385 F.3d 386 | 3rd Cir. | 2004
CHERTOFF, Circuit Judges
IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/ DEXFENFLURAMINE) (Filed October 5, 2004)
PRODUCTS LIABILITY LITIGATION
FLEMING & ASSOCIATES, LLP, on behalf of its clients subject to the Sixth Amendment to the Nationwide George M. Fleming
Class Action Settlement Agreement with Sylvia Davidow American Home Products Corporation, Rand P. Nolen
Appellant in No. 03-2025 Fleming & Associates, LLP 1330 Post Oak Blvd., Suite 3030 JOEL ZUCKERBERG, Houston, TX 77056 Appellant in No. 03-2063
Jonathan Massey (argued) HARITON & D’ANGELO, LLP and Jonathan Massey, P.C. NAPOLI, KAISER, BERN & 3920 Northampton Street N.W. ASSOCIATES, LLP, on behalf of Washington, DC 20015 themselves and their clients who are specifically identified in and/or whose Mike O’Brien
claims are affected by Pretrial Order No. Mike O’Brien, P.C. 2778, 1330 Post Oak Blvd., Suite 2960 Appellants in No. 03-2072 Houston, TX 77056 Attorneys for Appellant _______________ Fleming & Associates, LLP N. Albert Bacharach, Jr. 115 Northeast 6th Avenue
On Appeal from the United States Gainesville, FL 32601-3416 District Court for the Eastern District of Pennsylvania Attorney for Appellant Civil Action No. 99-20593 Joel Zuckerberg Houston, TX 77077 Paul J. Napoli Denise A. Rubin Attorneys for Appellees W. Steven Berman American Home Products Corporation Napoli, Kaiser, Bern & Associates (a.k.a Wyeth), Plaintiffs’ Class and Class 3500 Sunrise Highway, Suite T207 Counsel Great River, NY 11739 Mario D’Angelo Hariton & D’Angelo OPINION OF THE COURT 3500 Sunrise Highway, Suite T207 Great River, NY 11739
FUENTES, Circuit Judge: Attorneys for Appellants This appeal arises from the multi- Napoli, Kaiser, Bern & Associates, LLP district litigation (MDL) 1203 diet drug and Hariton & D’Angelo, LLP product liability litigation. The appeal concerns the validity of an amendment (the “Sixth Amendment”) to the Nationwide
Peter L. Zimroth Class Action Settlement Agreement (the Arnold & Porter “Settlement A greem ent”) e xecu ted 399 Park Avenue between Appellants and American Home New York, NY 10022 Products Corporation (a.k.a. “Wyeth”) [1] in relation to the diet drugs litigation. The
Robert D. Rosenbaum (argued) Sixth Amendment was approved by the Sarah M. Brackney District Court in Pretrial Order (“PTO”) Arnold & Porter No. 2778. The Amendment gives 555 Twelfth Street claimants who would otherwise have been Washington, DC 20004 bound by the Settlement Agreement the right to opt out of the Agreement and
Arnold Levin proceed with tort litigation against Wyeth Michael D. Fishbein (argued) in the event that the fund established to Fred S. Longer pay claims und er the S ettlement Arnold & Levin Agreement (i.e., the “Settlement Trust”) 510 Walnut Street, Suite 500 becomes insolvent. Under the Sixth Philadelphia, PA 19106 Charles R. Parker [1] American Home Products changed its John Roberson name to Wyeth in March 2002. We use Hill & Parker the name Wyeth. 5300 Memorial Drive, Suite 700 Amendment, claimants’ rights to sue issued a press release reporting abnormal Wyeth are subject to certain restrictions. echocardiograms in a “higher than Because of these restrictions, Appellants expected percentage of” patients taking the here argue that the District Court should drugs. See Press Release, FDA, FDA not have approved the Sixth Amendment Announces Withdrawal of Fenfluramine as fair, adequate and reasonable. and Dexfenfluramine (Fen-Phen) (Sept. Appellants further argue that they were 15, 1997). Subsequent studies suggested deprived of due process in that they (1) did that the drugs may have been linked to not receive adequate notice of the risk of serious cardiopulmonary side effects, Trust insolvency when they opted to be including heart-valve regurgitation (the bound by the Settlement Agreement and reverse flow of blood through a closed ( 2 ) d i d n o t re c e i v e a d eq u a t e valve of the heart). representation.
