Document 10KL5yrR40qQpkxY15XONX1Lq

FILE NAME Insurance Industry INS DATE 1997 DOC INS062 DOCUMENT DESCRIPTION Legal - Supreme Court Decision Amchem Products Inc. v Windsor Bench Opinion NOTE Where it is feasible a syllabus headnote will be released as is done in connection with this case at the time the opinion is issued being The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader See United States v Detroit Timber & Lumber Co. 200 U. S. 321 337 SUPREME COURT OF THE UNITED STATES Syllabus AMCHEM PRODUCTS INC ET AL v WINDSOR ET AL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 96 270Argued February 18 Decided June 25 1997 This case concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a action certification sought to achieve global settlement of current and future asbestos claims Never intending to litigate the settling petitioners and the representatives of the plaintiff class described presented to the District Court a class action complaint an answer a proposed settle- ment agreement and a joint motion for conditional class certification The complaint identifies nine lead plaintiffs designating them and members of their families as representatives of a class comprised of all persons who had not previously sued any of the asbestos- manufacturing companies that are petitioners in this suit but who 1 had been occupationally or through the occupational ex- exposed posure of a spouse or household member asbestos attributable to a petitioner or 2 whose spouse or family member had been so Potentially hundreds of thousands perhaps millions of individuals may fit this description All named plaintiffs alleged exposure more than half of them alleged already manifested physical injuries the others called exposure claimants alleged that they had not yet manifested any asbestos condition The complaint delineated no subclasses all named plaintiffs were designated as represent- atives of the entire class . The exhaustive agreement inter alia 1 proposed to settle and to preclude nearly all class members from litigating claims not previously filed against petitioners 2 detailed an administrative mechanism and a schedule of payments to compensate class members who meet defined exposure and medical criteria 3 described four categories of compensable cancers and nonmalignant conditions and specified the I II AMCHEM PRODUCTS INC v WINDSOR Syllabus range of damages to be paid qualifying claimants for each 4 did not adjust payments for inflation 5 capped the number of claims payable annually for each disease and 6 denied compensation for family members consortium claims for exposure plaintiffs claims for emotional distress enhanced risk of disease and medical monitor- ing and for pleural claims involving lung plaques but no physical impairment even if otherwise applicable state law recognized such claims The District Court approved the settling parties plan for giving notice to the class and certified the proposed class for settlement only The court found over numerous challenges raised by the objectors that the settlement was fair the court's jurisdiction properly invoked and representation and notice adequate Pending the issuance of a final order the District Court enjoined class members from separately asbestos suits in any federal or state court The Third pCiurrcsuuiitngultimately vacated the District Court's orders Although the objectors maintained that the case was not justiciable and that the exposure claimants lacked standing to sue the Court of Appeals declined to reach these issues reasoning that they would not exist but for the class certification The court acknowledged that a class action may be certified for settlement only but held that the certification requirements of Rule 23 must be met as if the case were going to be litigated without taking the settlement into account The court nevertheless homed in on the settlement's terms in examining aspects of the case under Rule 23 criteria The Court of Appeals explained that certification was inappropriate because the class failed to satisfy among other provisions Rule 23 requirement that questions common to the class predominate over other questions and Rule 23 adequacy of representation requirement The court therefore ordered the class decertified Held 1. The class certification issues are dispositive here in that their resolution is logically antecedent to the existence of any Article III issues This Court therefore declines to resolve objectors assertions that no justiciable case or controversy is presented and that the exposure claimants lack standing to sue Cf. Arizonans for Official English v Arizona 520 U. S. The Court follows this path mindful that Rule 23's requirements must be interpreted in keeping with Article III constraints and with the Rules Enabling Act's instruction that procedural rules not abridge enlarge or modify any substantive right Pp 17-18 2. The sprawling class the District Court certified does not satisfy Rule 23's requirements Pp 18 35 a Rule 23 gained its current shape in a 1966 revision Its AMCHEM PRODUCTS INC v WINDSOR III Syllabus subdivisions a and b enumerate criteria that must be met for a class to be certified Rule 23 was the most adventuresome innovation of the 1966 Amendments permitting judgments for money that would bind all class members save those who opt out To gain certification under Rule 23 a class must satisfy the requirements of Rule 23 among them that named class representatives will fairly and adequately protect class interests the class must also meet the Rule 23 criteria that common questions predominate over any questions affecting only individual members and that class resolution be superior to other available methods for the fair and efficient adjudication of the controversy To alert Rule 23 class members to their right to opt out Rule 23 requires the best notice practicable under the circumstances Rule 23 Finally Rule 23 specifies that a class action cannot be settled without the court's approval and that notice of the proposed compromise must be given to all class members in such manner as the court directs Pp 18-25 b Because settlement is relevant to the propriety of class certifi- cation the Third Circuit's statement that Rule 23 and b must be satisfied without taking into account the settlement bears modifi- cation But the Third Circuit did not in fact ignore the settlement The court homed in on settlement terms in explaining why it found absentees interests inadequately represented The Third Circuit's inspection of the settlement agreement in that regard was altogether Whether trial would present intractable management prob- proper lems see Rule 23 is not a consideration when settlement certification is requested for the proposal is that there be no trial But other specifications of the rule designed to protect absentee class members by blocking unwarranted or overbroad class definitions are of vital importance in the settlement context for the court in such a case will lack the opportunity to adjust the class as litigation unfolds See Rule 23 and d And of overriding importance courts must be mindful that they are bound to enforce the rule as now composed for Federal Rules may be amended only through the extensive deliber- ative process Congress prescribed Rule 23 settlement prescription was designed to function as an additional requirement not a superseding direction to the qualifying criteria of Rule 23 and b Cf. Eisen v Carlisle & Jacquelin 417 U. S. 156 176 177 The dominant concern of Rule 23 and thaatproposed class have sufficient unity so that absentees can fairly be bound by class representatives decisions when settlement rather than trial is proposed Those subdivisions safeguards provide practical checks in the settlement context First their standards serve to inhibit class certifications dependent upon the court's gestalt judgment or overarch- ing impression of the settlement's fairness Second if a Rule 23 IV AMCHEM PRODUCTS INC v WINDSOR Syllabus fairness inquiry controlled certification eclipsing Rule 23 and b and permitting certification despite the impossibility of litigation both class counsel and court would be disarmed Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer and the court would face a bargain proffered for its approval without benefit of adversarial investigation Federal courts in any case lack authority to substitute for Rule 23's certifica- tion criteria a standard never adopted by the rulemakers if a settlement is fair then certification is proper Pp 25-28 c Rule 23 predominance requirement is not met by the factors relied on by the District Court and the settling parties class members shared experience of asbestos exposure their common interest in receiving prompt and fair compensation while minimizing the risks and transaction costs inherent in the tort system's asbestos litigation process and the settlement's fairness The benefits asbestosexposed persons might gain from a grand compensation scheme is a matter fit for legislative consideration but it is not pertinent to the predominance inquiry That inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy questions that preexist any settlement and tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation In contrast the Rule 23 inquiry protects unnamed class members from unjust or unfair settlements agreed to by fainthearted or interested class representatives the Rule 23 prescription was not designed to assure the class cohesion that legitimizes representative action in the first place If a common interest in a fair compromise could satisfy Rule 23 predominance requirement that vital prescription would be stripped of any meaning in the settlement context The predominance criterion is not satisfied by class members shared experience of asbestos exposure given the greater number of questions peculiar to the several categories of class members and to individuals within each category and the significance of those uncommon questions No settlement class called to the Court's attention is as sprawling as the one certified here Although mass tort cases arising from a common cause or disaster may depend- ing upon the circumstances satisfy the predominance requirement the Advisory Committee for the 1966 Rule 23 revision advised that such cases are ordinarily not appropriate for class treatment and warned district courts to exercise caution when individual stakes are high and disparities among class members great The certification in this case does not follow the counsel of caution That certification cannot be upheld for it rests on a conception of Rule 23 pre- dominance requirement irreconcilable with the rule's design Pp 28-31 AMCHEM PRODUCTS INC v WINDSOR Vv Syllabus d Nor can the class approved by the District Court satisfy Rule 23 adequate representation inquiry That inquiry serves to uncover conflicts of interest between named parties and the class they seek to represent See General Telephone Co. of Southwest v Falcon 457 U. S. 147 157 15n8 13. Representatives must be part of the class and possess the same interest and suffer the same injury as the class members E.g. East Tex Motor Freight System Inc. v Rodri- guez 431 U. 395 403. In this case named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses In significant respects the interests of those within the single class are not aligned Most saliently for the currently injured the critical goal is generous immediate payments That goal tugs against the interest of exposure plaintiffs in ensuring an ample protected fund for the future Cf. General Telephone Co. of Northwest v EEOC 446 U. S. 318 331 The disparity between the currently injured and exposure categories of plaintiffs and the diversity within each category are not made insignificant by the District Court's finding that petitioners assets suffice to pay settled claims Although this is not a Rule 23 limited fund case the settlement's terms no inflation adjustments only a few claimants per year permitted to opt out at the back end and consortium claims extinguished essential allocation decisions designed to confine compensation and to limit defendants liability Thus the settling parties achieved a global compromise with no structural assurance of fair and adequate repre- sentation for the diverse groups and individuals affected The Third Circuit found no assurance here