In the past decade, the debate over settlement classes has moved considerably beyond the "sturm und drang" inspired by the epic settlement classes in Amchem Products, Incorporated. v. Windsor' and Ortiz v. Fibreboard Corporation. Whereas Amchem asked whether and on what terms federal courts were authorized to approve settlement classes, and Ortiz asked whether a mandatory, limited- fund global asbestos settlement was sustainable, the settlement class issue du jour focuses on the ability of litigants to collaterally attack settlements in remote forums and at remote times.
Because the collateral attack problem is so vital to the sanctity of settlement classes, the locus of the debate over the future of settlement classes is centrally located in the issue of adequacy. Today, it seems beyond cavil that the federal class action rule authorizes settlement classes, even without a specific provision for settlement classes in Rule 23 of the Federal Rules of Civil Procedure. Indeed, the great rulemaking debate of the late 1990s over the possible amendment of Rule 23(b) to include a new subdivision that would have specifically authorized settlement classes now seems a quaint tempest in the class action teapot.
During the past two decades, the courts, practicing attorneys, academic commentators, rulemaking committees, and interested spectators have come a long way in the class action wars. In addition to providing a rule basis for interlocutory appeal of class certification orders in 1998, the Advisory Committee on Civil Rules amended Rule 23 in 2003 to add new subsections dealing with appointment of class counsel and attorney fees. In large measure, these new provisions are relatively unimaginative, noninnovative, and work to simply codify existing case law. The Advisory Committee also tinkered around the edges of settlement classes, though again doing so without fully engaging the most pressing issues relating to settlement classes.
Linda S. Mullenix,
Taking Adequacy Seriously: The Inadequate Assessment of Adequacy in Litigation and Settlement Classes,
57 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol57/iss5/5