Cite as: 516 U. S. 417 (1996)
Breyer, J., dissenting
1984), cert. denied, 470 U. S. 1051 (1985). The Second Circuit, the home of the Agent Orange litigation, had not decided the issue. And, the two Agent Orange Second Circuit trial judges who (due to certain here irrelevant procedural considerations) both considered the companies' "government contractor" defense decided the issue in opposite ways. Compare In re "Agent Orange" Product Liability Litigation, 565 F. Supp. 1263, 1274-1275 (EDNY 1983), with In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740, 847-850 (EDNY 1984), aff'd, 818 F. 2d 145 (CA2 1987), cert. denied sub nom. Fraticelli v. Dow Chemical Co., 484 U. S. 1004 (1988). This Court did not authoritatively uphold the "government contractor" defense until 1988, four years after the settlement here at issue. Boyle, supra. And, it did so on a ground different from that upon which the Circuit Courts had previously relied. Compare McKay, supra, at 448-451; Tillett, supra, at 596-597 (finding the "government contractor defense" implicit in Feres v. United States, 340 U. S. 135 (1950)), with Boyle, supra, at 509-511 (explicitly rejecting Feres as the basis for a "government contractor defense").
In light of this contemporaneous legal uncertainty, the settlement, viewed from the companies' perspective and without benefit of hindsight, seems a reasonable litigation strategy, through which the companies avoided added litigation costs and the threat of significant additional liability while helping to provide the veterans with at least some compensation. See In re "Agent Orange," 597 F. Supp., at 749 (explaining why Agent Orange District Court approved the settlement). Nothing in the record here suggests the contrary. And, if reasonable at the time, the settlement must have been a "foreseeable" potential consequence of litigation and therefore within the scope of what the companies claim were implicit promises or warranties protecting them against the harms of litigation. See also 24 F. 3d 188, 205-208 (CA Fed. 1994) (Plager, C. J., dissenting). For that reason, this Court
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