that the named parties operated under a proper understanding of their representational responsibili- ties That assessment is on the mark Pp 31-34 e In light of the conclusions that the class does not satisfy the requirements of common issue predominance and adequacy of representation this Court need not rule definitively on the adequacy of the notice given here The Court recognizes however the gravity of the question whether class action notice sufficient under the Constitution and Rule 23 could ever be given to legions so unselfconscious and amorphous as the class certified by the District Court Pp 34 35 f The argument is sensibly made that a nationwide adminis- trative claims processing regime would provide the most secure fair and efficient means of compensating victims of asbestos exposure Congress however has not adopted such a solution Rule 23 which must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view cannot carry the large load the settling parties and the District Court heaped upon it P. 35 VI AMCHEM PRODUCTS INC v WINDSOR Syllabus 83 F.3d F.3d 610 affirmed GINSBURG J. delivered the opinion of the Court in which REHNQUIST C. J. and SCALIA KENNEDY SOUTER and THOMAS JJ joined BREYER J. filed an opinion concurring in part and dissenting in part in which STEVENS J. joined O'CONNOR J. took no part in the consideration or decision of the case NOTICE This opinion is subject to formal revision before publication in the preliminary print of the United States Reports Readers are requested to the United notify the Reporter of Decisions Supreme Court of States Wash- typographical ington D.C. 20543 ofany or other formal errors in order that corrections may be made before the preliminary print goes to press SUPREME COURT OF THE UNITED STATES No. 96-270 AMCHEM PRODUCTS INC ET AL PETITIONERS v GEORGE WINDSOR ET AL ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT June 25 1997 JUSTICE GINSBURG delivered the opinion of the Court This case concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a action certification sought to achieve global settlement of current and future asbestos claims The class proposed for certification potentially encompasses hundreds of thousands perhaps millions of individuals tied together by this commonality each was or some day may be adversely affected by past exposure to asbestos products manufactured by one or more of 20 companies Those companies defendants in the lower courts are petitioners here The United States District Court for the Eastern District of Pennsylvania certified the class for settlement only finding that the proposed settlement was fair and that representation and notice had been adequate That court enjoined class members from separately pursuing asbestos personal suits in any court federal or state pending the issuance of a final order The Court of Appeals for the Third Circuit vacated the District Court's orders holding that the class certification failed to satisfy Rule 23's requirements in several critical respects We affirm the Court of Appeals judgment OPINION 2 AMCHEM PRODUCTS INC v WINDSOR I A The settlement certification we confront evolved in response to an litigation crisis See Georgine v Amchem Products Inc. 83 F. 3d 610 618 and n 2 CA3 1996 citing commentary A United States Judicial Conference Ad Hoc Committee on Asbestos Litiga- tion appointed by THE CHIEF JUSTICE in September 1990 described facets of the problem in a 1991 report This is a tale of danger known in the 1930s exposure inflicted upon millions of Americans in the 1940s and 1950s injuries that began to take their toll in the 1960s and a flood of lawsuits beginning in the 1970s On the basis of past and current filing data and because of a latency period that may last as long as 40 years for some asbestos related diseases a continuing stream of claims can be expected The final toll of asbestos related injuries is unknown Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015 The most objectionable aspects of asbestos litiga- tion can be briefly summarized dockets in both federal and state courts continue to grow long delays are routine trials are too long the same issues are litigated over and over transaction costs exceed the victims recovery by nearly two to one exhaustion of assets threatens and distorts the process and future claimants may lose altogether Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 Mar. 1991 Real reform the report concluded required federal legislation creating a national asbestos resolution scheme See id at 3 27-35 see also id at 42 dis- senting statement of Hogan J. agreeing that a national solution is the only answer and suggesting OPINION AMCHEM PRODUCTS INC v WINDSOR 3 passage by Congress of an administrative claims procedure similar to the Black Lung legislation As recommended by the Ad Hoc Committee the Judicial Conference of the United States urged Congress to act See Report of the Proceedings of the Judicial Conference of the United States 33 Mar. 12 1991 To this date no congressional response has emerged In the face of legislative inaction the federal lacking authority to replace state tort systems with a national toxic tort compensation endeavored to work with the procedural tools available to improve management of federal asbestos litigation Eight federal judges experienced in the superintendence of asbestos cases urged the Judicial Panel on Multidistrict Litigation MDL Panel to consolidate in a single district all asbestos complaints then pending in federal courts Accepting the recommendation the MDL Panel transferred all asbestos cases then filed but not yet on trial in federal courts to a single district the United States District Court for the Eastern District of Pennsylvania pursuant to the transfer order the collected cases were consolidated for pretrial proceedings before Judge Weiner See In re Asbestos Products Liability Litigation No. VI 771 F. Supp 415 422 42J4 PML 1991 The order aggregated pending cases only no authority resides in the MDL Panel to license for consolidated proceedings claims In a series of orders the MDL Panel had previously denied other asbestos transfer requests See In re Asbestos and Asbestos Insulation Material Products Liability Litigation 431 F. Supp 906 910 JPML 1977 In re Asbestos Products Liability Litigation No. II MDL JPML Mar. 13 1980 unpublished order In re Asbestos School Products Liability Litigation 606 F. Supp 713 714 JPML 1985 In re Ship Asbestos Products Liability Litigation MDL JPML Feb. 4 1986 unpublished order In re Leon Blair Asbestos Products Liability Litigation MDL JPML Feb. 6 1987 unpublished order OPINION 4 AMCHEM PRODUCTS INC v WINDSOR not yet filed B After the consolidation attorneys for plaintiffs and defendants formed separate steering committees and began settlement negotiations Ronald L. Motley and Gene Locks appointed along with Motley's law partner Joseph F. Rice to represent the plaintiff class in this chaired the Plaintiffs Steering Com- mittee Counsel for the Center for Claims Resolution CCR the consortium of 20 former asbestos manufactur- ers now before us as petitioners participated in the Defendants Steering Committee Although the MDL order collected transferred and consolidated only cases already commenced in federal courts settlement negotia- tions included efforts to find a means of resolving . . . future cases Record Doc 3 p 2 Memorandum in Support of Joint Motion for Conditional Class Certification see also Georgine v Amchem Products Inc. 157 R. D. 246 266 ED Pa 1994 primary purpose of the settlement talks in the consolidated MDL litigation was to craft a national settlement that would provide an alternative resolution mechanism for asbestos claims including claims that might be filed in the future In November 1991 the Defendants Steering Commit- tee made an offer designed to settle all pending and future asbestos cases by providing a fund for distribution The CCR Companies are Amchem Products Inc A. P. Green Industries Inc Armstrong World Industries Inc Asbestos Claims Management Corp Certainteed Corp C. E. Thurston & Sons Inc Dana Corp Ferodo America Inc Flexitallic Inc GAF Building Materials Inc I. U. North America Inc Maremont Corp National Services Industries Inc Nosroc Corp Pfizer Inc Quigley Co Shook & Fletcher Insulation Co T & N PLC Union Carbide Corp and United States Gypsum Co. All of the CCR petitioners stopped manufacturing asbestos products around 1975 96-270 OPINION AMCHEM PRODUCTS INC v WINDSOR 5 by plaintiffs counsel among asbestos individuals The Plaintiffs Steering Committee rejected this offer and negotiations fell apart CCR however continued to pursue a workable administrative system for the handling of future claims Id at 270 To that end CCR counsel approached the lawyers who had headed the Plaintiffs Steering Committee in the unsuccessful negotiations and a new round of negotiations began that round yielded the mass settlement agreement now in controversy At the time the former heads of the Plaintiffs Steering Committee represented thousands of plaintiffs with pending asbestosrelated claimants the parties to this suit call inventory plaintiffs CCR indicated in these discus- sions that it would resist settlement of inventory cases absent some kind of protection for the future Id at 294 see also id at 295 CCR communicated to the inventory plaintiffs attorneys that once the CCR defendants saw a rational way to deal with claims expected to be filed in the future those defendants would be prepared to address the settlement of pending cases Settlement talks thus 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 al- though those lawyers then had no attorney relationship with such claimants Once negotiations seemed likely to produce an agreement purporting to bind potential plaintiffs CCR agreed to settle through separate agreements the claims of plaintiffs who had already filed asbestos lawsuits In one such agreement CCR defendants promised to pay more than 200 million to gain release of the claims of numerous inventory plaintiffs After settling the inventory claims CCR together with the plaintiffs OPINION 6 AMCHEM PRODUCTS INC v WINDSOR lawyers CCR had approached launched this case exclusively involving persons outside the MDL Panel's province without already pending lawsuits. C The class action thus instituted was not intended to be litigated Rather within the space of a single day January 15 1993 the settling parties defendants and the representatives of the plaintiff class described presented to the District Court a complaint an answer a proposed settlement agreement and a joint motion for conditional class certification.4 The complaint identified nine lead plaintiffs designat- ing them and members of their families as representa- tives of a class comprising all persons who had not filed an asbestos lawsuit against a CCR defendant as of the date the class action commenced but who 1 had been occupationally or through the occupational exposure of a spouse or household member asbestos or products containing asbestos attributable to a CCR defendant or 2 whose spouse or family member had been so exposed.5 Untold numbers of individuals may It is basic to comprehension of this proceeding to notice that no transferred case is included in the settlement at issue and no case covered by the settlement existed as a civil action at the time of the MDL Panel transfer Also on the same day the CCR defendants filed a party action against their insurers seeking a declaratory judgment holding the insurers liable for the costs of the settlement The insurance litigation upon which implementation of the settlement is conditioned is still pending in the District Court See e.g. Georgine v Amchem Prods Inc. No. 93-0215 1994 WL 502475 ED Pa Sept. 2 1994 denying motion of insurers to compel discovery The complaint defines the class as follows a All persons or their legal representatives who have been exposed in the United States or its territories or while working aboard U. S. military merchant or passenger ships either occu- OPINION AMCHEM PRODUCTS INC v WINDSOR 7 fall within this description All named plaintiffs alleged that they or a member of their family had been exposed to containing products of CCR defendants More than half of the named plaintiffs alleged that they or their family members had already suffered various physical