After the withdrawal of the diet drugs, Because we believe that the Sixth 18,000 individual suits and 100 class Amendment provides class members with actions were filed in state and federal additional rights that did not exist under courts. In December 1997, the federal the original Settlement Agreement cases were consolidated for pretrial (specifically, the right to sue W yeth, albeit purposes in the Eastern District of subject to certain conditions) we will Pennsylvania pursuant to MDL 1203. In affirm the District Court’s approval of the November 1999, Wyeth entered into a Amendment as fair, adequate and Nationwide Class Action Settlement reasonable. We reject the due process Agreement with users of the diet drugs in notice and adequate representation the United States. After conducting arguments, because those arguments relate fairness proceedings, the District Court in to the original Settlement Agreement, the the Eastern District of Pennsylvania validity of which is not properly before certified a settlement class and approved this Court, and have been previously and the Settlement Agreement, finding it “fair, finally heard and rejected by this Court. reasonable and adequate.” See PTO 1415. Accordingly, we hold the Sixth The Settlement Agreement became final Amendment to the Settlement Agreement upon exhaustion of all appeals. The to be valid. Settlement Agreement established the
Settlement Trust to administer Wyeth’s
I. FACTUAL BACKGROUND AND
obligations to class members who agreed
PROCEDURAL HISTORY
to participate in the Settlement. Prior to 1997, Wyeth sold two Diet drug users who wished to opt out of prescription drugs for the treatment of the Settlement Agreement could do so by o b e s i t y , f e n f l u r a m i n e a n d filing an “Initial Opt Out” form by March dexfenfluramine, marketed as “Pondimin” 30, 2000. Putative class members were and “Redux.” In September 1997, the U.S. informed of the right to opt out through Food and Drug Administration (FDA) “an elaborate and extensive plan of and to pursue claims against Wyeth subject notice,” which included weeks of to certain limitations. These limitations television, print, and internet advertising, included a prohibition against “seek[ing] patient notification materials provided punitive, exemplary, or any multiple through pharmacists and prescribing damages.” App. at 85-86. doctors, a toll-free number, and a detailed
Diet drug users who currently suffer “notice package” sent to all possible class from severe heart-valve regurgitation or members whose names and addresses were from moderate reg urgitatio n w ith known or who called the toll-free number. complicating features, or who have less PTO 1415. Persons who timely exercised severe heart-valve conditions that progress initial opt out rights were free to pursue to the more serious levels in the fifteen any and all claims against Wyeth. Those years following execution of the who did not remained members of the Settlement Agreement, may claim and class and agreed to be bound by the re co ver com pens ation u nder the conditions and benefits of the Settlement Settlement. The amount of their recovery Agreement. Upon ap proving the is determined by damage “Matrices” that Settlement Agreement, the District Court assess factors such as severity and length entered PTO 1415, which expressly “bars of illness to calculate the damage award. [3] and enjoins” all class members “from Alternatively, class mem bers with asserting, and/or continuing to prosecute” conditions that would allow them to any settled claim against Wyeth. [2] qualify for these “Matrix” benefits (and The S et tl em e n t A g r ee m ent who fulfill other eligibility requirements contained an exception to this bar, set out in the Agreement) may exercise permitting class members who met “Back-End Opt Out” rights and pursue tort specific physical requirements (diagnosed claims against Wyeth, so long as they have as having a severity of heart-valve not already made a claim for compensation regurgitation defined as “FDA Positive”) under the Settlement Agreement. Once a to pursue “Intermediate Opt Out” rights. class member discovers that his heart- These rights allowed class members to opt valve condition is serious enough to out of the Settlement at a date beyond the qualify him for Matrix-level benefits, the Initial Opt Out period (without Wyeth class member must make an election as to asserting statute of limitations defenses) [3] Class members may receive payment which option to pursue. The Settlement likely claims. Agreement specifically provides that “[a]
