IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT IN RE ASBESTOS LITIGATION

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1 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT IN RE ASBESTOS LITIGATION ESTEBAN YANEZ ORTIZ, EDEE COCHRAN, LESTER E. TAYLOR, JOHN ALLGOOD AND HENRY EVERS Intervenors - Appellants, v.v.v.v.v. GERALD AHEARN, et al., Appellees. On Appeal from the United States District Court for the Eastern District of Texas, Tyler Division REPLY BRIEF OF ORTIZ APPELLANTS FREDERICK M. BARON SIDNEY POWELL Texas Bar No Texas Bar No BRENT M. ROSENTHAL S. ANN SAUCER Texas Bar No Louisiana Bar No STEVE BAUGHMAN Texas Bar No POWELL & ASSOCIATES 1920 Abrams Parkway, #369 BARON & BUDD Dallas, TX A PROFESSIONAL CORPORATION (214) The Centrum, Suite 1100 (214) (Telecopier) 3102 Oak Lawn Avenue Dallas, Texas (214) (214) (Telecopier)

2 ATTORNEYS FOR ORTIZ APPELLANTS TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES i INTRODUCTION 1 I. THE DISTRICT COURT LACKED JURISDICTION TO APPROVE THE SETTLEMENT, BECAUSE THE COMPLAINT ALLEGED ONLY A FEIGNED DISPUTE AND DID NOT PRESENT THE COURT WITH A CASE OR CONTROVERSY AS REQUIRED BY ARTICLE III. 6 I. THE CLASS DOES NOT SATISFY THE REQUIREMENTS OF FEDERAL RULE OF CIVIL PROCEDURE 23(a). 15 A. The Class s Common Interest in Resolving the Coverage Dispute Between Fibreboard and Its Insurers Did Not Satisfy the Rule 23(a) Prerequisites of Commonality and Typicality. 15 B. Class Representatives Could Not Adequately Represent Absent Class Members With Respect to Unpled Future Claims. 20 C. Class Counsel s Divided Loyalties Rendered Them Inadequate Representatives of the Class Class counsel s loyalties were divided by their simultaneous duties to individual clients and to class members Intra-class conflicts further divided counsel s loyalties The ends do not justify the means. 26 I. DUE PROCESS, THE RULES ENABLING ACT, AND RULE 23 ALL FOR- BID MANDATORY CLASS TREATMENT OF THE INDIVIDUALIZED CLAIMS FOR DAMAGES ALLEGED HERE. 27 A. Under Shutts, Rule 23(b)(1)(B) May Not Constitutionally Be Applied to Individualized Claims for In Personam Damages. 27 B. Equitable Distribution of Fibreboard s Assets Following a Trial of the Claims Alleged Here Would Violate the Rules Enabling Act. 31

3 C. Neither Rule 23(b)(1)(B) Nor Its Historical Antecedents Permit Mandatory Class Certification of In Personam Claims. 35 CONCLUSION 39 CERTIFICATE OF SERVICE 41 Cases TABLE OF AUTHORITIES Ackerman v. Kassar, No , 1993 WL (9th Cir. Aug. 26, 1993) 12 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) 8, 9 Albany Ins. Co. v. Bengal Marine, Inc., 857 F.2d 250 (5th Cir. 1988) 31 ASARCO v. Kadish, 490 U.S. 605 (1989) 8, 9 Ayer v. Kemper, 48 F.2d 11 (2d Cir.), cert. denied, 284 U.S. 639 (1931) 36 Baumgart v. Keene Bldg. Products Corp., 666 A.2d 238 (Pa. 1995) 31 Califano v. Yamasaki, 442 U.S. 682 (1979) 35 Clarke v. Brown, 244 A.2d 514 (N.J. Super. 1968) 31 Commercial Travelers Life Ins. Co. v. Spears, 484 S.W.2d 577 (Tex. 1972) 36 Crowell v. Benson, 285 U.S. 22 (1932) 35 Daily Income Fund, Inc. v. Fox,

