The agenda-setter for complex litigation.

• Author: Marcus, Richard L.
• Position: Tribute to Judge Edward R. Becker, Third Circuit Court of Appeals

I am honored to be allowed to contribute to this collection in recognition of Chief Judge Edward Becker, who has long been at the forefront in developing sensible ways for addressing a variety of issues that lie at the heart of handling modern complex litigation. As I reflected on Judge Becker's contributions to this area on which I have focused my professional career,(1) it struck me that the right theme for this essay would be the judge's role as an agenda-setter. For me, he first set that agenda nearly twenty years ago when I was working on my first civil procedure article,(2) and he has kept doing so ever since.

In political circles, it is widely appreciated that setting the agenda is a way to control the outcome of the game. Stalin, for instance, was able to achieve power in the early Soviet Union in significant measure because as General Secretary he controlled the agenda for the Politburo.(3) But judges do not get to set their own agendas; it is one of the hallmarks of Anglo-American judges that they take what comes to them by the luck of the draw. Others--mainly the litigants--set the agenda for judges.(4) So judges cannot control the game in the same way.

Despite these institutional constraints, Judge Becker has set the complex litigation agenda for decades. In part, it is because he set the agenda in other capacities than as a sitting judge. For example, he was a catalyst behind the creation of the Advisory Committee on Evidence Rules.(5) In part, it is because the Judiciary has called on him to serve as an agenda-setter as a member of its Long Range Planning Committee. In part, it is because his incredible energy allows him to reach out to the practicing bar and academic communities along with carrying out his many judicial duties.(6)

Yet deciding cases has been Judge Becker's greatest contribution to the evolution of what he has called "our contemporary complex-litigation laden legal system."(7) To some extent, this may be because the judge "benefited" from sitting on courts that had more than their share of such cases, and he had the "luck of the draw" to be assigned these cases, but the critical thing is not that he was assigned the cases, but what he did with them. Other contributions to this issue explore equally important aspects of the judge's work; for me, the sensible approach is to identify and illuminate briefly a few of the complex litigation subjects that have benefited from Judge Becker's careful and thorough attention to the issues raised by the cases he has handled.

1. SETTLEMENT CLASSES

   Class actions have been one of the main ingredients of complex litigation since Judge Becker became a judge shortly after the 1966 amendments to Rule 23 expanded its application. In the 1980s, the battle largely focused on mass tort class actions, but by the 1990s it had shifted focus to the settlement class action. The Super Bowl on that subject was Georgine v. Amchem Products, Inc., in which the judge introduced his opinion suitably: "Every decade presents a few great cases that force the judicial system to choose between forging a solution to a major social problem on the one hand and preserving its institutional values on the other. This is such a case."(8) In that decision, Judge Becker set the agenda for the Supreme Court's later handling of the case, and therefore also for the rest of us as we grapple with the tensions presented by settlement class actions, even though it seems that the Court rejected his central conclusion about how Rule 23 should apply.

   The background for this tension was the increasing realization of defendants in the early 1990s that, by settling a class action, they might work magical changes in their exposure. In place of indeterminate exposure to future litigation, they could substitute a fixed obligation set forth in the settlement. The main obstacle to making this approach work was whether the case could be certified as a class action, and so the question whether reaching a settlement could ease the path to class certification became critical.

   From the outset, the framers of the 1966 amendments knew that class actions, like other cases, would be settled. But it is not clear that they thought about whether settlements could facilitate the use of the class action device. Creative lawyers and judges could see the potential synergy, however, and the settlement class action was born. Getting a case certified for litigation purposes was often difficult and hotly contested. Getting a case certified for discussion of possible settlement--or to give effect to a settlement already negotiated--avoided the contentious class certification difficulties.