However, after approval of the Class Member may not exercise a Back- Settlement Agreement, the Trust was End Opt Out right after claiming any inundated with Green Form claims for Matrix Compensation Benefits.” App. at Matrix benefits in a volume not anticipated 575. As with the Intermediate Opt Out, by the experts who testified at the fairness class members exercising Back-End Opt hearing. As the District Court determined, Out rights will not be blocked by statute of a significant proportion of the filings came limitations defenses, but are restricted from a few law firms that represented large from asserting punitive, exemplary, or numbers of claimants. The District Court multiple damages. also observed that, in conducting their Thus, according to the system set claims process, these firms carried out out in the Settlement Agreement, any diet mass screening programs in which drug users who fail to exercise Initial, cardiologists retained by the firms “made Intermediate, or Back-End Opt Out rights unreasonable judgments on a broad scale” are bound by the terms of the Settlement concerning the existence, history, nature, Agreement and its bar against attempting and degree of heart-valve disease claimed. to pursue any claims against Wyeth. For PTO 2640. The claims process was those who remain in the Settlement, a further frustrated by the fact that several of claim for Matrix benefits is made by the Green Forms submitted were submitting a three-part “Green Form” to incomplete, which made it impossible for the Settlement Trust. Wyeth funds Trust administrators to assess eligibility payment of Matrix benefits through for the particular Matrix benefit claimed. deposits into the Trust. Under the To ameliorate the situation, the District Settlement Agreement, Wyeth’s funding Court ordered that all claims for M atrix obligation is limited to $3.75 billion, plus benefits be subjected to audit. any increase in value of the principal of
Despite this effort, the risk the Trust. The fact of this limit was made remained that the number of claims would known to class members through the class exhaust the Trust’s available funds. notice. During the fairness hearing before Additionally, the remedy intended under the District Court, experts testified as to the Settlement Agreement to address the their conclusion that, after considering problem of insufficient Matrix funds, the e x t e n s iv e e p i d e m i o l o g i c a l a n d Back-End Opt Out, was not available to demographic evidence, $3.75 billion was class members who had already filed more than sufficient to pay all Matrix claims for Matrix benefits. Therefore, in claims anticipated under the Settlement. response to the potential risk of Trust Based on this evidence, to which none of insolvency, Wyeth and Class Counsel the parties objected, the District Court executed a proposed Sixth Amendment to found the funds sufficient to satisfy all the Settlement Agreement, which would Form submitted for Matrix benefits. [6] By create a new opt out right for class members who claimed Matrix benefits by extension, this provision allows the Trust May 3, 2003, and were found medically to determine whether a class member is eligible for these benefits, but would qualified to exercise a Sixth Amendment otherwise go without payment under the Opt Out. original Settlement Agreement in the event
After conducting an approval of funding insufficiency. [4] Under the Sixth hearing, the District Court issued PTO Amendment Opt Out right, claimants may 2778, finding the Sixth Amendment fair, pursue a tort action but may not name any reasonable and adequate. However, defendant other than Wyeth, may not join Ap pellan ts argue that the Sixth any other plaintiff (other than a derivative Amendment deprives them of their full plaintiff), and may not consolidate their litigation rights by imposing new action with any other. [5] The Sixth restrictions on their ability to pursue tort Amendment Opt Out right is also subject claims against Wyeth (i.e., limiting the to the same restrictions placed on the defendants whom they may name and join, Intermediate and Back-End Opt Out in that and barring consolidation of actions). persons exercising this opt out may not Related to this argument is Appellants’ pursue punitive, exemplary, or multiple claim that the class notice pertaining to the damages. In addition to the opt out original Settlement Agreement was provision, the Sixth Amendment also sets inadequate for not specifically informing forth criteria for the required level of diet drug users of the risk of Trust completedness of the three-part Green insolvency and that their representation was inadequate as a result of this risk of insolvency. Thus, Appellants contend that class members affected by the risk of insolvency were denied due process and [4] Before the District Court’s approval of should be permitted to opt out of the the Settlement Agreement in August 2000, Settlement unconditionally. the Settlement Agreement had been amended five times. For convenience, we
II. DISCUSSION
will refer to the Settlement Agreement as it stood prior to approval of the Sixth Amendment as the “original” settlement. [6] Thus, under the Sixth Amendment, a [5] The option is not available to class claim for Matrix benefits will be deemed members who have already received a filed upon the Trust’s receipt of either (1) payment of any Matrix benefit. Instead, a “Part I” of a Green Form signed by the residual amount of $255 million will class member or (2) “Part II” of a Green remain in the fund to pay claims arising Form signed by a class member indicating from progression of already compensated that he accepts entitlements to M atrix Matrix-level diseases. benefits.