injuries as a result of the exposure The others alleged that they had not yet manifested any asbestosrelated condition The complaint delineated no sub- classes all named plaintiffs were designated as repre- sentatives of the class as a whole The complaint invoked the District Court's diversity jurisdiction and asserted various state claims for relief including 1 negligent failure to warn 2 strict liability 3 breach of express and implied warranty 4 negligent infliction of emotional distress 5 enhanced risk of disease 6 medical monitoring and 7 civil conspiracy Each plaintiff requested unspecified dam- ages in excess of 100,000 CCR defendants answer denied the principal allegations of the complaint and asserted 11 affirmative defenses A stipulation of settlement accompanied the pleadings pationally or through the occupational exposure of a spouse or household member to asbestos or to containing products for which one or more of the Defendants may bear legal liability and who as of January 15 1993 reside in the United States or its territories and who have not as of January 15 1993 filed a lawsuit for asbestos personal injury or damage or death in any state or federal court against the Defendant or against entities for whose actions or omissions the Defendant bear legal liability b All spouses parents children and other relatives or their legal representatives of the class members described in paragraph a above who have not as of January 15 1993 filed a lawsuit for the asbestos personal injury or damage or death of a class member described in paragraph a above in any state or federal court against the Defendant or against entities for whose actions or omissions the Defendant bear legal liability 1 App 13 14 OPINION 00 AMCHEM PRODUCTS INC v WINDSOR it proposed to settle and to preclude nearly all class members from litigating against CCR companies all claims not filed before January 15 1993 involving compensation for present and future asbestos personal injury or death An exhaustive document exceeding 100 pages the stipulation presents in detail an administrative mechanism and a schedule of pay- ments to compensate class members who meet defined asbestos and medical requirements The stipulation describes four categories of compensable disease mesothelioma lung cancer certain other cancers rectal laryngeal esophageal and stomach cancer and malignant conditions asbestosis and bilateral pleural thickening Persons with exceptional medical claims that do not fall within the four described diagnostic categories in some instances qualify for compensation but the settlement caps the number of exceptional claims CCR must cover For each qualifying disease category the stipulation specifies the range of damages CCR will pay to qualifying claimants Payments under the settlement are not adjustable for inflation Mesothelioma claimants most highly compensated category scheduled to receive between 20,000 and 200,000 The stipulation provides that CCR is to propose the level of compensation within the prescribed ranges it also establishes procedures to resolve disputes over medical diagnoses and levels of compensation Compensation above the fixed ranges may be obtained for extraordinary claims But the settlement places both numerical caps and dollar limits on such claims Only three percent of the qualified mesothelioma lung cancer and other cancer claims and only one percent of the total number of qualified malignant condition claims can be designated extraordinary Average expenditures are specified for claims found extraordinary mesothelioma victims with compensable OPINION AMCHEM PRODUCTS INC v WINDSOR 9 The settlement also imposes case flow maximums which cap the number of claims payable for each disease in a given year Class members are to receive no compensation for certain kinds of claims even if otherwise applicable state law recognizes such claims Claims that garner no compensation under the settlement include claims by family members of asbestos individuals for loss of consortium and claims by called exposure plaintiffs for increased risk of cancer fear of future asbestos injury and medical monitoring Pleural claims which might be asserted by persons with asbestos plaques on their lungs but no accompanying physical impairment are also excluded Although not entitled to present compensation exposureonly claimants and pleural claimants may qualify for benefits when and if they develop a compensable disease and meet the relevant exposure and medical criteria Defendants forgo defenses to liability including statute of limitations pleas Class members in the main are bound by the settle- ment in perpetuity while CCR defendants may choose to withdraw from the settlement after ten years A small number of class members a few per year reject the settlement and pursue their claims in court Those permitted to exercise this option however may not assert any punitive damages claim or any claim for increased risk of cancer Aspects of the administration of the settlement are to be monitored by the AFL and class counsel Class counsel are to receive attorneys fees in an amount to be approved by the District Court extraordinary claims for example receive on average 300,000 OPINION 10 AMCHEM PRODUCTS INC v WINDSOR D On January 29 1993 as requested by the settling parties the District Court conditionally certified under Federal Rule of Civil Procedure 23 an encompass- ing opt class The certified class included persons occupationally exposed to defendants asbestos products and members of their families who had not filed suit as of January 15. Judge Weiner appointed Locks Motley and Rice as class counsel noting that he Court may in the future appoint additional counsel if it is deemed necessary and advisable Record Doc 11 p 3 Class Certification Order At no stage of the proceedings however were additional counsel in fact appointed Nor was the class ever divided into subclasses In a sepa- rate order Judge Weiner assigned to Judge Reed also of the Eastern District of Pennsylvania the task of conducting fairness proceedings and of determining whether the proposed settlement is fair to the class See 157 F. R. D. at 258. Various class members raised objections to the settlement stipulation and Judge Weiner granted the objectors full rights to participate in the subsequent proceedings Ibid In preliminary rulings Judge Reed held that the District Court had subject jurisdiction see Carlough v Amchem Products Inc. 834 F. Supp 1437 These objectors now respondents before this Court include three groups of individuals with overlapping interests designated as the Windsor Group the New Jersey White Lung Group and the Cargile Group Margaret Balonis an individual objector is also a respondent before this Court Balonis states that her husband Casimir was exposed to asbestos in the late 1940s and was diagnosed with mesothelioma in May 1994 after expiration of the out period see infra at 11 13 The Balonises sued CCR members in Maryland state court but were charged with civil contempt for violating the federal District Court's anti injunc- tion Casimir Balonis died in October 1996. See Brief for Balonis Respondents 9-11 OPINION AMCHEM PRODUCTS INC v WINDSOR 11 1467 146E8 D Pa 1993 and he approved the settling parties elaborate plan for giving notice to the class see Carlough v Amchem Products Inc. 158 F. R. D. 314 336 ED Pa 1993 The approved notice informed recipients that they could exclude themselves from the class if they so chose within a month out period Objectors raised numerous challenges to the settlement They urged that the settlement unfairly disad- vantaged those without currently compensable conditions in that it failed to adjust for inflation or to account for changes over time in medical understanding They maintained that compensation levels were intolerably low in comparison to awards available in tort litigation or payments received by the inventory plaintiffs And they objected to the absence of any compensation for certain claims for example medical monitoring compen- sable under the tort law of several States Rejecting these and all other objections Judge Reed concluded that the settlement terms were fair and had been negotiated without collusion See 157 F. R. D. at 325 331-332 He also found that adequate notice had been given to class members see id at 332-334 and that final class certification under Rule 23 was appropri- ate see id at 315 As to the specific prerequisites to certification the District Court observed that the class satisfied Rule 23 numerosity requirement see ibid a matter no one debates The Rule 23 and b requirements of commonality and preponderance were also satis- Rule 23 requires that the class be so numerous that join- der of all members is impracticable Rule 23 requires that there be questions of law or fact common to the class Rule 23 requires that the common questions of law or fact predominate over any questions affecting only individual OPINION 12 AMCHEM PRODUCTS INC v WINDSOR fied the District Court held in that he members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort a system Whether the proposed settlement satisfies this interest and is otherwise fair reasonable and adequate compromise of the claims of the class is a predominant issue for purposes of Rule 23 Id at 316 The District Court held next that the claims of the class representatives were typical of the class as a whole a requirement of Rule 23 and that as Rule 23 demands the class settlement was superior to other methods of adjudication See ibid Strenuous objections had been asserted regarding the adequacy of representation a Rule 23 require- ment Objectors maintained that class counsel and class representatives had disqualifying conflicts of interests In particular objectors urged claimants whose injuries had become manifest and claimants without manifest injuries should not have common counsel and should not be aggregated in a single class Furthermore objectors argued lawyers representing inventory plaintiffs should not represent the newly- formed class members Rule 23 states that the claims . . . of the representative parties must be typical of the claims . . of the class Rule 23 requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy Rule 23 requires that the representative parties will fairly and adequately protect the interests of the class OPINION AMCHEM PRODUCTS INC v WINDSOR 13 Satisfied that class counsel had ably negotiated the settlement in the best interests of all concerned and that the named parties served as adequate representatives the District Court rejected these objections See id at 317-319 326 332Subclasses were unnecessary the District Court held bearing in mind the added cost and confusion they would entail and the ability of class members to exclude themselves from the class during the month out period See id at 318-319 Reasoning that the representative plaintiffs have a strong interest that recovery for all of the medical categories be maximized because they may have claims in any or several categories the District Court found no antagonism of interest between class members with various medical conditions or between persons with and without currently manifest asbestos impairment Id at 318. Declaring class certification appropriate and the settlement fair the District Court preliminarily enjoined all class members from commencing any asbestos suit against the CCR defendants in any state or federal court See Georgine v Amchem Products Inc. 878 F. Supp 716 726-727 ED Pa 1994 The objectors appealed The United States Court of Appeals for the Third Circuit vacated the certification holding that the requirements of Rule 23 had not been satisfied See Georgine v Amchem Products Inc. 83 F. 3d 610 1996 E The Court of Appeals in a long heavily detailed opinion by Judge Becker first noted several challenges by objectors to justiciability subject jurisdiction and adequacy of notice These challenges the court said raised serious concerns Id at 623. However the court observed the jurisdictional issues in this case would not exist but for the class action certification Ibid Turning to the certification issues and 96-270 OPINION 14 AMCHEM PRODUCTS INC v WINDSOR finding them dispositive the Third Circuit declined to decide other questions On action prerequisites the Court of Appeals referred to an earlier Third