   The settlement class action presents significant risks as well, however, for the lawyer who represents the class can only settle, not litigate, and the other side might shop for a pliant lawyer to arrange an inadequate settlement. Rule 23(e) does require that the court must approve a settlement as fair before the class is bound, but there are serious doubts about the ability of a judge to evaluate a settlement that is supported vigorously by both sides. So the certification criteria could serve as an important check on the power of the court to implement seemingly benign arrangements endorsed by advocates for both sides.(9)

   There was thus early reluctance about allowing settlement classes.(10) But practical considerations pointed the other way. As Judge Becker recognized in 1995 in G.M. Trucks, "increased use of settlement classes has proven extremely valuable for disposing of major and complex class actions in a number of substantive areas."(11) Nonetheless, he emphasized in that case that "the inquiry into the settlement's fairness cannot conceptually replace the inquiry into the propriety of class certification."(12) Accordingly, the court held that the fact of settlement could not ease the way to class certification.(13)

   Of course, the G.M. Trucks decision did not forbid settlement classes altogether, but it came rather close. It is somewhat difficult to understand why plaintiffs would prefer settlement class certification if that could only be had in circumstances that would warrant certifying a litigation class. Why not insist on full certification, with the concomitant threat of full litigation should settlement not occur? So some lawyers might have thought that they could only use the settlement class on occasions when they would not want it.

   In any event, G.M. Trucks set the scene for Georgine, perhaps the most aggressive and creative use of the settlement class action yet imagined. Appreciating how the judge set the agenda for the Supreme Court requires some description of the case. Under this elaborate settlement agreement, negotiated before the suit was even filed, everyone exposed to asbestos in the workplace who had not yet filed a suit (perhaps millions of people) would be subject to an administrative scheme providing scheduled benefits instead of being allowed to pursue claims in court. The schedule would accommodate those who were already sick, and those who were healthy but became sick years or decades later. By this method, the stupendous litigation expenditures that characterized asbestos litigation could be minimized, claimants would face less delay and a less chancy set of prospects for recovery, and the risk that those who sued for minor injuries might later find themselves precluded from asserting further claims if their conditions worsened would be eliminated. All in all, this settlement was a remarkable accomplishment, albeit more legislative than litigative in general feel.

   But this huge class consisted of people with vastly different work histories and medical conditions making claims under the law of many different states. As a consequence, nobody suggested that the class could be certified for purposes of litigation. The key to its success would have to be relaxed standards for certification that emphasized the fact of the settlement to justify class action treatment where it would otherwise be unavailable.

   Many objectors vigorously opposed the settlement, but the district court approved it. On appeal, Professor Laurence Tribe, representing the objectors, raised a host of constitutional arguments about whether a "suit" on behalf of people who were not sick yet satisfied case and controversy requirements or standing limitations. Judge Becker passed those issues by, preferring to decide the case on the basis that "[s]trict application"(14) of Rule 23 was required by G.M. Trucks. Although proponents of the settlement urged that at least the manageability requirements of Rule 23(b)(3) could be overlooked in the settlement context, the court disagreed. The case could never be managed to permit a combined trial, the judge explained. As the judge had recognized in G.M. Trucks, "if any difference is warranted, pre-certification settlement may raise the adequacy of representation standard."(15) In Georgine, he pointed out that there were serious intra-class conflicts resulting from the settlement's decisions about how to allocate settlement proceeds among people with different medical conditions, and an unavoidable conflict between those who were already sick and others who were not currently ill but might become sick in the future.(16) To deal with these differences, the judge insisted that there be "structural protections to assure that differently situated plaintiffs negotiate for their own unique interests."(17)

   Judge Becker's Georgine decision was agenda-setting in more than one way. Anticipating that this decision could have repercussions, the judge suggested that the Advisory Committee on Civil Rules consider whether to amend Rule 23 "to provide that settlement classes need not meet the requirements of litigation classes."(18) Exactly such a proposal for amendment was formally circulated later that year.(19) Thus, he might be said to have set part of the agenda for the rules committee.

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