Cite as: 527 U. S. 815 (1999)
Opinion of the Court
trict court, as here, certifies for class action settlement only, the moment of certification requires "heightene[d] attention," Amchem, 521 U. S., at 620, to the justifications for binding the class members. This is so because certification of a mandatory settlement class, however provisional technically, effectively concludes the proceeding save for the final fairness hearing. And, as we held in Amchem, a fairness hearing under Rule 23(e) is no substitute for rigorous adherence to those provisions of the Rule "designed to protect absentees," ibid., among them subdivision (b)(1)(B).27 Thus, in an action such as this the settling parties must present not only their agreement, but evidence on which the district court may ascertain the limit and the insufficiency of the fund, with support in findings of fact following a proceeding in which the evidence is subject to challenge, see In re Bendectin Products Liability Litigation, 749 F. 2d 300, 306 (CA6 1984) ("[T]he district court, as a matter of law, must have a fact-finding inquiry on this question and allow the opponents of class certification to present evidence that a limited fund
IUD Products Liability Litigation, 693 F. 2d 847, 852 (CA9 1982), cert. denied sub nom. A. H. Robins Co., Inc. v. Abed, 459 U. S. 1171 (1983) (class proponents must demonstrate that allowing the adjudication of individual claims will inescapably compromise the claims of absent class members), with, e. g., In re "Agent Orange" Product Liability Litigation, 100 F. R. D. 718, 726 (EDNY 1983), aff'd 818 F. 2d 145 (CA2 1987), cert. denied sub nom. Fraticelli et al. v. Dow Chemical Co. et al., 484 U. S. 1004 (1988) (requiring only a "substantial probability—that is less than a preponderance but more than a mere possibility—that if damages are awarded, the claims of earlier litigants would exhaust the defendants' assets"). Cf. In re Bendectin Products Liability Litigation, 749 F. 2d 300, 306 (CA6 1984). Because under either formulation, the class certification in this case cannot stand, it would be premature to decide the appropriate standard at this time.
27 See Issacharoff, Class Action Conflicts, 30 U. C. D. L. Rev. 805, 822 (1997) ("[I]n the context of a mandatory settlement class, the individual class member is presented with what purports to be a binding fait accompli, with the only recourse a likely futile objection at the fairness hearing required by Rule 23(e)").
849
Page: Index Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 NextLast modified: October 4, 2007