Circuit decision In re General Motors Corp. Pick Truck Fuel Tank Products Liability Litigation 55 F. 3d 768 CA3 cert denied 516 U. S. 1995 hereinafter GM Trucks which held __ that although a class action may be certified for settlement purposes only Rule 23 requirements must be satisfied as if the case were going to be litigated 55 F. 3d at 799 800 The same rule should apply the Third Circuit said to class certification under Rule 23 See 83 F. 3d at 625. But cf. In re Asbestos Litigation 90 F. 3d 963 975 97a6nd n 8 CA5 1996 cert pending Nos 96 137996 1394While stating that the requirements of Rule 23 and b must be met without taking into account the settlement 83 F. 3d at 626 the Court of Appeals in fact closely considered the terms of the settlement as it examined aspects of the case under Rule 23 criteria See id at 630-634 The Third Circuit recognized that Rule 23 commonality requirement is subsumed under or superseded by the more stringent Rule 23 requirement that questions common to the class predominate over other questions The court therefore trained its attention on the predominance inquiry See id at 627. The harmfulness of asbestos exposure was indeed a prime factor common to the class the Third Circuit observed See id at 626 630. But uncommon questions abounded In contrast to mass torts involving a single accident class members in this case were exposed to different containing products in different ways over different periods and for different amounts of time some suffered no physical injury others suffered disabling or deadly diseases See id at 626 628. These factual differences the Third Circuit explained OPINION AMCHEM PRODUCTS INC v WINDSOR 15 translate into significant legal differences Id at 627 State law governed and varied widely on such critical issues as viability of exposure claims and availability of causes of action for medical monitor- ing increased risk of cancer and fear of future injury Ibid he number of uncommon issues in this humongous class action the Third Circuit concluded ibid barred a determination under existing tort law that common questions predominated see id at 630 The Court of Appeals next found that serious intra- class conflicts preclude th class from meeting the adequacy of representation requirement of Rule 23 Ibid Adverting to but not resolving charges of attorney conflict of interests the Third Circuit addressed the question whether the named plaintiffs could adequately advance the interests of all class members The Court of Appeals acknowledged that the District Court was certainly correct to this extent he members of the class are united in seeking the maximum possible recovery for their asbestos claims Ibid quoting 157 F. R. D. at 317 But the settlement does more than simply provide a general recovery fund the Court of Appeals immediately added ather it makes important judgments on how recovery is to be allocated among different kinds of plaintiffs decisions that necessarily favor some claimants over others 83 F. 3d at 630 In the Third Circuit's view the most salient diver- gence of interests separated plaintiffs already afflicted 14Recoveries under the laws of different States spanned a wide range Objectors assert for example that 15 of current mesothelioma claims arise in California where the statewide average recovery is 419,674 more than 209 above the 200,000 maximum specified in the settlement for mesothelioma claims not typed extraordinary See Brief for Respondents George Windsor et al 5-6 n 5 citing 2 App 461 OPINION 16 AMCHEM PRODUCTS INC v WINDSOR with an asbestos disease from plaintiffs without manifest injury exposure plaintiffs The latter would rationally want protection against inflation for distant recoveries See ibid They would also seek sturdy back out rights and causation provisions that can keep pace with changing science and medicine rather than freezing in place the science of 1993. Id at 630 631Already injured parties in contrast would care little about such provisions and would rationally trade them for higher current payouts See id at 631 These and other adverse interests the Court of Appeals carefully explained strongly suggested that an undivided set of representatives could not adequately protect the discrete interests of both currently afflicted and expo- only claimants The Third Circuit next rejected the District Court's determination that the named plaintiffs were typical of the class noting that this Rule 23 inquiry overlaps the adequacy of representation question both look to the potential for conflicts in the class Id at 632 Evident conflict problems the court said led it to hold that no set of representatives can be typical of this class Ibid The Court of Appeals similarly rejected the District Court's assessment of the superiority of the class action The Third Circuit initially noted that a class action so large and complex could not be tried Ibid The court elaborated most particularly however on the unfairness of binding exposure plaintiffs who might be un- aware of the class action or lack sufficient information about their exposure to make a reasoned decision whether to stay in or opt out See id at 633. A series of statewide or more narrowly defined adjudica- tions either through consolidation under Rule 42 or as class actions under Rule 23 would seem preferable the Court of Appeals said Id at 634 The Third Circuit after intensive review ultimately OPINION AMCHEM PRODUCTS INC v WINDSOR 17 ordered decertification of the class and vacation of the District Court's suit injunction Id at 635. Judge Wellford concurred fully subscrib to the decision of Judge Becker that the plaintiffs in this case ha not met the requirements of Rule 23. Ibid He added that in his view named exposure plaintiffs had no standing to pursue the suit in federal court for their depositions showed that hey claimed no damages and no present injury Id at 638 We granted certiorari 519 U. S. __ 1996 and now affirm II Objectors assert in this Court as they did in the District Court and Court of Appeals an array of jurisdictional barriers Most fundamentally they maintain that the settlement proceeding instituted by class counsel and CCR is not a justiciable case or controversy within the confines of Article III of the Federal Constitu- tion In the main they say the proceeding is a nonadversarial endeavor to impose on countless individuals without currently ripe claims an administrative compensation regime binding on those individuals if and when they manifest injuries Furthermore objectors urge that exposure claimants lack standing to sue Either they have not yet sustained any cognizable injury or to the extent the complaint states claims and demands relief for emotional distress enhanced risk of disease and medical monitor- ing the settlement provides no redress Objectors also argue that exposure claimants did not meet the current controversy requirement in excess of 50,000 specified for federal jurisdiction based upon diversity of citizenship See 28 U. C. 1332 As earlier recounted see supra at 13 the Third Circuit declined to reach these issues because they OPINION 18 AMCHEM PRODUCTS INC v WINDSOR would not exist but for the class action certification 83 F. 3d at 623. We agree that he class certification issues are dispositive ibid because their resolution here is logically antecedent to the existence of any Article III issues it is appropriate to reach them first cf. Arizonans for Official English v Arizona 520 U. S. 1997 slip op at 21 declining to resolve __., __ definitively question whether petitioners had standing because mootness issue was dispositive of the case We therefore follow the path taken by the Court of Appeals mindful that Rule 23's requirements must be interpreted in keeping with Article III constraints and with the Rules Enabling Act which instructs that rules of procedure shall not abridge enlarge or modify any substantive right 28 U. S. C. 2072 See also Fed Rule Civ Proc 82 rules shall not be construed to extend ... the subject matter jurisdiction of the United States district courts III To place this controversy in context we briefly describe the characteristics of class actions for which the Federal Rules provide Rule 23 governing federal The opinion dissenting in part does not find the class certification issues dispositive least not yet and would return the case to the Third Circuit for a second look See post at 2 13. If certification issues were genuinely in doubt however the jurisdictional issues would loom larger Concerning objectors assertions that exposure claimants do not satisfy the 50,000 controversy and may have no currently ripe claim see North Commuter R. Co. v Buckley ante p - Federal Employers Liability Act 35 Stat 65 as amended 45 U. C. 51 et seq interpreted in light of common principles does not permit exposure railworker to recover for negligent infliction of emotional distress or lump damages for costs of medical monitoring OPINION AMCHEM PRODUCTS INC v WINDSOR 19 class actions stems from equity practice and gained its current shape in an innovative 1966 revision See generally Kaplan Continuing Work of the Civil Commit- tee 1966 Amendments of the Federal Rules of Civil Procedure I 81 Harv L. Rev. 356 375-400 1967 hereinafter Kaplan Continuing Work Rule 23 states four threshold requirements applicable to all class actions 1 numerosity a class so large that joinder of all members is impracticable 2 commonality questions of law or fact common to the class 3 typicality named parties claims or defenses are typical ... of the class and 4 adequacy of representation representatives will fairly and adequately protect the interests of the class In addition to satisfying Rule 23 prerequisites parties seeking class certification must show that the action is maintainable under Rule 23 2 or 3 Rule 23 covers cases in which separate actions by or against individual class members would risk estab- lishing incompatible standards of conduct for the party opposing the class Fed Rule Civ Proc 23 or would as a practical matter be dispositive of the interests of nonparty class members or substantially impair or impede their ability to protect their interests Fed Rule Civ Proc 23 Rule 23 takes in cases where the party is obliged by law to treat the members of the class alike a utility acting toward customers a government imposing a tax or where the party must treat all alike as a matter of practical necessity a riparian owner using water as against downriver owners Kaplan Continuing Work 388 footnotes omitted Rule 23 includes for example limited fund cases instances in which numerous persons make claims against a fund insuffi- cient to satisfy all claims See Advisory Committee's Notes on Fed Rule Civ Proc 23 28 U. S. C. App pp 696-697 hereinafter Adv Comm Notes 96-270 OPINION 20 AMCHEM PRODUCTS INC v WINDSOR Rule 23 permits class actions for declaratory or injunctive relief where the party opposing the class has acted or refused to act on grounds generally applicable to the class Civil rights cases against parties charged with unlawful based discrimination are prime examples Adv Comm Notes 28 U. S. C. App p 697 see Kaplan Continuing Work 389 subdivision b build on experience mainly but not exclusively in the civil rights field In the 1966 action amendments Rule 23 the category at issue here was the most adventure- some innovation See Kaplan A Prefatory Note 10 B. C. Ind & Com L. Rev. 497 497 1969 hereinafter Kaplan Prefatory Note Rule 23 added to the litigation arsenal class actions for damages designed to secure judgments binding all class members save those who affirmatively elected to be excluded See 7A C. Wright A. Miller & M. Kane Federal Practice and Procedure 1777p 517 2d ed 1986 hereinafter Wright Miller & Kane see generally Kaplan Continu- ing Work 379 400Rule 23 opt out class actions superseded the former spurious class action so characterized because it generally functioned as a permissive joinder opt in device See 7A Wright Miller & Kane 1753 at 28-31 42-44 see also Adv Comm Notes 28 U. S. C. App p 695 Framed for situations in which action treatment is not as clearly called for as it is in Rule 23 and b situations Rule 23 permits certification where class suit may nevertheless be convenient and desirable Adv Comm Notes 28 U. S. C. App p 697. To qualify for certification under Rule 23 a class must