858
Opinion of the Court
at 35-36 (citing, e. g., In re "Agent Orange" Product Liability Litigation, 996 F. 2d 1425, 1435-1436 (CA2 1993); In re "Agent Orange" Product Liability Litigation, 800 F. 2d 14, 18-19 (CA2 1986)). This argument is simply a variation of the position put forward by the proponents of the settlement in Amchem, who tried to discount the comparable failure in that case to provide separate representatives for subclasses with conflicting interests, see Brief for Petitioners in Amchem Products, Inc. v. Windsor, O. T. 1996, No. 96-270, p. 48 (arguing that "achieving a global settlement" was "an overriding concern that all plaintiffs [held] in common"); see also id., at 42 (arguing that the requirement of Rule 23(b)(3) that there be predominance of common questions of law or fact had been met by shared interest in "the fairness of the settlement"). The current position is just as unavailing as its predecessor in Amchem. There we gave the argument no weight, see 521 U. S., at 625-628, observing that "[t]he benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration," but the determination whether "proposed classes are sufficiently cohesive to warrant adjudication" must focus on "questions that preexist any settlement," id., at 622-623.32 Here, just as in the earlier case, the proponents of the settlement are trying to rewrite Rule 23; each ignores the fact that Rule 23 requires protections under subdivisions (a) and (b) against inequity and potential inequity at the precertification stage, quite independently of the required determination at postcertification fairness review under subdivision (e) that any settlement is fair in an overriding sense. A fairness hearing under subdivision (e) can no more swallow the preceding protective requirements
32 We made this observation in the context of Rule 23(b)(3)'s predominance enquiry, see Amchem, 521 U. S., at 622-623, and noted that no " 'limited fund' capable of supporting class treatment under Rule 23(b)(1)(B)" was involved, id., at 623, n. 19.
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