## Facts

- Vietnam War veterans and certain family members alleged injuries (including cancers and birth defects) from exposure to Agent Orange, a military herbicide alleged to contain toxic dioxin.
- Hundreds of federal cases were centralized as multidistrict litigation in the Eastern District of New York before Chief Judge Jack B. Weinstein, involving roughly 240,000 potential claimants.
- Seven chemical manufacturers that produced Agent Orange for the United States were sued for damages under product-liability theories.
- On the eve of trial, class counsel and defendants negotiated a $180 million settlement creating a fund for eligible veterans and certain family members.
- The district court certified a nationwide damages class under Federal Rule of Civil Procedure 23(b)(3), approved the settlement under Rule 23(e), implemented a notice and opt-out program, and entered related administration and fee orders.
- Objecting class members appealed, challenging class certification, notice, the settlement’s adequacy, and the binding effect of the judgment on absent and future claimants.

## Issues

1. Whether a nationwide Rule 23(b)(3) class for damages was properly certified in a mass-tort exposure case.
2. Whether the district court could bind absent class members (including those lacking forum contacts) consistent with due process.
3. Whether the notice and opt-out procedures satisfied Rule 23 and constitutional due process.
4. Whether the $180 million settlement was “fair, reasonable, and adequate” under Rule 23(e).
5. Whether the settlement could preclude later suits by class members, including claimants who did not appear or who asserted future injuries.

## Decision

- The Second Circuit largely affirmed the district court’s certification, settlement approval, and implementing orders.
- The court held that due process was satisfied for absent class members where notice, an opportunity to opt out, and adequate representation were provided.
- The court upheld the notice program as reasonably calculated to inform class members and permit objections or exclusion, despite inevitable imperfections in a dispersed claimant population.
- The court affirmed the settlement as within the permissible range of reasonableness, emphasizing the litigation risks and uncertainty of proving causation and damages.
- The court sustained the settlement’s binding and preclusive effect on class members falling within the certified class definition, including many who later sought to sue.

## Legal Principles

- A Rule 23(b)(3) class judgment may bind absent members consistent with due process when class members receive constitutionally adequate notice, a meaningful opt-out opportunity, and adequate representation.
- In assessing settlement notice, due process requires notice reasonably calculated under the circumstances to apprise interested persons and provide an opportunity to object or opt out; actual notice to every member is not required.
- Approval under Rule 23(e) turns on whether the settlement is fair, reasonable, and adequate in light of factors such as litigation complexity, delay and expense, the stage of proceedings, the reaction of the class, and the risks of establishing liability and damages.
- In mass-tort settings, substantial uncertainty in scientific proof of causation is a proper consideration in evaluating litigation risk and the reasonableness of a global settlement.
- A final class-action settlement may preclude later claims by class members within the class definition when Rule 23 and due-process protections are satisfied.

## Conclusion

The Second Circuit upheld a nationwide mass-tort class settlement over due-process and fairness objections, holding that Rule 23’s protections—adequate notice, opt-out rights, and adequate representation—permitted binding absent class members and approving the settlement as a reasonable resolution given high causation and liability risks.


In re \"Agent Orange\" Prod. Liab. Litig., 818 F.2d 145 (2d Cir. 1987)