4 464 U.S. 523 (1984) 35 Dickinson v. Burnham, 197 F.2d 973 (2d Cir.), cert. denied, 344 U.S. 875 (1952) 34 Duke Power Co. v. Carolina Envir. Study Group, Inc., 438 U.S. 59 (1978) 10 Epstein v. MCA, Inc., 50 F.3d 644 (9th Cir.), cert. granted, 115 S.Ct (1995) 21 Farmers Irrigating Ditch & Reservoir Co. v. Kane, 845 F.2d 229 (10th Cir. 1988) 37 Gardner v. New Jersey, 329 U.S. 565 (1947) 32 Georgine v. Amchem Prods., Inc., 157 F.R.D. 246 (E. D. Pa. 1994), appeal pending, No (3d Cir.) 1 Gerdes v. Travelers Ins. Co., 109 Misc.2d 816, 440 N.Y.S.2d 976 (N.Y. Sup. Ct. 1981) 32 Guffanti v. National Sur. Co., 196 N.Y. 452 (1909) 35 Hartford Life Ins. Co. v. Ibs, 237 U.S. 662 (1915) 35, 36 Hayden v. Elf Atochem, N.A., No In re A.H. Robins Co., 880 F.2d 709 (4th Cir.), cert. denied, 493 U.S. 959 (1989) 39 In re Agent Orange Prod. Liab. Litig. ( Ivy ), 996 F.2d 1425 (2d Cir. 1993), cert. denied, 114 S. Ct (1994) 21 In re Agent Orange Prod. Liab. Litig.,

5 100 F.R.D. 718 (E.D.N.Y. 1983) 30 In re Agent Orange Prod. Liab. Litig., 818 F.2d 216 (2d Cir.), cert. denied, 484 U.S. 926 (1987) 14, 30 In re Beef Indus. Antitrust Litig., 607 F.2d 167 (5th Cir. 1979), cert. denied, 452 U.S. 905 (1981) 19 In re Corrugated Container Antitrust Litig., 643 F.2d 195 (5th Cir. 1981) 18, 26 In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285 (2d Cir. 1992), cert. dismissed, 113 S. Ct (1993) 32 In re Fibreboard Corp., 893 F.2d 706 (5th Cir. 1990) 4, 40 In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106 (7th Cir.), cert. denied, 444 U.S. 870 (1979) 26 In re General Motors Corp. Pick-up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768 (3d Cir.), cert. denied, 116 S. Ct. 88 (1995) In re Manville, 982 F.2d 721 (2d Cir. 1992), modified on rehearing, 993 F.2d 7 (1993) 32, 33 In re Manville, 993 F.2d 7 (2d Cir. 1993) 25 In re Silicone Gel Breast Implant Litig. (MDL 926), Master File CV 92-P (N.D. Ala. Sept. 10, 1993) 30 In re Silicone Gel Breast Implant Prods. Liab. Litig., No. CV 92-P S, 1994 WL (N.D. Ala. Sept. 1, 1994) 14 Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314 (5th Cir. 1985) (en banc), cert. denied, 478 U.S (1986) 4

6 Katchen v. Landy, 382 U.S. 323 (1966) 32 Keene Corp. v. Fiorelli, 14 F.3d 726 (2d Cir. 1993) 7, 8, 13, 14, 33 Los Angeles v. Lyons, 461 U.S. 95 (1983) 10 McDonnell Douglas Corp. v. United States District Court for the Central District of Calif., 523 F.2d 1083 (9th Cir. 1975), cert. denied, 425 U.S. 911 (1976) 36 Moore v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 47 (1971) 9 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) 29, 30, 36 National Super Spuds, Inc. v. New York Mercantile Exch., 660 F.2d 9 (2d Cir. 1981) 9, 20, 21 North Am. Acceptance Corp. v. Arnall, Golden & Gregory, 593 F.2d 642 (5th Cir.), cert. denied, 444 U.S. 956 (1979) 26 Pennsylvania Ass n for Retarded Children v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972) 9 Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) Phipps v. Chicago, R.I. & P. Ry., 284 F. 945 (8th Cir. 1922), cert. dismissed, 262 U.S. 762 (1923) 35 Smith v. Swormstedt, 57 U.S. 288 (1853) 35, 36 State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523 (1967) 37 Supreme Council of the Royal Arcanum v. Green,

7 237 U.S. 531 (1915) 35 Swift & Co. v. United States, 276 U.S. 311 (1928) 12 United States v. Johnson, 319 U.S. 302 (1943) 8, 9 Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980) 35 Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977), cert. denied, 435 U.S. 968 (1978) 32 Other Authorities 11 U.S.C. 305(a)(1) U.S.C. 524(g) & (h) U.S.C F ED. R. CIV.P. 15(b) 7 F ED. R. CIV.P. 23(b)(3) 19 Herbert B. Newberg & Alba Conte, N EWBERG ON CLASS ACTIONS (3d ed. 1992) 19, 34 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, F EDERAL PRACTICE AND PROCEDURE (1984) 10 John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 C OLUM. L. REV.1343 (1995) 2, 14, 16, 17 Patricia Commins, Interview -Fibreboard On Acquisition Trail, Reuters, Limited Newswire, November 30, 1995, available in LEXIS, Nexis Library, curnws File 3 James A. Henderson, Jr., Comment: Settlement Class Actions and the Limits of Adjudication, 80 C ORNELL L. REV.1014 (1980) 16, 17 Richard L. Marcus, They Can t Do That, Can They? Tort Reform Via Rule 23, 80 C ORNELL L. REV.858 (1995) 1, 4, 16, 34, 36