meet two requirements beyond the Rule 23 prerequi- sites Common questions must predominate over any questions affecting only individual members and class resolution must be superior to other available methods for the fair and efficient adjudication of the controversy 96-270 OPINION AMCHEM PRODUCTS INC v WINDSOR 21 In adding predominance and superiority to the qualification list the Advisory Committee sought to cover cases in which a class action would achieve economies of time effort and expense and promote ... uniformity of decision as to persons similarly situated without sacrificing procedural fairness or bringing about other undesirable results Ibid Sensitive to the competing tugs of individual autonomy for those who might prefer to go it alone or in a smaller unit on the one hand and systemic efficiency on the other the Reporter for the 1966 amendments cautioned The new provision invites a close look at the case before it is accepted as a class action " Kaplan Continuing Work 390 Rule 23 includes a nonexhaustive list of factors pertinent to a court's close look at the predominance and superiority criteria A the interest of members of the class in individu- ally controlling the prosecution or defense of sepa- rate actions B the extent and nature of any litigation concerning the controversy already commenced by or against members of the class C the desirability or undesirability of concentrating the litigation of the claims in the particular forum D the difficulties likely to be encountered in the management of a class action In setting out these factors the Advisory Committee for the 1966 reform anticipated that in each case courts would consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit Adv Comm Notes 28 U. C. App p 698. They elaborated The interests of individuals in conducting separate lawsuits may be so strong as to call for denial of a class action On the other hand these interests may be theoretic rather than practical the class OPINION 22 AMCHEM PRODUCTS INC v WINDSOR may have a high degree of cohesion and prosecution of the action through representatives would be quite unobjectionable or the amounts at stake for individ- uals may be so small that separate suits would be impracticable Ibid See also Kaplan Continuing Work 391 Th interest in individual control can be high where the stake of each member bulks large and his will and ability to take care of himself are strong the interest may be no more than theoretic where the individual stake is so small as to make a separate action impracticable footnote omitted As the Third Circuit observed in the instant case Each plaintiff in an action involving claims for personal injury and death has a significant interest in individually controlling the prosecution of his case each ha a substantial stake in making individual decisions on whether and when to settle 83 F. 3d at 633 While the text of Rule 23 does not exclude from certification cases in which individual damages run high the Advisory Committee had dominantly in mind vindication of the rights of groups of people who individually would be without effective strength to bring their opponents into court at all Kaplan Prefatory Note 497. As concisely recalled in a recent Seventh Circuit opinion The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's usually an attorney's labor Mace v Van Ru Credit Corp. 109 F. 3d 338 344 1997 To alert class members to their right to opt out of a OPINION AMCHEM PRODUCTS INC v WINDSOR 23 b class Rule 23 instructs the court to direct to the members of the class the best notice practicable under the circumstances including individual notice to all members who can be identified through reasonable effort Fed Rule Civ Proc 23 see Eisen v Carlisle & Jacquelin 417 U. 156 173 1771974 individual notice to class members identifiable through reasonable effort is mandatory in b actions requirement may not be relaxed based on high cost No class action may be dismissed or compromised without court approval preceded by notice to class members Fed Rule Civ Proc 23 The Advisory Committee's sole comment on this terse final provision of Rule 23 restates the rule's instruction without elaboration Subdivision e requires approval of the court after notice for the dismissal or compromise of any class action Adv Comm Notes 28 U. C. App p 699 In the decades since the 1966 revision of Rule 23 class action practice has become ever more adventuresome as a means of coping with claims too numerous to secure their just speedy and inexpensive determination one by one See Fed Rule Civ Proc 1. The development reflects concerns about the efficient use of court resources and the conservation of funds to compen- sate claimants who do not line up early in a litigation queue See generally J. Weinstein Individual Justice in Mass Tort Litigation The Effect of Class Actions Consolidations and Other Multiparty Devices 1995 Schwarzer Settlement of Mass Tort Class Actions Order out of Chaos 80 Cornell L. Rev. 837 1995 Among current applications of Rule 23 the settlement only class has become a stock device See e.g. T. Willging L. Hooper & R. Niemic Empirical Study of Class Actions in Four Federal District Courts Final Report to the Advisory Committee on Civil Rules 61-62 1996 noting large number of such cases in OPINION 24 AMCHEM PRODUCTS INC v WINDSOR districts studied Although all Federal Circuits recognize the utility of Rule 23 settlement classes courts have divided on the extent to which a proffered settle- ment affects court surveillance under Rule 23's certifica- tion criteria In GM Trucks 55 F. 3d at 799-800 and in the instant case 83 F. 3d at 624-626 the Third Circuit held that a class cannot be certified for settlement when certification for trial would be unwarranted Other courts have held that settlement obviates or reduces the need to measure a proposed class against the enumerated Rule 23 requirements See e.g. In re Asbestos Litigation 90 F. 3d at 975 CA5 in settlement class context common issues arise from the settlement it- self citing H. Newberg & A. Conte 2 Newberg on Class Actions 11.28 at 11-58 3d ed 1992 White v National Football League 41 F. 3d 402 408 CA8 1994 adequacy of class representation .. is ultimately determined by the settlement itself cert denied 515 U. 1137 1995 In re A. H. Robins Co. 880 F. 2d 709 740 CA4 f not a ground for certification per se certainly settlement should be a factor and an important factor to be considered when determining certification cert denied sub nom Anderson v Aetna Casualty & Surety Co. 493 U. S. 959 1989 Malchman v Davis 761 F. 2d 893 900 CA2 1985 certification appropriate in part because the interests of the members of the broadened class in the settlement agreement were commonly held cert denied 475 U. S. 1143 1986 A proposed amendment to Rule 23 would expressly authorize settlement class certification in conjunction with a motion by the settling parties for Rule 23 certification even though the requirements of subdivision b might not be met for purposes of trial Proposed Amendment to Fed Rule Civ Proc 23 117 S. Ct No. 1 CXIX CLIV to CLV Aug. 1996 Request for Comment In response to the publication of this OPINION AMCHEM PRODUCTS INC v WINDSOR 25 proposal voluminous public comments of them opposed to or skeptical of the amendment received by the Judicial Conference Standing Committee on Rules of Practice and Procedure See e.g. Letter from Steering Committee to Oppose Proposed Rule 23 signed by 129 law professors May 28 1996 Letter from Paul D. Carrington May 21 1996 The Committee has not yet acted on the matter We consider the certification at issue under the rule as it is currently framed IV We granted review to decide the role settlement may play under existing Rule 23 in determining the propriety of class certification The Third Circuit's opinion stated that each of the requirements of Rule 23 and b must be satisfied without taking into account the settlement 83 F. 3d at 626 quoting GM Trucks 55 F. 3d at 799 That statement petitioners urge is incorrect We agree with petitioners to this limited extent settle- ment is relevant to a class certification The Third Circuit's opinion bears modification in that respect But as we earlier observed see supra at 14 the Court of Appeals in fact did not ignore the settlement instead that court homed in on settlement terms in explaining why it found the absentees interests inadequately represented See 83 F. 3d at 630-631 The Third Circuit's close inspection of the settlement in that regard was altogether proper Confronted with a request for settlement class certification a district court need not inquire whether the case if tried would present intractable management problems see Fed Rule Civ Proc 23 for the proposal is that there be no trial But other specifications of the those designed to protect absentees by blocking unwarranted or overbroad class definitionsdemand undiluted even heightened attention in the OPINION 26 AMCHEM PRODUCTS INC v WINDSOR settlement context Such attention is of vital importance for a court asked to certify a settlement class will lack the opportunity present when a case is litigated to adjust the class informed by the proceedings as they unfold See Fed Rule Civ Proc 23 .16 And of overriding importance courts must be mindful that the rule as now composed sets the requirements they are bound to enforce Federal Rules take effect after an extensive deliberative process involving many reviewers a Rules Advisory Committee public commenters the Judicial Conference this Court the Congress See 28 U. S. C. 20723074. The text of a rule thus proposed and reviewed limits judicial inven- tiveness Courts are not free to amend a rule outside the process Congress ordered a process properly tuned to the instruction that rules of procedure shall not abridge . . any substantive right 2072 Rule 23 on settlement of class actions reads in its entirety A class action shall not be dismissed or compromised without the approval of the court and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs This prescription was designed to function as an additional requirement not a superseding direction for the class action to which Rule 23 refers is one qualified for certification under Rule 23 and b Cf. Eisen 417 U. at 176-177 adequate representation does not eliminate additional requirement 16 Portions of the opinion dissenting in part appear to assume that settlement counts only one way favor of certification See post at 1-2 13. But see post at 7. To the extent that is the dissent's meaning we disagree Settlement though a relevant factor does not inevitably signal that class action certification should be granted more readily than it would be were the case to be litigated For reasons the Third Circuit aired see 83 F. 3d 610 626-635 1996 proposed settlement classes sometimes warrant more not less caution on the question of certification OPINION AMCHEM PRODUCTS INC v WINDSOR 27 to provide notice Subdivisions a and b focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives That dominant concern persists when settlement rather than trial is proposed The safeguards provided by the Rule 23 and b qualifying criteria we emphasize are not impractical impediments shorn of utility the settle- ment class context First the standards set for the protection of absent class members serve to inhibit appraisals of the chancellor's foot class certifications dependent upon the court's gestalt judgment or overarching impression of the settlement's fairness Second if a fairness inquiry under Rule 23 con- trolled certification eclipsing Rule 23 and b and permitting class designation despite the impossibility of litigation both class counsel and court would be disarmed Class counsel confined to settlement negotia- tions could not use the threat of litigation to press for a better offer see Coffee Class Wars The Dilemma of the Mass Tort Class Action 95 Colum L. Rev. 1343 1379 13801995 and the court would face a bargain proffered for its approval without benefit of adversarial investigation see e.g. Kamilewicz v Bank of Boston Corp. 100 F. 3d 1348 1352 CA7 1996 Easterbrook J. dissenting from denial of rehearing en banc parties may even put one over on the court in a staged performance cert denied 520 U. S. ___ 1997 Federal courts in any case lack authority to substi- tute for Rule 23's certification