A. Fairness, Adequacy and R e a s o n a b l e n e s s o f t h e S i x th Amendment
1. Additional Rights Provided by the Sixth Amendment Under Federal Rule of Civil class members that the original Settlement Procedure 23(e)(1)(A), a “court must Agreement did not contain. They stress approve any settlement, voluntary that, in evaluating an amendment to a class dismissal, or compromise of the claims, action settlement, the court should issues, or defenses of a certified class.” consider whether the amendment provides Subsection (C) states that “[t]he court may additional benefits and protections for the approve a settlement, voluntary dismissal, class. See, e.g., In re Sulzer Prosthesis or compromise that would bind class Liab. Litig., 2002 WL 553728, at *1 (N.D. members only after a hearing and on Ohio Mar. 14, 2002) (granting approval to finding that the settlement, voluntary amended settlement agreement that dismissal, or compromise is fair, increased overall value of the settlement reasonable, and adequate.” In PTO 2778, and eliminated liens on defendants’ assets the District Court held that this standard for the benefits of opt-outs). One purpose for analyzing the fairness of a proposed for which it is appropriate to approve such settlement under Rule 23(e) should also be an amendment is adjusting for changed applied to analyze the fairness of a circumstances, particularly in light of the proposed amendment to the settlement. parties’ experience in implementing the See Walsh v. Great Atl. & Pac. Tea Co., agreement. See, e.g., In re Joint E. & S. 726 F.2d 956, 965 (3d Cir. 1983) (A court Dists. Asbestos Litig., 237 F. Supp. 2d may approve a proposed class action 297, 300 (E.D.N.Y. 2002). settlement if it is “fair, adequate, and
The new Sixth Amendment Opt Out right reasonable” to class members.). [7] provides class members who claim Matrix Class Counsel and Wyeth argue that the benefits with at least some protection Sixth Amendment provided new rights to against the risk that their injuries would go
uncompensated if the Settlement Trust becomes insolvent at some future time. As funding contribution is exhausted. Appellants are correct that exhaustion of funds voids the Settlement Agreement and Appellants do not argue that any leaves them free to pursue their tort rights provision of the Settlement Agreement without restriction, “then Class Members obligates Wyeth beyond this amount if the will have lost nothing by [the District Trust cannot satisfy all claims. Rather, Court’s] approval of the Amendment.” Id. Appellants claim that class members did not receive adequate notice under Rule Further, the Amendment provides 23(e) of the risk of Trust insolvency. that, if the Trust becomes insolvent, Wyeth Thus, they argue from principles of has the option of paying any eligible contract and equity (discussed more fully unpaid claims (although it would have no below) that any unpaid class members contractual obligation to do so) or leaving would not have received the full benefit of them unpaid, subject to the Sixth their agreement under the Settlement due Amendment Opt Out. This provision was to a mutual mistake of fact concerning the intended to give Wyeth an incentive to Trust’s capacity to satisfy all potential fund such benefits voluntarily in order to claims. Therefore, Appellants contend that avoid defending tort claims by unpaid the Settlement Agreement is void and that Matrix claimants (a threat that did not exist unpaid claimants should be released from before the Amendment). Consolidated the agreement and permitted to sue Wyeth Brief at 26. However, Appellants argue without restriction. that Wyeth always had a right to
voluntarily fund unpaid Matrix claims Even if Appellants are correct in these despite the Sixth Amendment and, contract and equity arguments, the District therefore, that this provision of the Court found that class members would Amendment conferred no additional suffer no harm by approval of the Sixth benefit on Appellants. Appellant Brief at Amendment. The Court explained that 25. We are not convinced by Appellants’ because Wyeth’s obligation to the class is argument here. It is true that if Wyeth capped at $3.75 billion, the Amendment chooses to pay a claim in the event of provides a new benefit by providing those funding exhaustion, then the compensated Matrix claimants who would otherwise go claimant will simply have received his unpaid “with a specific contractual right to bargained-for benefit under the Settlement. pursue their compensatory claims against However, Appellants cannot view this Wyeth” by opting out of the Settlement. provision of the Amendment in isolation. App. at 10. This right was nonexistent The Amendment as a whole provides an under the original Settlement Agreement additional benefit to claimants through its as eligible class members who filed Green new opt out right in addition to the F o rm s claim in g M atrix be nefit s incentive it gives Wyeth to pay claims relinquished their Back-End Opt Out rights voluntarily. A claimant’s chance of and, consequently, agreed to be bound by recovering damages is only strengthened the Settlement. On the other hand, if by the added incentive provided by the opt tort action against Wyeth at all if the Trust
