Apocalypse Forever: Revisiting the Adequacy of the Agent Orange Settlement, Twenty-Five Years Later

Preview of Supreme Court Cases, Vol. 5, pp. 274, February 21, 2003

U of Texas Law, Public Law Research Paper No. 340

8 Pages Posted: 16 Feb 2013

Date Written: February 21, 2003


This article previews the issues and arguments in In re Agent Orange Products Liability Litigation, Dow Corning v. Stephenson, on appeal to the Supreme Court in its 2002-03 docket. In this appeal, the Supreme Court is confronted with the important question whether absent class members in the 1985 Agent Orange class settlement, many years later, may collaterally attack that settlement on the grounds of lack of adequate class representation.

The Supreme Court is presented with two issues in this appeal arising out of the Agent Orange class action settlement. The Court must determine whether absent class members are precluded from (or are permitted to) collaterally attack the adequacy of representation in a class action settlement, especially where both the trial court and appellate courts had determined that adequacy on numerous prior occasions. In addition, if such a collateral attack is permissible, then the second issue the Court must determine is whether “adequacy of representation” is properly determined by standards prevailing at the time of the original judicial assessment, or may be re-evaluated through the lens of subsequently developed law.

The Dow Chemical and Monsanto Chemical Companies, as well as other defendants in the original Agent Orange litigation, have pursued this appeal to the Supreme Court in order to preserve their class action settlement of Agent Orange claims negotiated, approved, and implemented more than fifteen years ago.

This Supreme Court appeal in the continuing Agent Orange litigation raises fundamental questions about the res judicata effects of class action judgments, measured against the due process rights of absent class members. The Court will have to consider two different universes of due process claims: one set of due process claims by the Agent Orange manufacturers, as against a different set of due process claims by the objecting Viet Nam veterans. The Court will have to assess the competing interests of the preclusion theory versus the due process rights of absent class members to a fair adjudication of their rights. The petitioners ─ the Agent Orange manufacturers ─ essentially are asking the Supreme Court to uphold the sanctity of a bargain they and the plaintiffs negotiated a long time ago. They urge the court to uphold the Agent Orange settlement that was crafted, approved, and implemented more than fifteen years ago. The Agent Orange manufacturers argue that the parties aggressively and fairly negotiated the settlement, and that it was subject to judicial scrutiny several times over. The manufacturers argue that the parties and objectors challenged the adequacy of the class representation several times, and in every instance the trial and appellate courts considered these arguments, but nonetheless approved and upheld the settlement.

On the other hand, the objecting Viet Nam veterans argue that they should not be barred from bringing their own claims for injuries manifested only after the class settlement date, because to give preclusive effect to the Agent Orange settlement would deny them their due process rights because the future claimants were not adequately represented in the original settlement. They argue that preclusion doctrine should never operate to bar a collateral attack against the adequacy of class representation, and argue that recent federal appellate decisions support the right of such collateral attack.

The appeal is further complicated by years of intervening, developing class action jurisprudence. In the late 1990s, the Supreme Court decided two landmark cases involving global asbestos settlement classes. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). In both cases, the Court expansively discussed fundamental class action principles, including the requirements for adequate representation.

The Court’s decision in In Re Agent Orange will be highly significant for all class action trial or settlement judgments. The Court’s decision will have particular valence for class action settlements, which is the most prevalent method for resolving class action litigation. Fundamentally, the Court will have to determine the scope and effect of res judicata principles as they apply to class action settlements, and the permissible extent to which such settlements may be challenged through subsequent collateral attacks. The Court has before it an interesting and compelling battle of competing fairness concerns.

The Court will have to sort out two countervailing policy concerns, both grounded in due process considerations. The first set of policy concerns undergird the doctrines of res judicata: namely, that there be finality to judgments. Particularly for class action defendants, the sanctity of res judicata principles and the binding effect of class action judgments is a paramount consideration in negotiating and concluding class litigation. Defendants desire an end to litigation and the finality of judgments; the binding effect of class judgments is a due process protection for both plaintiffs and defendants. Defendants cannot achieve this goal if class action settlements are open-ended and vulnerable to collateral attack, years and years after courts have approved and implemented a class action settlement. For the Agent Orange manufacturers, fairness compels an end to this litigation years after the Agent Orange settlement was negotiated, approved, and implemented, and terminated. The amicus briefs in support of the Petitioners urge the Court to contemplate the sweeping effect that an adverse decision might have on the sanctity of all future class settlements. The second universe of policy concerns centers on the due process rights of absent class members. The essence and utility of class action litigation is that it is representational litigation, permitting the aggregation of the hundreds or thousands of similar claims. However, courts have repeatedly stressed that the efficiency of class litigation must not sacrifice the rights of absent class members to have their claims resolved in a fair manner, for which adequate representation is a fundamental predicate.

Keywords: class action settlements, Rule 23, adequacy of representation, agent orange settlement, Judge Jack Weinstein, res judicata, collateral estoppel, Dow Chemical, In re Agent Orange Prods, liab. litigation, Dow Corning v. Stephenson

Suggested Citation

Mullenix, Linda S., Apocalypse Forever: Revisiting the Adequacy of the Agent Orange Settlement, Twenty-Five Years Later (February 21, 2003). Preview of Supreme Court Cases, Vol. 5, pp. 274, February 21, 2003, U of Texas Law, Public Law Research Paper No. 340, Available at SSRN: https://ssrn.com/abstract=2218495

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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