Third Circuit disposition — 03-2025

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-2025, 03-2063 and 03-2072
IN RE: DIET DRUGS
(PHENTERMINE/FENFLURAMINE/
DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION
FLEMING & ASSOCIATES, LLP,
on behalf of its clients subject to the
Sixth Amendment to the Nationwide
Class Action Settlement Agreement with
American Home Products Corporation,
Appellant in No. 03-2025
JOEL ZUCKERBERG,
Appellant in No. 03-2063
HARITON & D’ANGELO, LLP and
NAPOLI, KAISER, BERN &
ASSOCIATES, LLP, on behalf of
themselves and their clients who are
specifically identified in and/or whose
claims are affected by Pretrial Order No.
2778,
Appellants in No. 03-2072
_______________
On Appeal from the United States
District Court
for the Eastern District of Pennsylvania
Civil Action No. 99-20593
MDL No. 1203
District Court Judge: The Honorable
Harvey Bartle, III
Argued on December 10, 2003
Before: AMBRO, FUENTES and
CHERTOFF, Circuit Judges
(Filed October 5, 2004)
George M. Fleming
Sylvia Davidow
Rand P. Nolen
Fleming & Associates, LLP
1330 Post Oak Blvd., Suite 3030
Houston, TX 77056
Jonathan Massey (argued)
Jonathan Massey, P.C.
3920 Northampton Street N.W.
Washington, DC 20015
Mike O’Brien
Mike O’Brien, P.C.
1330 Post Oak Blvd., Suite 2960
Houston, TX 77056
Attorneys for Appellant
Fleming & Associates, LLP
N. Albert Bacharach, Jr.
115 Northeast 6th Avenue
Gainesville, FL 32601-3416
Attorney for Appellant
Joel Zuckerberg

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Paul J. Napoli
Denise A. Rubin
W. Steven Berman
Napoli, Kaiser, Bern & Associates
3500 Sunrise Highway, Suite T207
Great River, NY 11739
Mario D’Angelo
Hariton & D’Angelo
3500 Sunrise Highway, Suite T207
Great River, NY 11739
Attorneys for Appellants
Napoli, Kaiser, Bern & Associates, LLP
and Hariton & D’Angelo, LLP
Peter L. Zimroth
Arnold & Porter
399 Park Avenue
New York, NY 10022
Robert D. Rosenbaum (argued)
Sarah M. Brackney
Arnold & Porter
555 Twelfth Street
Washington, DC 20004
Arnold Levin
Michael D. Fishbein (argued)
Fred S. Longer
Arnold & Levin
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Charles R. Parker
John Roberson
Hill & Parker
5300 Memorial Drive, Suite 700
Houston, TX 77077
Attorneys for Appellees
American Home Products Corporation
(a.k.a Wyeth), Plaintiffs’ Class and Class
Counsel
OPINION OF THE COURT
FUENTES, Circuit Judge:
This appeal arises from the multi-
district litigation (MDL) 1203 diet drug
product liability litigation. The appeal
concerns the validity of an amendment (the
“Sixth Amendment”) to the Nationwide
Class Action Settlement Agreement (the
“Settlement A greem ent”) e xecu ted
between Appellants and American Home
Products Corporation (a.k.a. “Wyeth”)1 in
relation to the diet drugs litigation. The
Sixth Amendment was approved by the
District Court in Pretrial Order (“PTO”)
No. 2778. The Amendment gives
claimants who would otherwise have been
bound by the Settlement Agreement the
right to opt out of the Agreement and
proceed with tort litigation against Wyeth
in the event that the fund established to
pay claims und er the S ettlement
Agreement (i.e., the “Settlement Trust”)
becomes insolvent. Under the Sixth
1 American Home Products changed its
name to Wyeth in March 2002. We use
the name Wyeth.