becomes insolvent. [8] The District Court out and voluntary payment provisions of the Sixth Amendment combined. Thus, did not find sufficient reason to reject the the Sixth Amendment provides all Amendment simply because the right to claimants with additional protections sue under it “comes at the price of certain against being left empty-handed that did restrictions and may not go so far as not exist under the original Settlement [Appellants] would like.” App. at 11. Agreement. Further, the District Court stressed that the
Sixth Amendment provides more security for a Matrix claimant than the option
2. Restrictions on the Sixth proposed by Appellants because “[i]n the Amendment Opt Out Right event of a funding shortfall, class members cannot be at all sure they would be able to Appellants claim that the Sixth undo the Agreement and sue Wyeth in Amendment unfairly and unreasonably tort.” App. at 11. restricts the opt out right that it provides. First, Appellants assert that the Sixth Ap pellan ts also specifically Amendment Opt Out strips class members challenge the reasonableness of the Sixth of their rights to join plaintiffs and name Amendment’s restriction on joinder, additional defendants in any lawsuit filed arguing from principles of civil procedure against Wyeth. We are not persuaded by that the plaintiff is “the master of his own this argument because, as discussed above, complaint” and that restrictions on joinder the Sixth Amendment still provides class deprive opt-out plaintiffs of the right to members with an opt out right that did not choose their jurisdiction. Appellant Brief exist under the original Settlement at 26 (citing Holmes Group, Inc. v. Agreement. The restrictions imposed Vornado Air Circulation Sys., 535 U.S. apply only to suits brought by class 826, 831 (2002)). In response, Wyeth members exercising the Sixth Amendment asserts that it negotiated this restriction in Opt Out and, in the absence of the Amendment, these class members would order to prevent fraudulent joinders by settlement, voluntary dismissal, or plaintiffs attempting to block Wyeth’s compromise.” This notice must inform removal of state court actions to federal class members of the existence of the court. Consolidated Brief at 31-36. pending litigation and provide them with Although Appellants also cite decisions of the information “needed to decide, the District Court in our case encouraging intelligently, whether to stay in or opt out.” the policy of joining claims and parties, Amchem Prods. v. Windsor, 521 U.S. 591, Appellant Brief at 27-28, they cite no case 628 (1997); see also Phillips Petroleum law suggesting that it would be Co. v. Shutts, 472 U.S. 797, 812 (1985) unreasonable for the parties to enter into a (stating that class members must be contract that imposed such a joinder provided with meaningful notice and an restriction as a condition of a right to sue opportunity to exclude themselves from that did not exist before (as it had been the class). Appellants argue that the specifically relinquished under the original District Court’s finding of adequate notice Agreement). Consolidated Brief at 37. in approving the Settlement was premised Again, despite the joinder restriction, the in part on the assumption that the Sixth Amendment still added new rights to Settlement funds were sufficient to pay all the Settlement Agreement without claims for Matrix benefits. To have been depriving class members of any adequate, Appellants argue that the notice preexisting rights. should have informed the class that certain
members could receive no compensation if the fund becomes insolvent. Appellant Brief at 34-35. Appellants assert that, for
B. Class Members’ Due Process Rights: Adequacy of Notice and Class these class members “trapped inside the Representation settlement without their promised benefit,”
the Sixth Am endm ent’s litiga tion restrictions amount to a deprivation of
Appellants argue that M atrix rights without notice or opportunity for a claimants who would be left empty-handed hearing. Id. at 35-36. if the settlement funds prove to be
