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Professor Linda Mullenix articulates an opposing viewpoint on the application of
Article III and the REA to settlement classes under either existing Rule 23 or the Advisory
Committee’s proposed Rule 23(b)(4). She asserts that the rule and its proposed cousin
pass muster under both constitutional and REA standards.643 In her view, the proposed
(b)(4) class is no more than “a descriptive functional category” like other components of
Rule 23.644 She notes that the collection of arguments about the impact on state substantive
law prove too much in that they would also invalidate rules expressly empowering
courts to deal with settlements, such as Rules 23(e) and 16(c)(19).645 She addresses directly
the ten substantive effects posed by Carrington and Apanovitch as well as a few that
they did not raise.646 While we leave it to the reader to assess the merits of these arguments,
as we noted above, the Court’s ruling in Amchem implies that the current rule
passes REA muster and that it permits settlement classes under limited circumstances.
b. Settlement class proposals
Aside from REA considerations, commentators have expressed opinions for and against
Advisory Committee proposals to authorize settlement classes. Considerable opposition
to the Committee’s proposal came from the academic community in the form of a letter
signed by 129 law professors.647 This group objected specifically to Rule 23(b)(4) because
“it contains no limiting principles, standards or other guidelines . . . to help trial judges
decide when a settlement is desirable and what form the class should take” and because
“it raises serious constitutional and statutory questions that have not been adequately
addressed by the Advisory Committee.”648 The group also expressed concern that the
proposed rule “lends official approval to an extremely controversial practice, one plagued
by serious agency problems and risks of collusion.”649 A number of the signers also expressed
their opposition to settlement classes in a 1995 Cornell Law Review symposium
with the punchy title Mass Tortes: Serving Up Just Desserts.650
643. Linda S. Mullenix, The Constitutionality of the Proposed Rule 23 Class Action Amendments, 39 Ariz. L.
Rev. 615 (1997).
644. Id. at 626 (emphasis in original).
645. Id. at 627.
646. Id. at 624–35.
647. Letter from Steering Committee to Oppose Proposed Rule 23 to Honorable Alicemarie H. Stotler,
May 28, 1996 in Administrative Office of the United States Courts, 2 Working Papers of the Advisory Committee
on Civil Rules on Proposed Amendments to Civil Rule 23, at 1 (1997).
648. Id.
649. Id.
650. See, e.g., Cramton, supra note 153; Susan P. Koniak, supra note 170.
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In one of the few post-Amchem articles to date, attorneys John Aldock and Richard
Wyner, counsel for the Center for Claims Resolution in Amchem, think a rule change is
unnecessary. In their estimation, the class certification issues that were fatal to the Amchem
settlement likely can be resolved by using more narrowly-defined classes or subclasses
and by appointing separate counsel and named representatives for each of those classes
or subclasses.651 They also conclude that other criticisms directed at mass torts settlement
class actions in Amchem—such as the alleged lack of a case or controversy and the difficulty
of providing notice to future claimants—should not prove to be an insurmountable
obstacle to such settlements.652
Lest we begin to think Amchem settled the issue, Professor Eric Green, also in a post-
Amchem article, laments that the Court “apparently sounded the death knell for nationwide
mass torts class actions (whether settled or litigated) under the current version of
Rule 23.”653 To remedy that situation, Green, an alternative dispute resolution (ADR)
practitioner, urges the Advisory Committee to adopt the proposed Rule 23(b)(4). In his
view, the
ultimate effect of the proposed amendment would be to clarify uncertainty about the
legitimacy of settlement classes, increase fairness and efficiency in class action litigation,
reduce transaction costs, increase compensation to deserving plaintiffs, decrease
ruinous exposures and bankruptcy to defendants, and provide a reasonable and fair
tool in appropriate cases for federal courts to reduce the enormous drain on resources
caused by multiple harms—including mass products liability litigation (notwithstanding
Amchem Products).654
Professor Judith Resnik provides a third post-Amchem opinion. In her judgment, the
ruling shows that “settlement has a strong appeal: none of the justices in Amchem wanted
to disown its function,” but “the quality of settlements is always a worry.”655 She concludes
with the observation that the remedy lies with the judicial branch because “solutions
have not yet come from Congress.”656 The Advisory Committee then has “an impor-
651. See Aldock & Wyner, supra note 144, at 941.
652. See id. at 917–20.
653. Eric D. Green, What Will We Do When Adjudication Ends? We’ll Settle in Bunches: Bringing Rule 23
into the Twenty-First Century, 44 UCLA L. Rev. 1773, 1775 (1997).