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Amendment, claimants’ rights to sue
Wyeth are subject to certain restrictions.
Because of these restrictions, Appellants
here argue that the District Court should
not have approved the Sixth Amendment
as fair, adequate and reasonable.
Appellants further argue that they were
deprived of due process in that they (1) did
not receive adequate notice of the risk of
Trust insolvency when they opted to be
bound by the Settlement Agreement and
( 2 ) d i d n o t re c e i v e a d eq u a t e
representation.
Because we believe that the Sixth
Amendment provides class members with
additional rights that did not exist under
the original Settlement Agreement
(specifically, the right to sue W yeth, albeit
subject to certain conditions) we will
affirm the District Court’s approval of the
Amendment as fair, adequate and
reasonable. We reject the due process
notice and adequate representation
arguments, because those arguments relate
to the original Settlement Agreement, the
validity of which is not properly before
this Court, and have been previously and
finally heard and rejected by this Court.
Accordingly, we hold the Sixth
Amendment to the Settlement Agreement
to be valid.
I. FACTUAL BACKGROUND AND
PROCEDURAL HISTORY
Prior to 1997, Wyeth sold two
prescription drugs for the treatment of
o b e s i t y , f e n f l u r a m i n e a n d
dexfenfluramine, marketed as “Pondimin”
and “Redux.” In September 1997, the U.S.
Food and Drug Administration (FDA)
issued a press release reporting abnormal
echocardiograms in a “higher than
expected percentage of” patients taking the
drugs. See Press Release, FDA, FDA
Announces Withdrawal of Fenfluramine
and Dexfenfluramine (Fen-Phen) (Sept.
15, 1997). Subsequent studies suggested
that the drugs may have been linked to
serious cardiopulmonary side effects,
including heart-valve regurgitation (the
reverse flow of blood through a closed
valve of the heart).
After the withdrawal of the diet drugs,
18,000 individual suits and 100 class
actions were filed in state and federal
courts. In December 1997, the federal
cases were consolidated for pretrial
purposes in the Eastern District of
Pennsylvania pursuant to MDL 1203. In
November 1999, Wyeth entered into a
Nationwide Class Action Settlement
Agreement with users of the diet drugs in
the United States. After conducting
fairness proceedings, the District Court in
the Eastern District of Pennsylvania
certified a settlement class and approved
the Settlement Agreement, finding it “fair,
reasonable and adequate.” See PTO 1415.
The Settlement Agreement became final
upon exhaustion of all appeals. The
Settlement Agreement established the
Settlement Trust to administer Wyeth’s
obligations to class members who agreed
to participate in the Settlement.
Diet drug users who wished to opt out of
the Settlement Agreement could do so by
filing an “Initial Opt Out” form by March
30, 2000. Putative class members were
informed of the right to opt out through

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“an elaborate and extensive plan of
notice,” which included weeks of
television, print, and internet advertising,
patient notification materials provided
through pharmacists and prescribing
doctors, a toll-free number, and a detailed
“notice package” sent to all possible class
members whose names and addresses were
known or who called the toll-free number.
PTO 1415. Persons who timely exercised
initial opt out rights were free to pursue
any and all claims against Wyeth. Those
who did not remained members of the
class and agreed to be bound by the
conditions and benefits of the Settlement
Agreement. Upon approving the
Settlement Agreement, the District Court
entered PTO 1415, which expressly “bars
and enjoins” all class members “from
asserting, and/or continuing to prosecute”
any settled claim against Wyeth.2
The S et tl em e n t A g r ee m ent
contained an exception to this bar,
permitting class members who met
specific physical requirements (diagnosed
as having a severity of heart-valve
regurgitation defined as “FDA Positive”)
to pursue “Intermediate Opt Out” rights.
These rights allowed class members to opt
out of the Settlement at a date beyond the
Initial Opt Out period (without Wyeth
asserting statute of limitations defenses)
and to pursue claims against Wyeth subject
to certain limitations. These limitations
included a prohibition against “seek[ing]
punitive, exemplary, or any multiple
damages.” App. at 85-86.
Diet drug users who currently suffer
from severe heart-valve regurgitation or
from moderate reg urgitatio n w ith
complicating features, or who have less
severe heart-valve conditions that progress
to the more serious levels in the fifteen
years following execution of the
Settlement Agreement, may claim and
recover com pens ation u nder the
Settlement. The amount of their recovery
is determined by damage “Matrices” that
assess factors such as severity and length
of illness to calculate the damage award.3
Alternatively, class members with
conditions that would allow them to
qualify for these “Matrix” benefits (and
who fulfill other eligibility requirements
set out in the Agreement) may exercise
“Back-End Opt Out” rights and pursue tort
claims against Wyeth, so long as they have
not already made a claim for compensation
under the Settlement Agreement. Once a
class member discovers that his heart-
valve condition is serious enough to
qualify him for Matrix-level benefits, the
class member must make an election as to
2 PTO 1415 further provides for the
settlement court to retain “continuing and
exclusive jurisdiction . . . to administer,
supervise, interpret and enforce the
Settlement in accordance with its terms.”
3 Class members may receive payment
based on one level of disease and “step
up” to additional Matrix compensation if
they exhibit a Matrix-level injury by year
2015 and their heart-valve conditions
increase in severity to a higher level before
they reach the age of 80.

