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In re Agent Orange Product Liability Litigation MDL No. 381

decided: April 21, 1987.

IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION MDL NO. 381


Appeal from an order of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, in Multidistrict Litigation No. 381, establishing a plan for distribution of the settlement fund in the Agent Orange class action litigation. Affirmed in part, reversed in part, and remanded. Petition for writ of mandamus or prohibition seeking removal of the Plaintiffs' Management Committee as class counsel. Denied.

Author: Winter

Before: VAN GRAAFEILAND, WINTER, and MINER, Circuit Judges.

WINTER, Circuit Judge:

This opinion addresses challenges by the Plaintiffs' Management Committee ("PMC") and by certain plaintiffs represented by Victor Yannacone to Chief Judge Weinstein's adoption of a plan for the distribution of the fund established as a result of the class settlement with the defendant chemical companies. See In re "agent Orange" Product Liability Litigation, 611 F. Supp. 1396 (E.D.N.Y. 1985) ("Distribution Opinion"). Because no party to this litigation is adverse to the PMC, we requested that Special Master Kenneth Feinberg defend the district court's distribution order essentially in the role of an amicus curiae. A detailed discussion of the development and selection of the distribution plan appears in the first of this series of opinions, familiarity with which is assumed.

Certain plaintiffs represented by Mr. Yannacone have also filed a petition for writ of mandamus or prohibition to have the PMC removed as class counsel. That issue is also addressed herein.

1. The timeliness of the Pending Appeals

A party seeking to appeal a final decision of a district court in any case where, as here, the United States is a party must file a notice of appeal within 60 days after entry of the decision. Fed. R. App. P 4(a)(1). The notice of appeal filed by Mr. Yannacone is concededly untimely. That appeal is therefore dismissed.

The Special Master argues that the PMC's pending appeal is also untimely because it was noticed on August 19, 1986, more than 60 days after the distribution plan was adopted on May 28, 1985. However, important aspects of the distribution plan remained to be decided as of the earlier date, including, for example, the means of compensating veterans from Australia and New Zealand, 611 F. Sup. at 1443-45; the criteria for establishing a claimant's exposure to Agent Orange, id. at 1417; and the entities that were to implement and administer the individual payment program, id. at 1427. Moreover, Chief Judge Weinstein apparently did not view the entire distribution plan as final until July 31, 1986, when he entered an order pursuant to Fed. R. Civ. P. 54(b) designed to "constitute a final judgment upon this Court's Distribution Opinion of May 28, 1985."

We do not believe that appellants were faced with the choice of appealing from the May 28 order or not at all. Whether that order was appealable is of great doubt. It was not a collateral order that "did not make any step toward final disposition of the merits of the case and will not be merged in final judgment," Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). Unlike such a collateral order, the May 28 order could be effectively reviewed as part of the final judgment. Id. See also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171-72, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974).

Even if the May 28 order was appealable under Cohen, there is still no reason to bar an appeal from the July 31 order, which was clearly intended by the district court to be final. See 15 C. Wright, A. Miller & E. Cooper , Federal Practice & Procedure ยง 3909, at 452 n. 38 (1976) ("There is often little reason to deny review on appeal from a clearly final judgment on the theory . . . that an earlier order that did not terminate the entire proceeding was nonetheless so final as the have been appealable. Doctrines designed to facilitate intermediate appeals to avoid hardship often do not serve any corresponding interest in protecting opposing parties and the courts against delayed appeals."). Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 94 L. Ed. 299, 70 S. Ct. 322 (1950), is a rare case in which the Supreme court dismissed an appeal on the ground that it should have been filed prior to the entry of final judgment. the instant case is distinguishable from Dickinson in at least two respects, however. First, the order that would have been appealable in Dickinson dismissed all claims raised by the appellant. The Court thus noted that the appellant's interests "could not possibly have been affected" by any action that remained to be taken by the district court. Id. at 515. In contrast, the plaintiffs here continued to have an active interest in the litigation after the May 28 decision. Second, the Court recognized in Dickinson that the case had arisen before the adoption of Rule 54(b), a provision with the "obvious purpose" of "reducing as far as possible the uncertainty and the hazard assumed by a litigant who either does or does not appeal from a judgment of the character we have here." Id. at 512. The Court therefore expressly refused to "try to lay down rules to embrace any case but this." Id.

Accordingly, we conclude that the PMC's appeal from the district court's distribution play was timely filed. We therefore need not consider the PMC's petition for a writ of mandamus, which raises the same issues.

2. General Principles

District courts enjoy "broad supervisory powers over the administration of class-action settlements to allocate the proceeds among the claiming class members . . . equitably." Beecher v. Able, 575 F.2d 1010, 1016 (2d Cir. 1978). In reviewing allocations of class settlements, therefore, we will disturb the scheme adopted by the district court only upon a showing of an abuse of discretion.

In the present case, a relatively modest settlement fund must be allocated equitably among a large and diverse group of claimants. There are 240,000 claimants dispersed throughout the United States, Australia, and New Zealand. They suffer from an immense variety of ailments and have different medical and financial needs. Having pursued a number of often inconsistent goals in this litigation, they are as sharply divided over the distribution of the settlement fund as they are over its adequacy. the PMC seeks what it regards as a conventional scheme for "tort-based" recovery by individuals; Mr. Yannacone's clients want the fund devoted largely to establishing a foundation; the district court ...


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