Complex Litigation--Revisiting Agent Orange

Abstract

Commentary and analysis of the oral arguments before the Supreme Court in In re Agent Orange Prod. Liab. Litig. on appeal from the Second Circuit in Dow Chemical Co. v. Stephenson. The underlying litigation presented an attack against the Agent Orange settlement, finalized in the Eastern District of New York in 1984 and approved by the Second Circuit in 1986. The issue before the Court concerned whether absent class members who had failed to opt-out of the Agent Orange class action settlement nearly twenty years before – claiming that they had not received notice – could subsequently collaterally attack the settlement as not fair, adequate, and reasonable. The supervising federal Judge Jack Weinstein had rejected the Vietnam veterans’ subsequent collateral attack, but the Second Circuit reversed and held that due process permitted the subsequent collateral attack against the Agent Orange settlement. The Second Circuit concluded that the veteran’s challenges to the Agent Orange settlement needed to be determined by the Court’s landmark rulings in Amchem Prods. Inc. v. Windsor (1997) and Ortiz v. Fibreboard Corp. (1999). The appellees revisited these arguments on appeal to the Supreme Court, arguing that the Court’s articulation of due process requirements for settlement classes had been heightened in these two decisions. The Court will revisit the possibility of subsequent collateral attack in the context of its decisions in Hansberry v. Lee, 311 U.S. 32 (1940) and Phillips Petroleum Co. v. Shutts, 472 U.S. 7979 (1985).