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which option to pursue. The Settlement
Agreement specifically provides that “[a]
Class Member may not exercise a Back-
End Opt Out right after claiming any
Matrix Compensation Benefits.” App. at
575. As with the Intermediate Opt Out,
class members exercising Back-End Opt
Out rights will not be blocked by statute of
limitations defenses, but are restricted
from asserting punitive, exemplary, or
multiple damages.
Thus, according to the system set
out in the Settlement Agreement, any diet
drug users who fail to exercise Initial,
Intermediate, or Back-End Opt Out rights
are bound by the terms of the Settlement
Agreement and its bar against attempting
to pursue any claims against Wyeth. For
those who remain in the Settlement, a
claim for Matrix benefits is made by
submitting a three-part “Green Form” to
the Settlement Trust. Wyeth funds
payment of Matrix benefits through
deposits into the Trust. Under the
Settlement Agreement, Wyeth’s funding
obligation is limited to $3.75 billion, plus
any increase in value of the principal of
the Trust. The fact of this limit was made
known to class members through the class
notice. During the fairness hearing before
the District Court, experts testified as to
their conclusion that, after considering
e x t e n s iv e e p i d e m i o l o g i c a l a n d
demographic evidence, $3.75 billion was
more than sufficient to pay all Matrix
claims anticipated under the Settlement.
Based on this evidence, to which none of
the parties objected, the District Court
found the funds sufficient to satisfy all
likely claims.
However, after approval of the
Settlement Agreement, the Trust was
inundated with Green Form claims for
Matrix benefits in a volume not anticipated
by the experts who testified at the fairness
hearing. As the District Court determined,
a significant proportion of the filings came
from a few law firms that represented large
numbers of claimants. The District Court
also observed that, in conducting their
claims process, these firms carried out
mass screening programs in which
cardiologists retained by the firms “made
unreasonable judgments on a broad scale”
concerning the existence, history, nature,
and degree of heart-valve disease claimed.
PTO 2640. The claims process was
further frustrated by the fact that several of
the Green Forms submitted were
incomplete, which made it impossible for
Trust administrators to assess eligibility
for the particular Matrix benefit claimed.
To ameliorate the situation, the District
Court ordered that all claims for M atrix
benefits be subjected to audit.
Despite this effort, the risk
remained that the number of claims would
exhaust the Trust’s available funds.
Additionally, the remedy intended under
the Settlement Agreement to address the
problem of insufficient Matrix funds, the
Back-End Opt Out, was not available to
class members who had already filed
claims for Matrix benefits. Therefore, in
response to the potential risk of Trust
insolvency, Wyeth and Class Counsel
executed a proposed Sixth Amendment to
the Settlement Agreement, which would

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create a new opt out right for class
members who claimed Matrix benefits by
May 3, 2003, and were found medically
eligible for these benefits, but would
otherwise go without payment under the
original Settlement Agreement in the event
of funding insufficiency.4 Under the Sixth
Amendment Opt Out right, claimants may
pursue a tort action but may not name any
defendant other than Wyeth, may not join
any other plaintiff (other than a derivative
plaintiff), and may not consolidate their
action with any other.5 The Sixth
Amendment Opt Out right is also subject
to the same restrictions placed on the
Intermediate and Back-End Opt Out in that
persons exercising this opt out may not
pursue punitive, exemplary, or multiple
damages. In addition to the opt out
provision, the Sixth Amendment also sets
forth criteria for the required level of
completedness of the three-part Green
Form submitted for Matrix benefits.6 By
extension, this provision allows the Trust
to determine whether a class member is
qualified to exercise a Sixth Amendment
Opt Out.
After conducting an approval
hearing, the District Court issued PTO
2778, finding the Sixth Amendment fair,
reasonable and adequate. However,
Ap pellan ts argue that the Sixth
Amendment deprives them of their full
litigation rights by imposing new
restrictions on their ability to pursue tort
claims against Wyeth (i.e., limiting the
defendants whom they may name and join,
and barring consolidation of actions).
Related to this argument is Appellants’
claim that the class notice pertaining to the
original Settlement Agreement was
inadequate for not specifically informing
diet drug users of the risk of Trust
insolvency and that their representation
was inadequate as a result of this risk of
insolvency. Thus, Appellants contend that
class members affected by the risk of
insolvency were denied due process and
should be permitted to opt out of the
Settlement unconditionally.
II. DISCUSSION
4 Before the District Court’s approval of
the Settlement Agreement in August 2000,
the Settlement Agreement had been
amended five times. For convenience, we
will refer to the Settlement Agreement as
it stood prior to approval of the Sixth
Amendment as the “original” settlement.
5 The option is not available to class
members who have already received a
payment of any Matrix benefit. Instead, a
residual amount of $255 million will
remain in the fund to pay claims arising
from progression of already compensated
Matrix-level diseases.
6 Thus, under the Sixth Amendment, a
claim for Matrix benefits will be deemed
filed upon the Trust’s receipt of either (1)
“Part I” of a Green Form signed by the
class member or (2) “Part II” of a Green
Form signed by a class member indicating
that he accepts entitlements to M atrix
benefits.