8 John A. Siliciano, Mass Torts and the Rhetoric of Crisis, 80 C ORNELL L. REV.990 (1995) 1, 38 INTRODUCTION The settling parties assert that this proceeding involves a routine class action and a settlement that resolves only common issues regarding the insurance coverage of a tort defendant. And thus, they proclaim, the class action and accompanying settlement are supported by a longstanding historical foundation consisting of [h]undreds of years of antecedents in Anglo-American jurisprudence[.] (Sett. Part. br., 51, 77). But this spin is disingenuous both in its description of the intent and effect of this proceeding and in its recitation of precedent. This is not a suit on an insurance contract, and, as the district court itself acknowledged, because of the novelty of this proceeding, [i]t remains to be seen whether Rule 23 will finally be determined to be flexible enough to embrace such a case. (RE8:3). Indeed, of all the attempts to revamp the methods for compensating victims of mass torts, proceedings such as Ahearn and Georgine v. Amchem Prod., Inc. 1 represent the most radical and controversial of all such reforms[.] John A. Siliciano, Mass Torts and the Rhetoric of Crisis, 80 C ORNELL L. REV.990, 990 (1995) (hereinafter Siliciano, Rhetoric of Crisis ). 2 In truth, what the settling parties attempt to achieve through this action is without precedent. If this Court chooses to enact new law by upholding this settlement, tort victims unfortunate enough to be harmed en masse will no longer have a constitutional right to a meaningful opportunity to be heard, to a jury trial, or to representation by the lawyer of their choice. This case, if it succeeds, will swing open the doors of federal courthouses to validate private agreements prospectively redefining the substantive rights of unsuspecting people who were incapable of giving their consent and who will not even be injured for years to come. 3 Among the many radical innovations characterizing the settling parties effort to redefine the role of federal courts are the following: Neither class counsel nor the representative plaintiffs ever intended to litigate the claims alleged in the complaint, even if settlement negotiations had fallen through. The defendant and its Insurers hand-picked the plaintiffs counsel with whom they would negotiate a class settlement and essentially requested that those counsel initiate a sham lawsuit. The claims alleged in the complaint have no connection with the actual settle-

9 ment. The consideration extracted from the plaintiff class in return for the settlement was not simply the release of the sham claims alleged, but instead the release of unripe future personal injury claims over which no court could have asserted jurisdiction. Millions of potential future victims lost their rights to sue Fibreboard based on a settlement vicariously negotiated by counsel before class representatives were even identified. No party disputes that those representatives, who released the personal injury claims of absent class members, could not have litigated those claims consistently with Rule 23. Because class counsel acceded to the demand for total peace and fabricated a limited fund, non-opt-out class, absent and unknown class members have no opportunity to exclude themselves from a class action releasing individual claims. Class members claims for future personal injuries, although not alleged in the complaint, are released at a time when class members can make no meaningful decision whether the settlement is in their best interests. Having convinced the district court to bind class members to a mandatory settlement on the grounds that it might one day become insolvent, Fibreboard is nonetheless allowed to walk away with all of its non-insurance assets intact and to shift the risk of an inadequate settlement to the plaintiffs. 4 The settlement was negotiated for future claimants by counsel who had conflicting loyalties to present claimants and who were seeking relief from the same limited insurance resources. The settling parties go beyond the pretense that this proceeding constitutes business as usual for the federal courts. In addition, the settling parties confuse Ahearn with Rudd by claiming that Ahearn does not resolve the individual personal injury claims of class members against Fibreboard (see, e.g., Sett. Part. br., 73 n., 78). Indeed, the settling parties baldly proclaim that the Global Settlement does not resolve how much money individual claimants will receive; that is something that would be determined on an individual basis in the future under the Trust Distribution Process... Id. at 78 (bold added). In other words, the settlement does not resolve how much individual claimants will receive, silly goose; that will be determined under the settlement. But this case, unlike Rudd, is not about the legality of resolving Fibreboard s insurance dispute, which itself provides the Insurers total peace. Although the settling parties would apparently now like to rewrite the class complaint to seek an equitable distribution of insurance proceeds, 5 their pleading actually seeks individual in personam damages against Fibreboard for asbestos-related injuries, and the Global Settlement itself releases alpresent and future asbestos-related personal injury claims of class members against Fibreboard in addition to fixing the procedure through which those claims are to be liquidated. The raison d etre ofahearn is to extinguish the individual rights of class

