3d ed. 1992 & Cum. Supp. 1997). In Amchem, by contrast, "[t]he class action . . . was not intended to be litigated. Rather, within the space of a single day . . . the settling parties . . . presented to the District Court a complaint, an answer, a proposed settlement agreement, and a joint motion for conditional class certification." Amchem, 117 S. Ct. at 2239.