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A. Fairness, Adequacy and
R e a s o n a b l e n e s s o f t h e S i x th
Amendment
1. Additional Rights Provided by
the Sixth Amendment
Under Federal Rule of Civil
Procedure 23(e)(1)(A), a “court must
approve any settlement, voluntary
dismissal, or compromise of the claims,
issues, or defenses of a certified class.”
Subsection (C) states that “[t]he court may
approve a settlement, voluntary dismissal,
or compromise that would bind class
members only after a hearing and on
finding that the settlement, voluntary
dismissal, or compromise is fair,
reasonable, and adequate.” In PTO 2778,
the District Court held that this standard
for analyzing the fairness of a proposed
settlement under Rule 23(e) should also be
applied to analyze the fairness of a
proposed amendment to the settlement.
See Walsh v. Great Atl. & Pac. Tea Co.,
726 F.2d 956, 965 (3d Cir. 1983) (A court
may approve a proposed class action
settlement if it is “fair, adequate, and
reasonable” to class members.).7
Class Counsel and Wyeth argue that the
Sixth Amendment provided new rights to
class members that the original Settlement
Agreement did not contain. They stress
that, in evaluating an amendment to a class
action settlement, the court should
consider whether the amendment provides
additional benefits and protections for the
class. See, e.g., In re Sulzer Prosthesis
Liab. Litig., 2002 WL 553728, at *1 (N.D.
Ohio Mar. 14, 2002) (granting approval to
amended settlement agreement that
increased overall value of the settlement
and eliminated liens on defendants’ assets
for the benefits of opt-outs). One purpose
for which it is appropriate to approve such
an amendment is adjusting for changed
circumstances, particularly in light of the
parties’ experience in implementing the
agreement. See, e.g., In re Joint E. & S.
Dists. Asbestos Litig., 237 F. Supp. 2d
297, 300 (E.D.N.Y. 2002).
The new Sixth Amendment Opt Out right
provides class members who claim Matrix
benefits with at least some protection
against the risk that their injuries would go
uncompensated if the Settlement Trust
becomes insolvent at some future time. As
it is now, Wyeth’s financial obligations to
the settlement Trust are subject to a
specified maximum under the Settlement
Agreement. Wyeth, therefore, has no
further obligation to pay otherwise eligible
Matrix claimants once its $3.75 billion
7 This Court has not addressed the
proper standard for a District Court to
review an amendment to a settlement
agreement. Neither party argues, however,
that the District Court applied the wrong
standard.