criteria a standard never adopted if a settlement is fair then certification is proper Applying to this case criteria the rulemakers set we conclude that the Third Circuit's appraisal is essentially correct Although that court should have acknowledged that settlement is a factor in the calculus a remand is not warranted on that account The Court OPINION 28 AMCHEM PRODUCTS INC u WINDSOR of Appeals opinion amply demonstrates with or without a settlement on the table sprawling class the District Court certified does not satisfy Rule 23's requirements A We address first the requirement of Rule 23 that common questions of law or fact . . predominate over any questions affecting only individual members The District Court concluded that predominance was satisfied based on two factors class members shared experience of asbestos exposure and their common interest in receiving prompt and fair compensation for their claims while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system 157 R. D. at 316 The settling parties also contend that the settlement's fairness is a common question predominating over disparate legal issues that might be pivotal in litigation but become irrelevant under the settlement The predominance requirement stated in Rule 23 we hold is not met by the factors on which the District Court relied The benefits asbestos persons might gain from the establishment of a grand compensation scheme is a matter fit for legislative consideration see supra at 2-3 but it is not pertinent to the predominance inquiry That inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy questions that preexist any settlement We do not inspect and set aside for insufficient evidence district court findings of fact Cf. post at 5 9-10 Rather we focus on the require- ments of Rule 23 and endeavor to explain why those requirements cannot be met for a class so enormously diverse and problematic as the one the District Court certified In this respect the predominance requirement of Rule 23 is similar to the requirement of Rule 23 that claims or de- OPINION AMCHEM PRODUCTS INC v WINDSOR 29 The Rule 23 predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation See 7A Wright Miller & Kane 518 519.19 The inquiry appropriate under Rule 23 on the other hand protects unnamed class members from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise See 7B Wright Miller & Kane 1797 at 340 341But it is not the mission of Rule 23 to assure the class cohesion that legitimizes representative action in the first place If a common interest in a fair compromise could satisfy the predominance requirement of Rule 23 that vital prescription would be stripped of any meaning in the settlement context The District Court also relied upon this commonality The members of the class have all been exposed to asbestos products supplied by the defendants " 157 F. R. D. at 316. Even if Rule 23 commonality requirement may be satisfied by that shared experience the predominance criterion is far more demanding See 83 F. 3d at 626-627 Given the greater number of questions peculiar to the several categories of class fenses of the named representatives must be typical of the claims or defenses of the class The words claims or defenses in this context as in the context of Rule 24 governing permissive intervention refer to the kinds of claims or defenses that can be raised in courts of law as part of an actual or impending law suit Diamond v Charles 476 U. 54 76 771986 O'CONNOR J. concurring in part and concurring in judgment This case we note involves no limited fund capable of supporting class treatment under Rule 23 which does not have a predominance requirement See Georgine v Amchem Products Inc. 157 F. R. D. 246 318 ED Pa 1994 see also id at 291 and n 40 The settling parties sought to proceed exclusively under Rule 23 OPINION 30 AMCHEM PRODUCTS INC v WINDSOR members and to individuals within each category and the significance of those uncommon questions any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23 predominance standard The Third Circuit highlighted the disparate questions undermining class cohesion in this case Class members were exposed to different asbestos- containing products for different amounts of time in different ways and over different periods Some class members suffer no physical injury or have only asymptomatic pleural changes while others suffer from lung cancer disabling asbestosis or from mesothelioma .... Each has a different history of cigarette smoking a factor that complicates the causation inquiry The exposure plaintiffs especially share little in common either with each other or with the presently injured class members It is unclear whether they will contract asbestos disease and if so what disease each will suffer They will also incur different medical expenses because their monitoring and treatment will depend on singular circumstances and individual medical histories Id at 626 Differences in state law the Court of Appeals observed compound these disparities See id at 627 citing Phillips Petroleum Co. v Shutts 472 U. 797 823 1985 No settlement class called to our attention is as sprawling as this one Cf. In re Asbestos Litigation 90 F. 3d at 976 n 8 We would likely agree with the Third Circuit that a class action requesting individual damages for members of a global class of asbestos claimants would not satisfy Rule 23 requirements due OPINION AMCHEM PRODUCTS INC v WINDSOR 31 to the huge number of individuals and their varying medical expenses smoking histories and family situations Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws See Adv Comm Notes 28 U. C. App p 697 see also supra at 21-22 Even mass tort cases arising from a common cause or disaster may depending upon the circumstances satisfy the predominance requirement The Advisory Committee for the 1966 revision of Rule 23 it is true noted that mass accident cases are likely to present significant ques- tions not only of damages but of liability and defenses of liability ... affecting the individuals in different ways Ibid And the Committee advised that such cases are ordinarily not appropriate for class treatment Ibid But the text of the rule does not categorically exclude mass tort cases from class certification and district courts since the late 1970s have been certifying such cases in increasing number See Resnik From Cases to Litigation 54 Law & Contemp Prob 5 17-19 Summer 1991 describing trend The Committee's warning however continues to call for caution when individual stakes are high and disparities among class members great As the Third Circuit's opinion makes plain the certification in this case does not follow the counsel of caution That certification cannot be upheld for it rests on a conception of Rule 23 predominance requirement irreconcilable with the rule's design B Nor can the class approved by the District Court satisfy Rule 23 requirement that the named parties will fairly and adequately protect the interests of the class The adequacy inquiry under Rule 23 serves to uncover conflicts of interest between named parties and the class they seek to represent See OPINION 32 AMCHEM PRODUCTS INC u WINDSOR General Telephone Co. of Southwest v Falcon 457 U. S. 147 157-158 n 13 1982 A class representative must be part of the class and possess the same interest and suffer the same injury as the class members East Tex Motor Freight System Inc. v Rodriguez 431 U. S. 395 403 1977 quoting Schlesinger v Reservists Comm to Stop the War 418 U. S. 208 216 1974 As the Third Circuit pointed out named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses In significant respects the interests of those within the single class are not aligned Most saliently for the currently injured the critical goal is generous immediate payments That goal tugs against the interest of exposure plaintiffs in ensuring an ample protected fund for the future Cf. General Telephone Co. of Northwest v EEOC 446 U. S. 318 331 1980 In employment discrimination litigation conflicts might arise for example between employees and applicants who were denied employment and who will if granted relief compete with employees for fringe benefits or seniority Under Rule 23 the same plaintiff could not represent these classes The disparity between the currently injured and expo- The representation requirement tend to merge with the commonality and typicality criteria of Rule 23 which serve as guideposts for determining whether . . . maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence General Telephone Co. of Southwest v Falcon 457 U. S. 147 157 n 13 1982 The adequacy heading also factors in compe- tency and conflicts of class counsel See id at 157-158 n 13 adequacy Like the Third Circuit we decline to address issues discretely in light of our conclusions that common questions plaintiffs of law or fact do not predominate and that the named cannot adequately represent the interests of this enormous class OPINION AMCHEM PRODUCTS INC v WINDSOR 33 sure categories of plaintiffs and the diversity within each category are not made insignificant by the District Court's finding that petitioners assets suffice to D. pay claims under the settlement See 157 F. R. at 291. Although this is not a limited fund case certified under Rule 23 the terms of the settlement reflect essential allocation decisions designed to confine compensation and to limit defendants liability For example as earlier described see supra at 8-9 the settlement includes no adjustment for inflation only a few claimants per year can opt out at the back end and consortium claims are extinguished with no compensation The settling parties in sum achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected Although the named parties alleged a range of complaints each served generally as representative for the whole not for a separate constituency In another asbestos class action the Second Circuit spoke precisely to this point here differences among members of a class are such that subclasses must be established we know of no authority that permits a court to approve a settlement without creating subclasses on the basis of consents by members of a unitary class some of whom happen to be members of the distinct subgroups The class representatives may well have thought that the Settlement serves the aggregate interests of the entire class But the adversity among subgroups requires that the members of each subgroup cannot be bound to a settlement except by consents given by those who understand that their role is to represent solely the members of their respective subgroups In re Joint Eastern and Southern Dist Asbestos Litigation 982 F. 2d 721 742 743CA2 1992 modified on reh'g sub nom In OPINION 34 AMCHEM PRODUCTS INC v WINDSOR re Findley 993 F. 2d 7 CA2 1993 The Third Circuit found no assurance either in the terms of the settlement or in the structure of the negotiations the named plaintiffs operated under a proper understanding of their representational respon- sibilities See 83 F. 3d at 630 631That assessment we conclude is on the mark C Impediments to the provision of adequate notice the Third Circuit emphasized rendered highly problematic any endeavor to tie to a settlement class persons with no perceptible asbestos disease at the time of the settlement Id at 633 cf. In re Asbestos Litigation 90 F. 3d at 999-1000 Smith J. dissenting Many persons in the exposure category the Court of Appeals stressed may not even know of their exposure or realize the extent of the harm they may incur Even if they fully appreciate the significance of class notice those without current afflictions may not have the information or foresight needed to decide intelligently whether to stay in or opt out Family members of exposed individuals may themselves fall prey to disease or may ultimately have ripe claims for loss of consortium Yet large numbers of people in this category spouses and children of asbestos victims not be alerted to their class membership And current spouses and children of the occupationally exposed may know nothing of that exposure Because we have concluded that the class in this case cannot satisfy the requirements of common issue predominance and adequacy of representation we need not rule definitively on the notice given here In accord with the Third Circuit however see 83 F. 3d at 633-634 we