654. Id. at 1798–99.
655. Judith Resnik, Postscript: The Import of Amchem Products, Inc. v. Windsor, 30 U.C. Davis L. Rev. 881,
885 (1997).
656. Id. at 886.
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tant occasion in which to offer structure, to face the diversity of interests and individuals
within an aggregate, and to insist on judicial oversight of interests of absentees, even at
the expense of some settlements.”657
Before Amchem, a number of academic commentators supported the idea of permitting
settlement class actions under some circumstances, suggesting alternatives to the
Advisory Committee’s (b)(4) proposal. For example, Professor Judith Resnik and Professor
John Coffee collaborated on a proposal that would establish standards for informing
the class about a proposed settlement and detailing aspects of certification, notice, hearing,
and settlement approval.658
The Resnik-Coffee proposal differentiates among class certification according to the
stage of the litigation, with different provisions for settlement and for pretrial litigation,
reserving full certification for trial. At whatever stages settlement is proposed, class action
rules must address a series of common issues, such as “the extent of the information
provided participants in a settlement about the remedy to be provided, whether claimants
within a class are treated equally or distinguished by criteria that are appropriate, the
relationship between compensation to claimants and to attorneys, the cost of administering
the remedy and how it is financed, the degree to which opting out is either legally or
practically feasible, and the timing of the processes of informing the class and permitting
opt outs.”659 Resnik and Coffee’s specific suggestions seem designed to provide information
to class members and structure for the judge in reviewing certification or settlement
proposals.
Judge William Schwarzer also proposes a rule designed to provide structure to a district
judge’s review of a proposed class settlement. Judge Schwarzer observed that “[i]n
the mass tort settlement context, . . . the class action is becoming a creature that resembles
a cross between an equity receivership and a bill of peace.”660 To counter the amorphous
growth of the settlement class, Judge Schwarzer proposed specifying in Rule 23(e) a set of
issues for a district judge to address when evaluating the procedural and substantive fair-
657. Id. at 887.
658. See Resnik, Litigating and Settling, supra note 189, at 865–71.
659. Id. at 848.
660. Schwarzer, supra note 29, at 841. See also discussion at notes 180–84.
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ness of proposed settlements. Those issues are detailed in the note.661 In Judge Schwarzer’s
view, guidelines should not be prescriptive but should give discretion that would lead the
court to give the settlement the consideration necessary to bring to light any serious defect
and ensure that it is truly fair and equitable.662 Some of Judith Resnik’s suggestions
echo Judge Schwarzer proposal,663 and ALI-ABA commentators Charles Schwartz and
Lewis Sutherland endorse wholesale adoption of the Schwarzer proposal.664
c. Class action trial structure proposals
Several class action trial structure proposals warrant attention because of their innovative
approaches. Professor John Coffee attacks the joint problems of the need for individual
damage determinations and the dilemma of providing fair treatment to future
claimants in mass torts aggregations.665 In applying the prerequisites to class certification,
a court would be required to develop standards responsive to the particular needs of
mass torts. For example, separate representation for future claimants would be expressly
required,666 and creating an adequately funded reserve for payment of future claims would
661. The issues are: (1) whether the prerequisites set forth in subdivisions (a) and (b) have been met; (2)
whether the class definition is appropriate and fair, taking into account among other things whether it is
consistent with the purpose for which the class is certified, whether it may be overinclusive or underinclusive,
and whether division into subclasses may be necessary or advisable; (3) whether persons with similar claims
will receive similar treatment, taking into account any differences in treatment between present and future
claimants; (4) whether notice to members of the class is adequate, taking into account the ability of persons
to understand the notice and its significance to them; (5) whether the representation of members of the class
is adequate, taking into account the possibility of conflicts of interest in the representation of persons whose
claims differ in material respects from those of other claimants; (6) whether opt-out rights are adequate to
fairly protect interests of class members; (7) whether the provisions for attorneys’ fees are reasonable, taking
into account the value and amount of services rendered and the risks assumed; (8) whether the settlement
will have significant effects on parties in other actions pending in state or federal courts; (9) whether the
settlement will have significant effects on potential claims of class members for injury or loss arising out of
the same or related occurrences but excluded from the settlement; (10) whether the compensation for loss
and damage provided by the settlement is within the range of reason, taking into account the balance of costs
to defendant and benefits to class members; and (11) whether the claims process under the settlement is
likely to be fair and equitable in its operation. Id. at 843–44.