10 members to sue Fibreboard, thereby giving Fibreboard the total peace it covets. Otherwise, the Rudd case alone is enough to avoid the risks of a Coverage Case loss. As for their siren song that the Global Settlement is superior to the Trilateral Agreement because the Global avoids some of the costs inherent to gaining access to the courts, the chorus of settling parties is singing to the wrong branch of government. If Congress wished to reconfigure the entire American system for compensating tort victims, then, perhaps, it could do so. 6 See In re Fibreboard Corp., 893 F.2d 706, 712 (5th Cir. 1990) (arguments for changing the tort system are compelling, but they are better addressed to the representative branches ). But federal courts cannot prospectively eliminate the substantive state law rights of absent class members by mandating that they accept the terms of a settlement to which they did not and could not give effective consent. 7 If the Trilateral is more expensive to the class than the Global, it is only because exercising the constitutional right to one s day in court carries its own costs. Thus, the policy arguments made by the settling parties and the district court in elevating the Global above the Trilateral should be directed to state and federal legislative bodies who at least arguably have the power to substitute fair administrative compensation schemes for the right to sue in court. The Global Settlement here redefines the function and authority of federal courts and eviscerates the right to individual due process. The settling parties insist that the risk of Fibreboard losing its insurance coverage demanded that class members individual personal injury claims be resolved through a unitary adjudication. But this ignores the reality, recognized in the class complaint itself, that those individual injury claims were not made against any common or limited fund (insurance or otherwise)--they were asserted against Fibreboard, a non-bankrupt company. The only interest common to all class members was in avoiding a loss of Fibreboard s insurance coverage. If class members had sought only to resolve that interest, perhaps by intervening in the Coverage Case in California state court, then their claims would indeed have required unitary adjudication. 8 But that was not the relief sought in this federal complaint, nor could it have been. The mere fact that class members were interested in the outcome of Fibreboard s coverage dispute did not create a justiciable federal controversy between the class and Fibreboard. But even if those claims against the Insurers could have been adjudicated by the class of potential asbestos

11 victims and had been included in the complaint, such claims could not support this settlement, which releases the individual damages claims of the class against Fibreboard. Neither due process nor Rule 23 permits the settling parties to force their own private compensation system upon absent class members, and the risks imposed by Fibreboard s insurance coverage litigation do not change the law. Class members must be allowed to exercise meaningful individual control over their individual in personam damages claims, unless and until Fibreboard actually becomes a common fund by filing for bankruptcy or its functional equivalent--an unlikely result if Rudd is affirmed. Such meaningful control requires that class members here be afforded an unfettered right to exclude themselves from the class, if and when they develop a physical injury as a result of their exposure to asbestos. In depriving absent class members of this fundamental right of access to the courts, the Global Settlement is decidedly unfair, in addition to being inherently illegal. Both because this settlement perverts the institutional authority of federal courts and eliminates or discounts the constitutional and state law rights of absent class members, this Court must reverse the judgment of the district court. I.I.I.I.I. THE DISTRICT COURT LACKED JURISDICTION TO APPROVE THE SETTLEMENT, BECAUSE THE COMPLAINT ALLEGED ONLY A FEIGNED DIS- PUTE AND DID NOT PRESENT THE COURT WITH A CASE OR CONTRO- VERSY AS REQUIRED BY ARTICLE III. The district court could issue an order approving the class action settlement in this case only if the court had subject matter jurisdiction over the proceeding itself, as framed by the pleadings and, in particular, by the class action complaint (Ortiz br., 13-25). Yet, the class complaint did not properly invoke the district court s subject matter jurisdiction because the claims it asserted were feigned and therefore did not present the court with a case or controversy to decide. The claims had already been settled at the time of suit, and, more importantly, they were transparently pretextual 9 because neither the class plaintiffs nor class counsel ever intended to litigate them if the proposed settlement fell through. The settling parties contend that the class action complaint that they brought to the district court on September 9, 1993 presented that court with a justiciable controversy. But the disputes cited by the settling parties appear nowhere in the class complaint, which merely

