Supreme Court Docket Report, October Term, 2002 - Number 3

By Eileen Penner, Miriam R. Nemetz and Andrew H. Schapiro

The Supreme Court granted certiorari in two cases of potential interest to the business community. Amicus briefs in support of the petitioners are due on Thursday, December 19, 2002, and amicus briefs in support of the respondents are due on Monday, January 20, 2003.

1. Class Action Settlements - Collateral Attack on Adequacy of Representation. In 1984, Judge Jack Weinstein of the Eastern District of New York approved, and the Second Circuit upheld, a settlement in a class action brought on behalf of Vietnam veterans against manufacturers of Agent Orange, an herbicide used by the military as a defoliant and alleged to have caused a variety of illnesses. Under that settlement, modest payments were made to sick or deceased veterans, including those whose symptoms developed after the time of the judgment, provided their illnesses manifested no later than 1994. Today, the Supreme Court granted certiorari in In re Agent Orange Product Liability Litigation: Dow Chemical Co. v. Stephenson, No. 02-271, to determine whether that settlement precludes suits by veterans who allege that, as class members whose injuries from Agent Orange did not manifest themselves until after the settlement funds were exhausted, they were inadequately represented in the original proceedings and therefore should not be bound by the judgment therein.

The original Agent Orange litigation began in the late 1970's with the filing of hundreds of individual lawsuits and class actions by veterans and their families. The Judicial Panel on Multidistrict Litigation consolidated the suits for pretrial purposes in 1980, and, in 1983, Judge Weinstein certified a (b)(3) opt-out class under Fed. R. Civ. P. 23. In 1984, the parties reached a settlement in which defendants agreed to pay $180 million into a settlement fund. The settlement provided that "[t]he Class specifically includes persons who have not yet manifested injury." In re "Agent Orange" Prod. Liab. Litig., 597 F. Supp. 740, 865 (E.D.N.Y. 1984). Seventy-five percent of the settlement was allocated to compensate veterans (or their survivors) who became totally disabled or died before 1995, while the remaining 25 percent was to be used to establish a class assistance foundation for the benefit of all veterans in the class. The settlement specified that no payment would be made for death or disability occurring after December 31, 1994. The court of appeals upheld the settlement in its entirety...