662. See id. at 842–43.
663. See Resnik, Litigating and Settling, supra note 189, at 858, n. 86,
664. Charles W. Schwartz & Lewis C. Sutherland, Class Certification for Environmental and Toxic Tort
Claims, SA88 ALI-ABA 119 (1996).
665. Coffee, supra note 69, at 1433–42.
666. See id. at 1436.
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be part of the “superiority” requirement.667 Within that framework, Coffee proposes a
trial structure in which “the class action would resolve only the issues of liability and
generic causation.”668 Future claims could not be settled and would have to be resolved
individually, either by trial or another agreed method, such as an arbitration panel.669
Coffee presents his plan as “a compromise [that] makes political sense,”670 an attempt to
accommodate the sometimes disparate interests of plaintiffs, defendants, and courts.
Another approach to the trial structure of mass torts claims addresses present claims
only. This model relies on statistical sampling, extrapolation of damages from a sample
of cases in each injury category, and administrative distribution of the fund to individual
class members. If this sounds familiar, the proposal was used in the Cimino and Hilao
cases and found by one court of appeals to be unconstitutional as applied and by another
court of appeals to be constitutionally adequate in the face of a limited challenge.671 Professor
Samuel Issacharoff, a member of Judge Parker’s team of consultants in Cimino,
presented the case for allowing a court to “determine a formula for the pro rata share of
damages among plaintiffs, relying on a damages matrix that assesses such factors as age,
length of exposure, disease pathology, and actuarial projections of lost income.”672 While
the details of his proposal seem substantive and beyond the Advisory Committee’s authority
under the REA, formulation of required elements of a trial structure may be within
that authority.
d. Adequacy of class representation
Two suggestions for proposed changes in the adequacy of representation standard in
Rule 23 are worth discussing. Professor David Shapiro starts with the proposition that
“the constitutional propriety of class action treatment, and the binding effect of a judgment
on the members of the class, turns on the issue of adequate representation.”673 He
recommends that this point “become the heart of a recrafted rule.”674 Specifically, Shapiro
calls for
667. See id. at 1437.
668. Id. at 1440.
669. See id. at 1440–41.
670. Id. at 1442.
671. See discussion infra notes 199–229.
672. Samuel Issacharoff, Administering Damage Awards in Mass-Tort Litigation, 10 Rev. Litig. 463, 467
(1991).
673. Shapiro, supra note 133, at 958–59.
674. Id. at 959.
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• “Focusing on the adequacy of counsel (rather than worrying about the named
representative);
• “Recognizing that adequacy requires consideration not only of counsel’s experience
and ability but also of the potential existence of conflicts either within the
represented group or between that group and outsiders also represented by the
same counsel;
• “Making sure that counsel remains responsible to the class as a whole by establishing
channels of communication with a sufficiently representative group of class
members and by allowing that group to be heard at critical stages of the process in
order to be sure that the class is not being manipulated either by counsel or by the
adversary; [and]
• “Developing explicit techniques to explore both the fairness of settlements in overall
terms and in terms of distributions to be made among class members, as well as
techniques to insure against disproportionate counsel fees.”675
Professor Coffee has developed an explicit suggestion for addressing the conflict of
interest problem. He would suggest that rule makers “adopt a mildly prophylactic rule
that disqualifies any attorney from serving as a lead counsel (for the class or any subclass)
if the attorney has negotiated an inventory settlement with the same defendants.”676 Another
alternative would be to disqualify an attorney only if the inventory settlement provided
more favorable terms than the proposed class settlement, but that would put a
court in the position of choosing between enforcing the ban and approving a settlement.677
The prophylactic rule would prevent the dilemma from arising. A more direct way of
achieving the same result might be to bar a settlement that provides less favorable terms
for the class than provided by a previous inventory settlement, but that approach appears
to be primarily, if not totally, substantive and outside the rule-making authority.