12 alleges garden-variety personal injury claims against Fibreboard. Indeed, the settling parties brief contains no discussion at all of the claims actually asserted in the complaint. Instead, the settling parties are forced to point to disputes other than those alleged in the class complaint in attempting to supply the requisite controversy (see Sett. Part. br., 56 ( [f]or more than fifteen years the Insurers, Fibreboard and its asbestos claimants had been in extremely sharp conflict with each other ); id. ( there has been nothing feigned or collusive about the negotiations that brought the parties to court (quoting FOF 1, emphasis added)); id. n.* ( Continental s contention that Fibreboard s assignment settlements vitiated the insurance coverage, and Fibreboard s arguments that Continental had no right to make such a claim, clearly posed very real and substantial controversies ); id. at 63 (the controversy in this case did not concern individual claims, but instead concerned whether, at the time Class members did develop asbestos-related illnesses there would be a source from which they could recover damages ); id. at 75 (the case could have been certified for litigation purposes because the Class complaint could have recited a claim... that Fibreboard was entitled to coverage from the Insurers (emphasis added)). 10 The settling parties insistence that the existence of these extraneous disputes allowed the district court to exercise jurisdiction to approve the Global Settlement implicitly concedes the essential point made in the Ortiz appellants opening brief: the claims for damages in the class complaint were feigned and did not properly invoke the district court s subject matter jurisdiction. The settling parties never deny that the exposure-only claims for damages asserted by named plaintiffs Ahearn, Dennis, and Jeep--which were the only claims for relief made in the complaint--were entirely pretextual, were never intended to be pressed against Fibreboard, and were alleged merely for the purpose of invoking the subject matter jurisdiction of the court so that it could approve the Global Settlement. But pretextual, feigned claims are not cases or controversies within the meaning of Article III. United States v. Johnson, 319 U.S. 302, 304 (1943) (finding no jurisdiction because case did not involve honest and actual antagonistic assertion of rights (citation omitted; emphasis added)); Keene Corp. v. Fiorelli, 14 F.3d 726, (2d Cir. 1993) (finding no case or controversy because manufacturer s request for declaratory judgment that it was not liable to the class was transparently pretextual and was undermined by the manufacturer s request that the case be decer-

13 tified if the case could not be settled--analogous to the settling parties request here that the case be certified for purposes of settlement only (JA4:1)). Citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) and ASARCO v. Kadish, 490 U.S. 605 (1989), the settling parties argue that Article III s case-or-controversy requirement is met if the plaintiff seeks a ruling that will affect the tangible legal rights of the parties, thereby touch[ing] the legal relations of parties having adverse legal interests (Sett. Part. br., 56-57). The Ortiz appellants do not dispute that this abstract proposition applies to obtaining advisory opinions in declaratory judgment suits. Rather, they contend that it is not applicable in this case, because the claims upon which jurisdiction is based (the personal injury, mental distress, and medical surveillance claims in the complaint) are fabricated and fatally pretextual. There was no contention in either Aetna or ASARCO that the dispute had been feigned merely to invoke the district court s jurisdiction to effect a private settlement extinguishing wholly different claims. Cf.National Super Spuds, Inc. v. New York Mercantile Exch., 660 F.2d 9 (2d Cir. 1981). 11 After relying on authority that has nothing to do with the permissibility of filing a feigned case, the settling parties dismiss the Ortiz appellants authorities as totally inapposite, (Sett. Part. br., 61). Despite acknowledging that United States v. Johnson, 319 U.S. 302 (1943), Moore v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 47 (1971), and Pennsylvania Ass n for Retarded Children v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972), show that feigned suits are not justiciable, the settling parties contend, without any explanation, that there is nothing of the sort here. (Sett. Part. br., 62). However, as in Johnson and Moore, the pretextual nature of the plaintiffs claims in this case is clear from the pleadings and the testimony, and is not even disputed by the parties themselves. The cases explaining Article III s prohibition against feigned cases are hardly inapposite ; rather, they require the dismissal of this action. 12 The possibility that exposure to a toxic substance may constitute an injury-in-fact in some circumstances, with respect to some sortsofrelief,(see, e.g.,duke Power Co. v. Carolina Envir. Study Group, Inc., 438 U.S. 59 (1978)), does not support a conclusion that the claims asserted in this complaint were anything more than a sham. The exposure-only claims for monetary damages were not legally viable in most jurisdictions. Class counsel, with

