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and adequately protect the interests of the class” as required by Rule 23. The Court noted that “named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses.” According to the Court, “the critical goal” of “generous immediate payments” for the currently injured “tugs against the interest of the exposure-only plaintiffs in ensuring an ample, in›ation-protected fund for the future.”107 These issues are present in any global settlement seeking to settle the claims of both current and future victims of product-caused diseases. The Court also rejected the parties’ argument that these requirements should be applied less rigorously in the case of settlement-only class actions. Two years later, in Ortiz v. Fibreboard Corp.,108 the Supreme Court rejected another attempt to use class action certi‹cation to achieve a global settlement, albeit one limited to a single manufacturer. The case arose in the federal District Court for the Eastern District of Texas, the same court where Clarence Borel’s widow had prevailed many years earlier. The Fibreboard Corporation found itself squeezed between the thousands of new asbestos-related claims ‹led against it each year and coverage disputes with its insurers. In 1993, Fibreboard and its principal insurer, Continental, agreed to settle the forty-‹ve thousand pending claims against Fibreboard in a global settlement that also settled all future claims for $1.535 billion, with Continental and one other insurer providing almost all the funds. Under the proposed agreement, claimants would seek compensation from a trust funded with these proceeds, and their rights to sue in court would be extremely limited. As agreed to by the parties, a class action was ‹led on behalf of future claimants, those who had been exposed to Fibreboard’s products containing asbestos but had not yet brought suit or settled claims. Amchem appeared to have made it impossible to certify such a class under Rule 23(b)(3) of the Federal Rules of Civil Procedure, requiring that common issues predominate over individual issues, so counsel sought to certify the exposure -only plaintiffs as a class under a different subsection of the rule, Rule 23(b)(1)(B), which allowed class action treatment if plaintiffs’ separate actions would risk “adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests” of other victims or “would substantially impair or impede their ability to protect their interests.”109 Fibreboard argued that the coverage available from its insurers and its own very modest contribution of ‹ve hundred thousand dollars to the settlement together constituted a “limited fund.”110 It asserted that the full payment of earlier claims of asbestos victims would 74 suing the tobacco and lead pigment industries mean that funds would not be available to pay victims who ‹led later, and therefore the situation ‹t within the requirements of the Rule 23 subsection . The Supreme Court rejected this argument, noting that the advisory committee that originally recommended the text of Rule 23 had not contemplated that a mandatory class action could “be used to aggregate unliquidated tort claims on a limited fund rationale.”111 In Fibreboard’s situation , it was not clear that all the funds that could have been made available would have been inadequate “to pay all the claims.”112 Further, all available funds must “be devoted to the overwhelming claims.” The members of the class must be given “the best deal”; the defendant should not get “a better deal than seriatim litigation would have produced.”113 As it had stated earlier in Amchem, the Court reiterated that the trial court must scrupulously follow the class certi‹cation rules even if it also was to assess the fairness of the eventual settlement. Despite its rejection of a “limited fund” class certi‹cation under the facts of Ortiz, the Supreme Court left open the possibility that it might approve a limited fund plan in another mass products tort action.114 A decade later, however, there is little evidence that class actions brought by victims of product-related diseases against manufacturers have reemerged as a major factor in compensating such victims or in punishing culpable manufacturers . Notably, in In re Simon II Litigation, federal district court judge Jack B. Weinstein had certi‹ed a nationwide class of smokers against tobacco companies alleging fraudulent denial and concealment of the health risks posed by smoking and seeking only punitive damages, therefore arguably avoiding many of...

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