2. Ethics of mass torts lawyering and judging
The issue of drafting ethical rules for lawyers on subjects of special federal interest has
been raised by the Standing Committee on Rules of Practice. Though at the borderline of
the historic subject matter of the Advisory Committees, drafting rules to govern lawyers
representing plaintiffs and defendants in mass torts contexts might be considered in the
context of a general reexamination of federal ethics rules. As with most of the issues
discussed in this report, we have neither the time nor the space to give this topic the
675. Id.
676. Coffee, supra note 69, at 1445.
677. See id. at 1444–45.
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attention it deserves. Mentioning a few of the major works on the subject, however, may
serve to call attention to the needs and opportunities for mass torts rule making.
Professor Carrie Menkel-Meadow summarizes her analysis of the state of the art of
ethics and mass torts in what she calls “a simple argument: The current ethical rules on
conflicts of interests, limitation of practice, and ethics in negotiation and litigation . . . were
not drafted with the special issues of mass tort class action settlements in mind, and do not, in
my view, provide adequate guidance for how those issues should be resolved.”678 Her conclusion:
“Our legal system, and ethical rules, must confront the tensions between our ideals of
individual justice and the reality of a need for ‘aggregate’ justice.”679Menkel-Meadow describes
clearly the varied interests involved in mass torts litigation, the conflicts of interests,
collusion, and restrictions on practice that arise in mass torts litigation, and documents
her case for new ethical rules. Along similar lines, Judith Resnik calls for new procedural
and ethical rules that would “specify the respective roles of lawyers and clients
and the roles of different lawyers—those on the inside, sitting at the table, and those who
never appear in court.”680 Such rules need to “go hand in hand” with fee award allocations.
681
Looking at one specific ethical issue, aggregate settlements, Paul Rheingold, an experienced
mass torts plaintiffs’ attorney, observes that “any lawyer who handles mass tort
litigation is faced constantly with offers by a defendant to settle an inventory of cases at
one time” and that “there is no ready solution” to the problems posed by such offers.682
Law professors Charles Silver and Lynn Baker analyze in depth the current rule on aggregate
settlements, Model Rule of Professional Conduct 1.8 (g), and conclude that “there
are identifiable reasons for thinking that alternative disclosure and consent rules may
work better for clients in some mass tort cases and that the option of using them should
be available.”683 Both the practitioners’ and the academics’ views converge in identifying
the tension created by the attempt to apply to mass torts a rule designed for a single case
or a small number of cases.
678. Menkel-Meadow, supra note 184, at 1172 (emphasis in original).
679. Id.
680. Resnik, Procedural Innovations, supra note 305, at 1644–45.
681. Id. at 1645. See generally, Resnik et al., supra note 64.
682. Rheingold, supra note 222, at 395.
683. Charles Silver & Lynn A. Baker, Mass Lawsuits and the Aggregate Settlement Rule, 32 Wake Forest L.
Rev. 733, 736 (1997).
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Finally, in a magnum opus that helped define the field of ethics and mass torts, Judge
Jack Weinstein presents a sweeping portrayal of the major ethical dilemmas that confront
lawyers and judges in the mass torts field.684 Judge Weinstein, however, does not see ethical
rules as a panacea, or even a palliative, for those problems. In his view, “[t]oo rigid an
adherence to formal ethical-legal rules constitutes a violation of the basic rule of ethics
itself, requiring a practicable regime in which the needs of the public, the parties, and the
law are in reasonable balance.”685
The above comments are presented as a starting point for considering the ethical issues
for lawyers raised by the demands of mass torts litigation. Because of its interstate
nature and the unique demands that such litigation imposes on federal courts, the time
may be right for federal rule-making bodies to exercise leadership in this area.
3. Conclusion
After starting with an examination of whether mass torts present problems for the legal
system and finding a nonunanimous consensus that they do, we discussed a host of problems
identified by a wide variety of commentators. The breadth of proposals to address
those problems—spanning a full spectrum of case-management, legislative, and rulemaking
innovations—suggests there is a broad consensus that mass torts problems warrant
prompt action. That consensus shows signs of fragility, and outright rupture, when
specific proposals are considered. Molding that fragile consensus into meaningful action
is the challenge that faces the Mass Torts Working Group and any successor group that
may be appointed.
684. Weinstein, Ethical Dilemmas, supra note 30; but cf. Linda S. Mullenix, Mass Tort As Public Law Litigation:
Paradigm Misplaced, 88 Nw. U. L. Rev. 579 (1994); see also Weinstein, Individual Justice, supra note 18.
685. Weinstein, Ethical Dilemmas, supra note 30, at 492.