14 more than 50 years of collective experience litigating asbestos claims, had never once previously asserted an exposure-only claim for damages, and class counsel candidly admitted that they never intended to assert such claims against Fibreboard in the absence of the settlement (JA7:456-57, , 950, , 1593). The fact that other litigants,in other contexts, have asserted exposure-only claims seeking other types of relief does not contradict the showing in this case that the class plaintiffs did not present the Court with a bona fide controversy. 13 The settling parties identify three specific reasons why the concededly pretextual nature of the claims asserted does not defeat the district court s jurisdiction to approve the proposed settlement. First, they suggest that there was no need for a pretext to invoke the court s jurisdiction to approve a resolution of future claims, because [t]his dispute was not over whether or not to resolve those claims now on an individual basis but rather was over whether at the time Class members did develop asbestos-related illnesses there would be a source from which they could recover damages[,] (Sett. Part. br., 63). But this response is a non sequitur. If there was no need for the pretextual exposure-only injury claims in the complaint, then why did the settling parties complaint assert only such claims? The obvious answer is that only through alleging a claim for monetary damages against Fibreboard could the parties attempt to bring before the court a settlement that determines class members rights against Fibreboard. And, despite the settling parties repeated protestations to the contrary, the settlement in this case (unlike the settlement in Rudd) releases each individual class member s claims against Fibreboard. 14 There was, then, a need for the personal injury allegations in the complaint. Without them, the class members personal injury claims could not be settled. And the settling parties explanation that the case was not about resolution of personal injury claims, but was instead about the creation of a fund out of which such claims could be compensated, merely confirms that the personal injury claims against Fibreboard alleged in the complaint were indeed an artifice. The settling parties next contend, in a similar vein, that appellants fixation on the pretextual nature of the claims alleged in the complaint, the operative document for purposes of assessing jurisdiction, is entirely misplaced because [t]he thrust of the Complaint and the Global Settlement is to secure disputed funds now so that they stand a better chance of being available in the future, (Sett. Part. br., 65). This contention is simply false. The fourteen-

15 page complaint--unlike the pleadings in Rudd--does not seek to secure disputed funds ; it seeks only to determine Fibreboard s liability to the named plaintiffs and similarly situated class members on the personal injury claims alleged (JA1:1-14). 15 And reference to the Global Settlement reveals the same objective. Although the Global Settlement creates a fund for compensating asbestos victims out of the proceeds of the disputed insurance coverage, its primary purpose--when compared with the Trilateral Settlement, which secures the same disputed funds --can be only to release all class members personal injury claims against Fibreboard. The unavoidable fact is that the complaint alleges, and the Global Settlement extinguishes, personal injury claims that the named plaintiffs and class counsel did not and could not genuinely assert or litigate against Fibreboard. For this reason, the settling parties reliance on Ackerman v. Kassar, No , 1993 WL (9th Cir. Aug. 26, 1993), Swift & Co. v. United States, 276 U.S. 311 (1928), and the other cases cited in their brief at pp , is misplaced. In each of these consent decree cases, the complaint used by the parties to invoke the subject matter jurisdiction of the court alleged a bona fide, genuine dispute that could have and, but for the settlement, would have, been litigated. Here, in contrast, the settling parties have never suggested that the named plaintiffs would pursue the relief they demand in the complaint. Rather, they conceded they would not. 16 The third reason for affirming the district court s exercise of jurisdiction, the settling parties contend, is that the cases cited by the Ortiz appellants do not support the proposition that the subjective intent to litigate is relevant in determining whether a justiciable case or controversy is present. However, a plain reading of Keene Corp. v. Fiorelli, 14 F.3d 726 (2d Cir. 1993), undermines the settling parties attempt to distinguish it (Sett. Part. br., 66-67). As the settling parties point out, the asbestos manufacturer in Keene sued a class of present and future asbestos personal injury claimants seeking court assistance in achieving a Rule 23(b)(1)(B) settlement of its liabilities. But that settlement was not the only relief that the manufacturer requested. In an attempt to present the court with a justiciable controversy, the manufacturer in Keene also sought a declaratory judgment that it was not liable to any present or future asbestos claimant. 14 F.3d at 729. The court, recognizing that the real purpose of the suit was to manufacture a settlement, rejected that declaratory claim as transparently

16 pretextual and non-justiciable: if Keene truly sought a declaratory judgment regarding its asbestos liabilities, Keene would have no reason to ask that the class be decertified in the event a settlement is not reached. 14 F.3d at 732. Similarly, the claims in the complaint here are a transparently pretextual contrivance that did not present the district court with a real case or controversy. As in Keene,ifthe claims alleged in the complaint were genuine, the plaintiffs would have had no reason to ask that the case be certified for settlement purposes only. And the fact that the settlement in Keene had not yet been achieved does not distinguish that case from this one. Their pretextual claims aside, the class plaintiffs here and the manufacturer in Keene asked the court for precisely the same thing--approval of a negotiated plan for distribution of a portion of the manufacturers available assets to present and future asbestos claimants. Neither in Keene, nor in this case, did the plaintiffs hinge their plea for a settlement to any bona fide claim of substantive right. This failure to assert a legitimate, concrete, good faith claim of right vis-a-vis the defendant is fatal to the district court s subject matter jurisdiction. The settling parties threaten that application of the case or controversy requirement to federal class actions would render Rule 23(e) a nullity. (Sett. Part. br., 60 n*). But their threat rings hollow. The Ortiz appellants do not contend that a proposed settlement of bona fide claims divests the court of jurisdiction to evaluate a class action settlement under Rule 23(e). 17 What they contend instead is that feigned, pretextual claims, even if alleged in a class action, present no case in which the class action rules may be applied. Rule 23 does not substitute for the constitutional requirement of a case or controversy for federal jurisdiction. II. THE CLASS DOES NOT SATISFY THE REQUIREMENTS OF FEDERAL RULE OF CIVIL PROCEDURE 23(a). A. The Class s Common Interest in Resolving the Coverage Dispute Between Fibreboard and Its Insurers Did Not Satisfy the Rule 23(a) Prerequisites of Commonality and Typicality. The settling parties do not deny that the district court relied on the common interest of class members in the proposed settlement, rather than on the commonality and typicality of the claims alleged by the named plaintiffs against Fibreboard (Sett. Part. br., 68-75). The settling parties also tacitly concede that the claims alleged by the named plaintiffs in the