Appellants also argue that these insufficient were deprived of their due class members did not receive adequate process rights in two instances: adequacy class representation, as required by Rule of notice and adequacy of class 23(a). Under Subsection (4), “[o]ne or representation. First, Appellants claim that more members of a class may sue or be class members did not receive adequate sued as representative parties on behalf of notice of their opt out rights in accordance all only if . . . the representative parties with Rule 23(e). Under Subsection (B), will fairly and adequately protect the “[t]he court must direct notice in a interests of the class.” Accordingly, class reasonable manner to all class members members with divergent or conflicting who would be bound by a proposed interests cannot be adequately represented inadequate representation in light of this by the same named plaintiffs and class potential risk, despite the fact that such a counsel. Amchem, 521 U.S. at 625-26. situation has not materialized and was not Appellants cite Stephenson v. Doe even contemplated at the time of the Chemical Co., a case in which the Second Settlement. Although couched in terms of C i r c u i t h e l d t h at u n a n t i ci p a t e d the Sixth Amendment, in reality developments, occurring even years after Appellants’ due process challenges take the settlement, may render inadequate the exception to the notice and adequacy of representation and notice afforded some representation involved with the original class members. 273 F.3d 249, 261 (2d Cir. Settlement Agreement, insofar as they are 2001), aff’d in part, rev’d in part per centered around the alleged failure to curiam, 539 U.S. 111 (2003). The notify potential class members of the risk Stephenson Court held that no class action of insolvency of the Trust. The District orders were binding on these class Court here was faced with the question of members and, therefore, upheld a whether a proposed amendment to the collateral attack on the class settlement. original Settlement Agreement was proper, Id. at 259. The Supreme Court’s per and it is the Court’s answer to that curiam opinion affirmed Stephenson on an question that is being appealed, not the equally divided 4-4 vote, and therefore is validity of the original settlement. For that not binding. Still, Appellants cite it as reason, this appeal is not the proper persuasive authority here. They argue that vehic le to challenge the original the Sixth Amendment creates tw o Settlement Agreement. That Agreement categories of class members, each one with resulted in a final order certifying the class divergent interests: (1) those who either and approving the settlement, which was claimed benefits early enough to be not addressed by the District Court in this compensated or opted out of the matter. See In re Diet Drugs, 282 F.3d Settlement under the known opt out rights 220, 229 (3d Cir. 2002). To present such in the Ag re emen t (i.e., Initia l, a challenge, Appellants must seek relief Intermediate, or Back-End); and (2) those either under Rule 60(b) [9] or through a who claimed benefits later and are now left with the restrictive Sixth Amendment Opt Out right. Because of these divergent [9] Rule 60(b) allows parties to petition for interests, Appellants argue that having a relief from final judgments due to, among single class counsel for both groups of other things, “mistake, excuse, or class members resulted in inadequate excusable neglect,” “fraud . . ., representation. Appellant Brief at 39. misrepresentation, or other misconduct of In short, Appellants claim that they an adverse party,” or if “the judgment is received inadequate notice that the Trust void.” Fed. R. Civ. P. 60(b); see, e.g., Mayberry v. Maroney, 558 F.2d 1159, could become insolvent and received
1163 (3d Cir. 1977) (entertaining Rule collateral attack on the order approving the v. Local Union No. 469, 613 F.2d 1235, The District Court held that the principles of justiciability prevented it from addressing the issue of what the consequences would be for the parties if the Settlement Trust were actually to become exhausted. The Court held that the parties had no standing to bring such a claim because they failed to allege harm that is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” PTO 2778 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). The Court further pointed out that any future depletion of the Trust remains purely speculative at the moment, particularly since Wyeth could still decide to supplement the funds voluntarily in order to avoid further litigation. We agree that a funding shortf all is neith er “actual” nor “imminent” here. This is particularly true given the measures currently undertaken by Trust administrators, such as auditing of Green Form claims, to ease the strain on the Trust. Considering these measures, and the fact that $2 billion still remains available to the Trust to satisfy Matrix benefits, depletion of the Settlement funds may never occur. We, therefore, reject Appellant’s claim here as it is not fit for adjudication at this time.