recognize the gravity of the question whether class action notice sufficient under the Constitu- 96-270 OPINION AMCHEM PRODUCTS INC v WINDSOR 35 tion and Rule 23 could ever be given to legions so unselfconscious and amorphous V The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure fair and efficient means of compensat- ing victims of asbestos exposure Congress however which has not adopted such a solution And Rule 23 must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view cannot carry the large load CCR class counsel and the District Court heaped upon it As this case exemplifies the rulemakers prescriptions for class actions may be endangered by those who embrace Rule 23 too enthusiastically just as they are by those who approach the rule with distaste C. Wright Law of Federal Courts 508 5th ed 1994 cf. 83 F. 3d at 634 aggregation techniques suggesting resort to less bold including more narrowly defined class certifications * * * For the reasons stated the judgment of the Court of Appeals for the Third Circuit is Affirmed JUSTICE O'CONNOR took no part in the consideration or decision of this case The opinion dissenting in part is a forceful statement of that argument SUPREME COURT OF THE UNITED STATES No. 96-270 AMCHEM PRODUCTS INC ET AL PETITIONERS v GEORGE WINDSOR ET AL ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT June 25 1997 Justice BREYER with whom Justice STEVENS joins concurring in part and dissenting in part Although I agree with the Court's basic holding that settlement is relevant to a class certification ante at 25 I find several problems in its approach that lead me to a different conclusion First I believe that the need for settlement in this mass tort case with hundreds of thousands of lawsuits is greater than the Court's opinion suggests Second I would give more weight than would the majority to settlement issues for purposes of determining whether common issues predominate Third I am uncertain about the Court's determination of adequacy of representation and do not believe it appropriate for this Court to second the District Court on the matter without first having the Court of Appeals consider it Fourth I am uncertain about the tenor of an opinion that seems to suggest the settlement is unfair And fifth in the absence of further review by the Court of Appeals I cannot accept the majority's suggestions that notice is inadequate These difficulties flow from the majority's review of what are highly based complex and difficult matters matters that are inappropriate for initial review before this Court The law gives broad leeway to district courts in making class certification decisions DISSENT 2 AMCHEM PRODUCTS INC v WINDSOR and their judgments are to be reviewed by the Court of Appeals only for abuse of discretion See Califano v Yamasaki 442 U. 682 703 1979 Indeed the District Court's certification decision rests upon more than 300 findings of fact reached after five weeks of comprehensive hearings Accordingly I do not believe that we should in effect set aside the findings of the District Court That court is far more familiar with the we issues and litigants than is a court of appeals or are and therefore has broad power and discretion with . . . respect to matters involving the certification of class actions Reiter v Sonotone Corp. 442 U. S. 330 345 1979 cf. Cooter & Gell v Hartmarx Corp. 496 U. S. 384 402 1990 district court better situated to make dependent legal determinations in Rule 11 context I do not believe that we can rely upon the Court of Appeals review of the District Court record for that review and its ultimate conclusions are infected by a legal error E.g. Georgine v Amchem Products Inc. 83 F. 3d 610 626 CA3 1996 holding that considered as a litigation class the class cannot meet Rule 23's requirements emphasis added There is no evidence that the Court of Appeals at any point considered the settlement as something that would help the class meet Rule 23. I find moreover the related issues presented here sufficiently close to warrant further detailed appellate court review under the correct legal standard Cf. Reno v Bossier Parish School Bd 520 U. __ 1997 slip op at 14 And I shall briefly explain why this is so I First I believe the majority understates the impor- tance of settlement in this case Between 13 and 21 million workers have been exposed to asbestos in the workplace the past 40 or 50 years the most severe instances of such exposure probably occurred DISSENT AMCHEM PRODUCTS INC v WINDSOR 3 three or four decades ago See Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation pp 6-7 Mar. 1991 Judicial Conference Report App 781-782 801 B. Castleman Asbestos Medical and Legal Aspects 787-788 4th ed 1996 This exposure has led to several hundred thousand lawsuits about 15 of which involved claims for cancer and about 30 for asbestosis See In re Joint Eastern and Southern Dist Asbestos Litigation 129 B. R. 710 936 937E and SD N. Y. 1991 Joint Litigation About half of the suits have involved claims for pleural thickening and plaques harmfulness of which is apparently controversial One expert below testified that they don't transform into cancer and are not predictor of future disease App 781. Some of those who suffer from the most serious injuries however have received little or no compensation In re School Asbestos Litigation 789 F. 2d 996 1000 CA3 1986 see also Edley & Weiler Asbestos A Billion Crisis 30 Harv J. Legis 383 384 393 1993 U to half of asbestos claims are now being filed by people who have little or no physical impairment Many of these claims produce substantial payments and substantial costs even though the individual litigants will never become impaired These lawsuits have taken up more than % of all federal civil filings in one recent year and are subject to a delay that is twice that of other civil suits Judicial Conference Report 7 10 11 Delays high costs and a random pattern of noncom- pensation led the Judicial Conference Ad Hoc Committee on Asbestos Litigation to transfer all federal asbestos personal cases to the Eastern District of Pennsylvania in an effort to bring about a fair and comprehen- sive settlement It is worth considering a few of the Committee's comments See Judicial Conference Report 2 Decisions concerning thousands of deaths millions of injuries and billions of dollars are entangled in a DISSENT 4 AMCHEM PRODUCTS INC v WINDSOR litigation system whose strengths have increasingly been overshadowed by its weaknesses The ensuing five years have seen the picture worsen increased filings larger backlogs higher costs more bankruptcies and poorer prospects that judgments ever obtained be col- lected quoting Rand Corporation Institute for Civil Justice id at 13 The transaction costs associated with asbestos litigation are an unconscionable burden on the victims of asbestos disease and citing Rand finding that of each asbestos litigation dollar 61 cents is consumed in transaction costs . Only 39 cents were paid to the asbestos victims id at 12 Delays also can increase transaction costs especially the attorneys fees paid by defendants at hourly rates These costs reduce either the insurance fund or the company's assets thereby reducing the funds available to pay pending and future claimants By the end of the trial phase in one case at least seven defendants had declared bankruptcy as a result of asbestos claims generally see also J. Weinstein Individual Justice in Mass Tort Litigation 155 1995 Edley & Weiler supra at 389-395 Although the transfer of the federal asbestos cases did not produce a general settlement it was intertwined with and led to a lengthy long negotiation between the chairs of the Plaintiff's District Litigation Steering Committee elected by the Plaintiff's Committee Members and approved by the District Court and the 20 asbestos defendants who are before us here Georgine v Amchem Products Inc. 157 R. D. 246 266 267 ED Pa 1994 App 660 662These protracted and vigorous negotiations led to the present partial settlement which will pay an estimated 1.3 billion and compensate perhaps 100,000 class members in the first 10 years 157 R. D. at 268 287. The negotiations included a substantial exchange of information between class counsel and the 20 defendant companies including CONCUR AMCHEM PRODUCTS INC v WINDSOR 5 confidential data showing the defendants historical settlement averages numbers of claims filed and settled and insurance resources Id at 267. Virtually no provision of the settlement was not the subject of significant negotiation and the settlement terms changed substantially during the negotiations Ibid In the end the negotiations produced a settlement that the District Court determined based on its detailed review of the process was the result of length adversarial negotiations by extraordinarily competent and experienced attorneys Id at 335 The District Court when approving the settlement concluded that it improved the plaintiffs chances of compensation and reduced total legal fees and other transaction costs by a significant amount Under the previous system according to the court he sickest of valuable victims often go uncompensated for years while funds go to others who remain unimpaired by their mild asbestos disease Ibid The court believed the set- tlement would create a compensation system that would make more money available for plaintiffs who later develop serious illnesses I mention this matter because it suggests that the settlement before us is unusual in terms of its impor- tance both to many potential plaintiffs and to defendants and with respect to the time effort and expen- diture that it reflects All of which leads me to be reluctant to set aside the District Court's findings without more assurance than I have that they are wrong I cannot obtain that assurance through comprehensive review of the record because that is properly the job of the Court of Appeals and that court understandably but as we now hold mistakenly believed that settlement was not a relevant and as I would say important consideration Second the majority in reviewing the District Court's determination that common issues of fact and law DISSENT 6 AMCHEM PRODUCTS INC v WINDSOR predominate says that the predominance inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy questions that preexist any settlement Ante at 28 footnote omitted I find it difficult to interpret this sentence in a way that could lead me to the majority's conclusion If the majority means that these settlement questions are what matters then how does it reconcile its statement with its basic conclusion that settlement is relevant to class certification or with the numerous lower court authority that says that settlement is not only relevant but important See e g In re A. H. Robins Co. 880 F. 2d 709 740 CA4 cert denied sub nom Anderson v Aetna Casualty & Surety Co. 493 U. S. 959 1989 In re Beef Industry Antitrust Litigation 607 F. 2d 167 177 178CA5 1979 cert denied sub nom Iowa Beef Processors Inc. v Meat Price Investigators Assn 452 U. S. 905 1981 2 H. Newberg & A. Conte Newberg on Class Actions 11.27pp 11-54 to 11-55 3d ed 1992 Nor do I understand how one could decide whether common questions predominate in the abstract without looking at what is likely to be at issue in the proceedings that will ensue namely the settlement Every group of human beings after all has some features in common and some that differ How can a court make a contextual judgment of the sort that Rule 23 requires without looking to what proceedings will follow Such guideposts help it decide whether in light of common concerns and differences certification will achieve Rule 23's basic economies of time effort and expense Advisory Committee's Notes on Fed Rule Civ Proc 23 28 U. S. C. App p 697 As this Court has previously observed sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question General Telephone Co. of Southwest v Falcon 457 U. S. 147 160 1982 see also C. Wright A. DISSENT AMCHEM PRODUCTS INC v WINDSOR 7 Miller & M. Kane 7B Federal Practice and Procedure 1785p 107 and n 34 1986 I am not saying that the settlement counts only one way Ante at 26 n 16 Rather the settlement may simply add a great deal of information to the court's inquiry and will often expose diverging interests or common issues that were not evident or clear from the complaint