17 complaint do not present sufficient questions of law or fact common to the class, and are not sufficiently typical of the claims of the class, to permit certification under Rule 23(a). Id.; compare Ortiz br., at (explaining that nationwide class of present and future personal injury claims is not certifiable under Rules 23(a)(2) and 23(a)(3)). The settling parties thus apparently agree that in the absence of the settlement, the claims asserted by the named plaintiffs against Fibreboard could not be certified. Instead, the settling parties contend that the district court did not need to find that the claims against Fibreboard alleged in the complaint presented common questions of law or fact and were typical of those of the class. Rather, according to the settling parties, the district court only had to find (as it did) that all class members had a common interest in assuring that Fibreboard have adequate insurance coverage to pay future asbestos claims (Sett. Part. br., 68-69). Put another way, the settling parties contend that even though the claims alleged by the named plaintiffs could not support certification of a contested class action, the existence of the settlement itself provides the requisite commonality and typicality, and allowed the case to be certified under Rule 23(a). However, this bootstrap approach to class certification directly conflicts with the Third Circuit s opinion in In re General Motors Corp. Pick-up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768 (3d Cir.), cert. denied, 116 S. Ct. 88 (1995) ( GM Trucks ). Using the settlement as a means of meeting Rule 23 s class certification requirements has also been condemned by the overwhelming weight of recent commentary on the issue. 18 As these authorities explain, Rule 23(a) requires that the plaintiffs claims as expressed in the class complaint, not their interests in some more general sense, be common and typical. GM Trucks, 55 F.3d at (rejecting view that commonality and typicality determination could be based on the relative rewards to the class members [under the settlement] rather than based on the various legal claims of class members ). The commonality and typicality requirements help to assure that the class claims are cohesive and similar enough to resolve--whether by trial or by settlement--in a collective disposition. As the GM court recognized, the class action device allows judicial resolution of the rights of persons not before the court precisely because the prerequisites of commonality, typicality, and adequacy of representation, in addition to the other protections of Rule 23, safeguard the due process rights of absentees. GM Trucks, 55 F.3d

18 at 796. To dilute the safeguards that allow collective disposition of absent class members individual claims merely because both the named class representatives and the defendant agree on a remedy would effectively read[] the commonality and typicality requirements out of the Rule, 19 would undermine the rationale for the rule permitting class actions, and would erode public confidence in the federal courts generally and in class actions in particular. 20 Nevertheless, the settling parties insist that the district court s findings of commonality and typicality, based exclusively on the class members interest in the settlement, are sustainable notwithstanding GM Trucks. They make three arguments in this regard. First, they contend that the language in GM Trucks condemning the practice of relying on a settlement to support findings of commonality and typicality is dicta. To the contrary, the Third Circuit unequivocally directed the district court to consider on remand the commonality and typicality of the claims without reference to the settlement. 55 F.3d at The Third Circuit s language-- a class is a class is a class (55 F.3d at 799)--unmistakably conveys its view that Rule 23(a) prerequisites are not relaxed merely because the named parties propose a settlement. And the Third Circuit s recognition that the risks involved in maintaining class status may be considered in evaluating the fairness of the settlement is not, as the settling parties contend, inconsistent with its holding that settlement classes must meet the prerequisites of Rule 23(a) (Sett. Part. br., 70). Indeed, the Third Circuit explicitly recognized that the risks of maintaining class status would not support approval of a proposed settlement if there were insurmountable barriers to class treatment, 55 F.3d at 818--as there are here. Second, the settling parties contend that GM Trucks is simply wrong, inconsistent with the law of this and four other Circuits, and unsupported by the language of Rule 23. (Sett. Part. br., 71). Again, each of these contentions is demonstrably false. Taking them in reverse order, Rule 23(a) requires commonality and typicality of claims or defenses ; it is not satisfied by common interests in a settlement, as the settling parties suggest. GM Trucks isnot inconsistent with the law of this Circuit; no Fifth Circuit decision has ever held that determinations of commonality and typicality may be subsumed within a decision on whether the settlement is fair to class members. 21 There is no aberration in GM Trucks rule permitting deferral of the certification determination until the final hearing on the fairness of the settlement, but nonetheless requiring that the foundations of the Rule be satisfied (see Sett. Part.