III. CONCLUSION
For the foregoing reasons, we affirm the order of the District Court as set forth in PTO 2778, approving the Sixth Amendment to the Nationwide Class Action Settlement Agreement.
NOTES
[2] PTO 1415 further provides for the based on one level of disease and “step settlement court to retain “continuing and up” to additional M atrix compensation if exclusive jurisdiction . . . to administer, they exhibit a Matrix-level injury by year supervise, interpret and enforce the 2015 and their heart-valve conditions Settlement in accordance with its terms.” increase in severity to a higher level before they reach the age of 80.
[7] This Court has not addressed the it is now, Wyeth’s financial obligations to proper standard for a District Court to the settlement Trust are subject to a specified maximum under the Settlement review an amendment to a settlement Agreement. Wyeth, therefore, has no agreement. Neither party argues, however, that the District Court applied the wrong further obligation to pay otherwise eligible Matrix claimants once its $3.75 billion standard.
[8] Class members may still have a right to have no right to bring an action at all because they relinquished this right under sue on a mistake of fact contract theory, the Settlement Agreement when they asserted by Appellants here. However, in claimed Matrix benefits. The provision of such a case, they would argue that the the Agreement barring class members who Settlement Agreement is void, which claim Matrix benefits from subsequently would render the Sixth Amendment exercising a Back-End Opt Out existed irrelevant in any case and, thus, have no before the Sixth Amendment. See bearing on the issue of whether the District Settlement Agreement § IV.D.4.b. Court’s approval of the Amendment was Without the Amendment, therefore, class proper. members would have no right to bring a Settlement.
[10] Moreover, this Court has 1239 (3d Cir. 1980) (noting that “[t]he[] already addressed the notice and adequacy issues have not been briefed on appeal, and it does not appear from the record that of representation with respect to the original Settlement Agreement and we the parties thoroughly developed these found the requirements of due process topics below” and further noting that “the satisfied. See In re Diet Drugs, 282 F.3d trial court should have an opportunity to at 230-31; see also Shutts, 472 U.S. at 811- pass on these important questions in the first instance”). 12 (setting forth “procedural due process protection[s]” necessary in order for a Of course, Appellants are in no way class action judgment to have binding precluded from challenging the adequacy force on absent class members). Due of representation with respect to the process does not require this Court to negotiation of the Sixth Amendment here. entertain challenges to adequacy of notice However, we reject Appellant’s argument and representation every time any case that the Sixth Amendment created two related to a class action judgment comes groups of class members with divergent up on appeal. See Epstein v. MCA, Inc., interests. At the time that the Amendment 179 F.3d 641, 648 (9th Cir. 1999) (“Due was negotiated, the two classes Appellants process requires that an absent class identify–individuals who have already member’s right to adequate representation opted out or have been fully compensated be protected by the adoption of the and those that remain uncompensated and appropriate procedures by the certifying bound by the settlement–did not have court and by the courts that review its divergent interests. For obvious reasons, determinations; due process does not the former group had no interest require collateral second guessing of those whatsoever in the negotiation, while the determinations and that review.”). If latter group’s interest was to maximize the Appellants have arguments that merit a benefits available given the possibility that Rule 60(b) motion or a collateral attack on the Trust may become insolvent. Hence, the validity of settlement as to certain class class counsel only had one real interest in members, then a record must be fully negotiating the Amendment, and, developed in the district court in the first accordingly, there was no conflict. instance. Cf. H. Prang Trucking Co., Inc. C. Justiciability Appellants make the final argument 60(b) motion with respect to class action that Matrix claimants who will not be paid settlement). due to funding insufficiency should be
[10] See, e.g., Stephenson, 273 F.3d 249 immediately released from the Settlement (allowing collateral attack on a class action so that they may pursue unrestricted settlement). actions against Wyeth in the tort system.