and courts can and should look to it to enhance the ability . . to make informed certification decisions In re Asbestos 90 F. 3d 963 975 CA5 1996 The majority may mean that the District Court gave too much weight to the settlement But I am not certain how it can reach that conclusion It cannot rely upon the Court of Appeals for that court gave no positive weight at all to the settlement Nor can it say that the District Court relied solely on a common interest in a fair compromise ante at 29 for the District Court did not do so Rather it found the settlement relevant because it explained the importance of the class plaintiffs common features and common interests The court found predominance in part because The members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system 157 F. R. D. at 316 The settlement is relevant because it means that these common features and interests are likely to be important in the proceeding that would ensue proceeding that would focus primarily upon whether or not the proposed settlement fairly and properly satisfied the interests class members had in common That is to say the settlement underscored the importance of a the DISSENT 8 AMCHEM PRODUCTS INC v WINDSOR common fact of exposure b the common interest in receiving some compensation for certain rather than running a strong risk of no compensation and c the common interest in avoiding large legal fees other transaction costs and delays Ibid Of course as the majority points out there are also important differences among class members Different plaintiffs were exposed to different products for different times each has a distinct medical history and a different history of smoking and many cases arise under the laws of different States The relevant question however is how much these differences matter in respect to the legal proceedings that lie ahead Many if not all toxic tort class actions involve plaintiffs with such differences And the differences in state law are of diminished importance in respect to a proposed settle- ment in which the defendants have waived all defenses and agreed to compensate all those who were injured Id at 292 These differences might warrant subclasses though subclasses can have problems of their own There can be a cost in creating more distinct subgroups each with its own representation he more subclasses created the more severe conflicts bubble to the surface and inhibit settlement . The resources of defendants and ultimately the community must not be exhausted by protracted litigation Weinstein Individual Justice in Mass Tort Litigation at 66. Or these differences may be too serious to permit an effort at group settlement This kind of determination as I have said is one that the law commits to the discretion of the district reviewable for abuse of discretion by a court of appeals I believe that we are far too distant from the litigation itself to reweigh the specific Rule 23 determinations and to find them erroneous without the benefit of the Court of Appeals first having restudied the matter with today's legal standard in mind DISSENT AMCHEM PRODUCTS INC v WINDSOR 0 Third the majority concludes that the representative parties will not fairly and adequately protect the interests of the class Rule 23 It finds a serious conflict between plaintiffs who are now injured and those who may be injured in the future because for the immediate currently injured the critical goal is generous payments a goal that tugs against the interest of exposure plaintiffs in ensuring an ample inflationprotected fund for the future Ante at 32 it I agree that there is a serious problem but it is a problem that often exists in toxic tort cases See Weinstein supra at 64 noting that conflict between present and future claimants is almost always present in some form in mass tort cases because long latency periods are needed to discover injuries see also Judicial Conference Report 34-35 Because many of the defendants in these cases have limited assets that may be called upon to satisfy the judgments obtained under current common tort rules and remedies there is a real and present danger that the available assets will be exhausted before those later victims can seek compensa- tion to which they are entitled citation omitted And it is a problem that potentially exists whenever a single defendant injures several plaintiffs for a settling plaintiff leaves fewer assets available for the others With class actions at least plaintiffs have the consolation that a district court thoroughly familiar with the facts is charged with the responsibility of ensuring that the interests of no class members are sacrificed But this Court cannot easily safeguard such interests through review of a cold record What constitutes adequate representation is a question of fact that depends on the circumstances of each case Wright Miller & Kane 7A Federal Practice and Procedure 1765 at 271. That is particularly so when as here there is an unusual baseline namely the real and present danger described by the Judicial Conference DISSENT 10 AMCHEM PRODUCTS INC v WINDSOR Report above The majority's use of the lack of an inflation adjustment as evidence of inadequacy of representation for future plaintiffs ante at 32-33 is one example of this difficulty An inflation adjustment might not be as valuable as the majority assumes if most plaintiffs are old and not worried about receiving compensation decades from now There are of course strong arguments as to its value But that disagreement is one that this Court is poorly situated to resolve Further certain details of the settlement that are not discussed in the majority opinion suggest that the settlement may be of greater benefit to future plaintiffs than the majority suggests The District Court concluded that future plaintiffs receive a significant value from the settlement due to variety of its items that benefit future plaintiffs such as 1 tolling the statute of limitations so that class members will no longer be forced to file premature lawsuits or risk their claims being barred 2 waiver of defenses to liability 3 payment of claims if and when members become sick pursuant to the settlement's compensation standards which avoids the uncertainties long delays and high transaction costs including attorney's fees of the tort system 4 some assurance that there will be funds available if and when they get sick based on the finding that each defendant has shown an ability to fund the payment of all qualifying claims under the settlement and 5 the right to additional compensation if cancer develops many settlements for plaintiffs with noncancerous conditions bar such additional claims 157 F. R. D. at 292. For these reasons and others the District Court found that the distinction between present and future plaintiffs was illusory 157 R. D. at 317-318 I do not know whether or not the benefits are more or less valuable than an inflation adjustment But I can certainly recognize an argument that they are To DISSENT AMCHEM PRODUCTS INC v WINDSOR 11 choose one more brief illustration the majority chastises the settlement for extinguishing consortium claims ante at 33 34 but does not note that as the District Court found the defendants historical settlement averages upon which the compensation values are based include payments for loss of consortium claims and accordingly the Compensation Schedule is not unfair for this ascribed reason 157 F. R. D. at 278. The difficulties inherent in both knowing and understanding the vast number of relevant individual factbased determinations here counsel heavily in favor of deference to district court decisionmaking in Rule 23 decisions Or at the least making certain that appellate court review has taken place with the correct standard in mind Fourth am more agnostic than is the majority about the basic fairness of the settlement Ante at 31-34 The District Court's conclusions rested upon complicated factual findings that are not easily cast aside It is helpful to consider some of them such as its determination that the settlement provided fair compensation . while reducing the delays and transaction costs endemic to the asbestos litigation process and that the proposed class action settlement is superior to other available methods for the fair and efficient resolution of the asbestos personal injury claims of class members 157 F. R. D. at 316 citation omitted see also id at 335 The inadequate tort system has demonstrated that the lawyers are well paid for their services but the victims are not receiving speedy and reasonably inexpensive resolution of their claims Rather the victims recoveries are delayed excessively reduced by transaction costs and relegated to the impersonal group trials and mass consolidations The sickest of victims often go uncompensated for years while valuable funds go to others who remain unim- paired by their mild asbestos disease Indeed these DISSENT 12 AMCHEM PRODUCTS INC v WINDSOR unimpaired victims have in many states been forced to assert their claims prematurely or risk giving up all rights to future compensation for any future lung cancer or mesothelioma The plan which this Court approves today will correct that unfair result for the class members and the ... defendants id at 279 280 settlement will result in less delay for asbestos claimants than that experienced in the present tort system and will result in the CCR defendants paying more claims at a faster rate than they have ever paid before id at 292 Edley & Weiler 30 Harv J. Legis at 405 407 finding that here are several reasons to believe that this settlement secures important gains for both sides and that they firmly endorse the fairness and adequacy of this settlement Indeed the settlement has been endorsed as fair and reasonable by the AFL and its Building and Construction Trades Department which represents a substantial percentage of class members 157 F. R. D. at 325 and which has a role in monitoring implementation of the settle- ment id at 285. I do not intend to pass judgment upon the settlement's fairness but I do believe that these matters would have to be explored in far greater depth before I could reach a conclusion about fairness And that task as I have said is one for the Court of Appeals Finally I believe it is up to the District Court rather than this Court to review the legal sufficiency of notice to members of the class The District Court found that the plan to provide notice was implemented at a cost of millions of dollars and included hundreds of thousands of individual notices a ranging television and print campaign and significant additional efforts by 35 international and national unions to notify their members 157 R. D. at 312-313 336. Every notice emphasized that an individual did not currently have to be sick to be a class member And in the end the DISSENT AMCHEM PRODUCTS INC v WINDSOR 13 District Court was confident that Rule 23 and due process requirements were satisfied because as a result of this extensive and expensive notice procedure over six million individuals received actual notice materials and millions more were reached by the media campaign Id at 312 333 336. Although the majority in principle is reviewing a Court of Appeals conclusion it seems to me that its opinion might call into question the related determinations of the District Court Ante at 34. To the extent that it does so I disagree for such findings cannot be so quickly disregarded And I do not think that our precedents permit this Court to do so See Reiter 442 U. at 345 Yamasaki 442 U. at 703 II The issues in this case are complicated and difficult The District Court might have been correct Or not Subclasses might be appropriate Or not I cannot tell And I do not believe that this Court should be in the business of trying to make these based determinations That is a job suited to the district courts in the first instance and the courts of appeal on review But there is no reason in this case to believe that the Court of Appeals conducted its prior review with an understanding that the settlement could have constituted a reasonably strong factor in favor of class certification For this reason I would provide the courts below with an opportunity to analyze the factual questions involved in certification by vacating the judgment and remanding the case for further proceedings