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funding contribution is exhausted.
Appellants do not argue that any
provision of the Settlement Agreement
obligates Wyeth beyond this amount if the
Trust cannot satisfy all claims. Rather,
Appellants claim that class members did
not receive adequate notice under Rule
23(e) of the risk of Trust insolvency.
Thus, they argue from principles of
contract and equity (discussed more fully
below) that any unpaid class members
would not have received the full benefit of
their agreement under the Settlement due
to a mutual mistake of fact concerning the
Trust’s capacity to satisfy all potential
claims. Therefore, Appellants contend that
the Settlement Agreement is void and that
unpaid claimants should be released from
the agreement and permitted to sue Wyeth
without restriction.
Even if Appellants are correct in these
contract and equity arguments, the District
Court found that class members would
suffer no harm by approval of the Sixth
Amendment. The Court explained that
because Wyeth’s obligation to the class is
capped at $3.75 billion, the Amendment
provides a new benefit by providing those
Matrix claimants who would otherwise go
unpaid “with a specific contractual right to
pursue their compensatory claims against
Wyeth” by opting out of the Settlement.
App. at 10. This right was nonexistent
under the original Settlement Agreement
as eligible class members who filed Green
F o rm s claim in g M atrix be nefit s
relinquished their Back-End Opt Out rights
and, consequently, agreed to be bound by
the Settlement. On the other hand, if
Appellants are correct that exhaustion of
funds voids the Settlement Agreement and
leaves them free to pursue their tort rights
without restriction, “then Class Members
will have lost nothing by [the District
Court’s] approval of the Amendment.” Id.
Further, the Amendment provides
that, if the Trust becomes insolvent, Wyeth
has the option of paying any eligible
unpaid claims (although it would have no
contractual obligation to do so) or leaving
them unpaid, subject to the Sixth
Amendment Opt Out. This provision was
intended to give Wyeth an incentive to
fund such benefits voluntarily in order to
avoid defending tort claims by unpaid
Matrix claimants (a threat that did not exist
before the Amendment). Consolidated
Brief at 26. However, Appellants argue
that Wyeth always had a right to
voluntarily fund unpaid Matrix claims
despite the Sixth Amendment and,
therefore, that this provision of the
Amendment conferred no additional
benefit on Appellants. Appellant Brief at
25. We are not convinced by Appellants’
argument here. It is true that if Wyeth
chooses to pay a claim in the event of
funding exhaustion, then the compensated
claimant will simply have received his
bargained-for benefit under the Settlement.
However, Appellants cannot view this
provision of the Amendment in isolation.
The Amendment as a whole provides an
additional benefit to claimants through its
new opt out right in addition to the
incentive it gives Wyeth to pay claims
voluntarily. A claimant’s chance of
recovering damages is only strengthened

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by the added incentive provided by the opt
out and voluntary payment provisions of
the Sixth Amendment combined. Thus,
the Sixth Amendment provides all
claimants with additional protections
against being left empty-handed that did
not exist under the original Settlement
Agreement.
2. Restrictions on the Sixth
Amendment Opt Out Right
Appellants claim that the Sixth
Amendment unfairly and unreasonably
restricts the opt out right that it provides.
First, Appellants assert that the Sixth
Amendment Opt Out strips class members
of their rights to join plaintiffs and name
additional defendants in any lawsuit filed
against Wyeth. We are not persuaded by
this argument because, as discussed above,
the Sixth Amendment still provides class
members with an opt out right that did not
exist under the original Settlement
Agreement. The restrictions imposed
apply only to suits brought by class
members exercising the Sixth Amendment
Opt Out and, in the absence of the
Amendment, these class members would
have no right to bring an action at all
because they relinquished this right under
the Settlement Agreement when they
claimed Matrix benefits. The provision of
the Agreement barring class members who
claim Matrix benefits from subsequently
exercising a Back-End Opt Out existed
before the Sixth Amendment. See
Settlement Agreement § IV.D.4.b.
Without the Amendment, therefore, class
members would have no right to bring a
tort action against Wyeth at all if the Trust
becomes insolvent.8 The District Court
did not find sufficient reason to reject the
Amendment simply because the right to
sue under it “comes at the price of certain
restrictions and may not go so far as
[Appellants] would like.” App. at 11.
Further, the District Court stressed that the
Sixth Amendment provides more security
for a Matrix claimant than the option
proposed by Appellants because “[i]n the
event of a funding shortfall, class members
cannot be at all sure they would be able to
undo the Agreement and sue Wyeth in
tort.” App. at 11.
Ap pellants also specifically
challenge the reasonableness of the Sixth
Amendment’s restriction on joinder,
arguing from principles of civil procedure
that the plaintiff is “the master of his own
complaint” and that restrictions on joinder
deprive opt-out plaintiffs of the right to
choose their jurisdiction. Appellant Brief
at 26 (citing Holmes Group, Inc. v.
Vornado Air Circulation Sys., 535 U.S.
826, 831 (2002)). In response, Wyeth
asserts that it negotiated this restriction in
8 Class members may still have a right to
sue on a mistake of fact contract theory,
asserted by Appellants here. However, in
such a case, they would argue that the
Settlement Agreement is void, which
would render the Sixth Amendment
irrelevant in any case and, thus, have no
bearing on the issue of whether the District
Court’s approval of the Amendment was
proper.

