Life After Amchem: The Class Struggle Continues, page 3

Life After Amchem (continued)

Page 3

This view is a refreshing contrast to recent appellate decisions, including the Third Circuit's Amchem decision, Georgine v. Amchem Products, Inc.,¹⁴ the Fifth Circuit's Castano v. American Tobacco Co.,¹⁵ and the Seventh Circuit's In re Rhone-Poulenc Rorer, Inc.¹⁶ These decisions appear to reconstruct the record to suit the intended outcome. Moreover, they disregard the broad discretion afforded trial courts under Rule 23, as well as the inherently conditional nature of class related rulings. Further, rather than remanding those matters for corrective procedures or serving as findings, these decisions declare the categorical impossibility of class treatment in those cases.

Such decisions have had a demonstrable chilling effect on the willingness of trial courts to exercise the broad discretion that was formerly -- and is still formally -- theirs. The decisions have also had a deleterious effect on class actions bearing little factual or legal resemblance to either Rhone-Poulenc or Castano. The Breyer dissent should give heart to judges who wonder whether any class is still certifiable. As this Essay discusses, the Amchem majority opinion has something for them, too.

In a sense, the Amchem Supreme Court decision was a non-event. Those who sought to enforce their own nostalgia for the non-existent halcyon days of "every man has his day in court" were disappointed that Amchem did not smite down either class action settlements or settlement class actions. Indeed, with the finesse of diplomacy, the Amchem decision masked with gentle language of modification what was actually a reversal of the Third Circuit's central holding.¹⁷ It is now established that a class certified for purposes of settlement must meet the class certification criteria of Rule 23 in ways different than those of a class certified for trial.¹⁸ The settlement class, as a district mechanism, retains legitimacy in its own right, with useful guidelines from the Supreme Court for application by practitioners and courts in future settlements.¹⁹ Of course, those who were proponents of the innovative settlement in the Amchem litigation were also cruelly disappointed by the palpable distaste for the circumstances of the settlement that is evident in the majority opinion's description of its circumstances.²⁰ They were even more cruelly disappointed by the outcome: the rejection of the Amchem settlement and its sister settlement, Ahearn,²¹ which was vacated and remanded for further consideration in light of Amchem.²²

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NOTES

¹⁴ 83 F.3d 610 (3d Cir. 1996).

¹⁵ 84 F.3d 734 (5th Cir. 1996).

¹⁶ 51 F.3d 1293 (7th Cir. 1995).

¹⁷ Justice Ginsburg, writing for the majority, stated the following:

The Third Circuit's opinion stated that each of the requirements of Rule 23(a) and (b)(3) "must be satisfied without taking into account the settlement." That statement, petitioners urge, is incorrect.

We agree with petitioners to this limited extent: settlement is relevant to a class certification. The Third Circuit's opinion bears modification in that respect.

117 S. Ct. at 2248 (citation omitted).

¹⁸ See id.

¹⁹ See id. at 2248-52.

²⁰ Justice Ginsburg, writing for the majority, stated:

Settlement talks . . . concentrated on devising an administrative scheme for disposition of asbestos claims not yet in litigation. In these negotiations, counsel for masses of inventory plaintiffs endeavored to represent the interests of the anticipated future claimants, although those lawyers then had no attorney-client relationship with such claimants . . . . After settling the inventory claims, CCR [consortium of 20 former asbestos manufacturers-defendants], together with the plaintiffs' lawyers CCR had approached, launched this case, exclusively involving persons outside the MDL Panel's province—plaintiffs without already pending lawsuits.

Id. at 2239.

²¹ See Flanagan v. Ahearn, 117 S. Ct. 2503 (1997) (mem.), vacating and remanding In re Asbestos Litig., 90 F.3d 963 (5th Cir.), reh'g denied, 101 F.3d 368 (5th Cir. 1996).

²² See Ahearn, 117 S. Ct. at 2503.