19 br.,71). 22 Settlement classes exist to permit negotiations by a court-authorized representative of the putative class to proceed despite the absence of an unconditional order of certification-- not to dispense with the prerequisites of Rule 23. See, e.g.,gm Trucks, 55 F.3d at (approving the use of the provisional or conditional conception of the settlement device); In re Beef Indus. Antitrust Litig., 607 F.2d 167, 177 (5th Cir. 1979), cert. denied, 452 U.S. 905 (1981) (approving the use of a temporary settlement class ); 2 Herbert B. Newberg & Alba Conte, N EWBERG ON CLASS ACTIONS 11.27, at (3d ed. 1992) (the actual class ruling is deferred in these circumstances until after hearing on the settlement approval, at which time the court applies the class action requirements to determine whether the action should be maintained as a class action ). In this connection, the settling parties argument that no conceivable policy reason supports the requirement that settlement classes... have to pre-qualify as litigation classes (Sett. Part. br., 72) is unresponsive. As described above, important policy reasons (i.e., the due process rights of absent class members) do support the requirement that such classes qualify for class treatment under Rule 23(a). Absent class members have at least as significant a due process interest in being represented during negotiations by plaintiffs who have common and typical claims as they do in being adequately represented for purposes of litigation. See GM Trucks at 799 ( Certifying a class without the existence of questions common to the class (or where the class representatives claims are not typical) perverts the class action process and converts a federal court into a mediation forum for cases that belong elsewhere, usually in state court ). While settlement may affect a court s determination of whether common issues predominate and of whether a class action is superior to other available methods of resolving the controversy (FED. R. CIV.P. 23(b)(3)), the economi[es] of class resolution (Sett. Part. br., 72) do not affect and must not eviscerate the due process protections embodied in Rule 23(a). Third, the settling parties contend that claims not alleged in the complaint--claims by class members against Fibreboard s Insurers for a declaratory judgment concerning the extent of the Insurers liability to Fibreboard under the disputed insurance policies--could have been certified for litigation, and ask the Court to pretend that such a claim was actually alleged (Sett. Part. br., 75). But even if class members had properly asserted these hypothetical

20 claims, certification of the claims surely would not have supported the settlement of the class members different claims against Fibreboard.See National Super Spuds, Inc. v. New York Mercantile Exch., 660 F.2d 9 (2d Cir. 1981). Rather, those claims support no more than a settlement of the class members indirect rights against the Insurers--a settlement lawfully achieved in the companion Rudd case. These claims, unalleged in Ahearn, which are the basis for a different settlement in Rudd, cannot support the district court s findings of commonality and typicality in this case. B. Class Representatives Could Not Adequately Represent Absent Class Mem- bers With Respect to Unpled Future Claims. The settlement s release of unripe future claims for individual personal injuries provides the most dramatic example of this action s failure to satisfy the representational requirements of Rule 23(a). Settlements reached under Rule 23 rest on the legal fiction that absent class members have consented to the agreement vicariously through the class representatives, who can adequately represent them solely because of their shared interests in resolving common and typical claims. Thus, the scope of the class representatives authority to release claims on behalf of absent class members is necessarily limited to the claims held in common with the class. See National Super Spuds, Inc. v. New York Mercantile Exch., 660 F.2d 9, (2d Cir. 1981). Such vicarious representative authority cannot extend to claims that do not even yet exist. The settling parties attempt to distinguish Super Spuds because the notice in that case failed to inform class members that their claims were being released (Sett. Part. br., 76 n*). But that distinction ignores the holding of Super Spuds, which rested entirely on the improper release of claims that did not arise from the facts pled in the class complaint. 660 F.2d at (authority of class representatives limited to claims described in class complaint); see also Epstein v. MCA, Inc., 50 F.3d 644, (9th Cir.), cert. granted, 115 S.Ct (1995) (authority of class representatives to settle limited to claims based on the identical factual predicate as the claims alleged). In both Super Spuds and Epstein, as here, the class settlements improperly released claims that went beyond the scope of the class complaint. Although insuper Spuds Judge Friendly also expressed concern regarding the failure of the notice to inform class members of the release of additional claims, the inadequate notice was not the

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