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order to prevent fraudulent joinders by
plaintiffs attempting to block Wyeth’s
removal of state court actions to federal
court. Consolidated Brief at 31-36.
Although Appellants also cite decisions of
the District Court in our case encouraging
the policy of joining claims and parties,
Appellant Brief at 27-28, they cite no case
law suggesting that it would be
unreasonable for the parties to enter into a
contract that imposed such a joinder
restriction as a condition of a right to sue
that did not exist before (as it had been
specifically relinquished under the original
Agreement). Consolidated Brief at 37.
Again, despite the joinder restriction, the
Sixth Amendment still added new rights to
the Settlement Agreement without
depriving class members of any
preexisting rights.
B. Class Members’ Due Process
Rights: Adequacy of Notice and Class
Representation
Appellants argue that Matrix
claimants who would be left empty-handed
if the settlement funds prove to be
insufficient were deprived of their due
process rights in two instances: adequacy
of notice and adequacy of class
representation. First, Appellants claim that
class members did not receive adequate
notice of their opt out rights in accordance
with Rule 23(e). Under Subsection (B),
“[t]he court must direct notice in a
reasonable manner to all class members
who would be bound by a proposed
settlement, voluntary dismissal, or
compromise.” This notice must inform
class members of the existence of the
pending litigation and provide them with
the information “needed to decide,
intelligently, whether to stay in or opt out.”
Amchem Prods. v. Windsor, 521 U.S. 591,
628 (1997); see also Phillips Petroleum
Co. v. Shutts, 472 U.S. 797, 812 (1985)
(stating that class members must be
provided with meaningful notice and an
opportunity to exclude themselves from
the class). Appellants argue that the
District Court’s finding of adequate notice
in approving the Settlement was premised
in part on the assumption that the
Settlement funds were sufficient to pay all
claims for Matrix benefits. To have been
adequate, Appellants argue that the notice
should have informed the class that certain
members could receive no compensation if
the fund becomes insolvent. Appellant
Brief at 34-35. Appellants assert that, for
these class members “trapped inside the
settlement without their promised benefit,”
the Sixth Am endm ent’s litiga tion
restrictions amount to a deprivation of
rights without notice or opportunity for a
hearing. Id. at 35-36.
Appellants also argue that these
class members did not receive adequate
class representation, as required by Rule
23(a). Under Subsection (4), “[o]ne or
more members of a class may sue or be
sued as representative parties on behalf of
all only if . . . the representative parties
will fairly and adequately protect the
interests of the class.” Accordingly, class
members with divergent or conflicting

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interests cannot be adequately represented
by the same named plaintiffs and class
counsel. Amchem, 521 U.S. at 625-26.
Appellants cite Stephenson v. Doe
Chemical Co., a case in which the Second
C i r c u i t h e l d t h at u n a n t i ci p a t e d
developments, occurring even years after
the settlement, may render inadequate the
representation and notice afforded some
class members. 273 F.3d 249, 261 (2d Cir.
2001), aff’d in part, rev’d in part per
curiam, 539 U.S. 111 (2003). The
Stephenson Court held that no class action
orders were binding on these class
members and, therefore, upheld a
collateral attack on the class settlement.
Id. at 259. The Supreme Court’s per
curiam opinion affirmed Stephenson on an
equally divided 4-4 vote, and therefore is
not binding. Still, Appellants cite it as
persuasive authority here. They argue that
the Sixth Amendment creates two
categories of class members, each one with
divergent interests: (1) those who either
claimed benefits early enough to be
compensated or opted out of the
Settlement under the known opt out rights
in the Agreement (i.e., Initial,
Intermediate, or Back-End); and (2) those
who claimed benefits later and are now left
with the restrictive Sixth Amendment Opt
Out right. Because of these divergent
interests, Appellants argue that having a
single class counsel for both groups of
class members resulted in inadequate
representation. Appellant Brief at 39.
In short, Appellants claim that they
received inadequate notice that the Trust
could become insolvent and received
inadequate representation in light of this
potential risk, despite the fact that such a
situation has not materialized and was not
even contemplated at the time of the
Settlement. Although couched in terms of
the Sixth Amendment, in reality
Appellants’ due process challenges take
exception to the notice and adequacy of
representation involved with the original
Settlement Agreement, insofar as they are
centered around the alleged failure to
notify potential class members of the risk
of insolvency of the Trust. The District
Court here was faced with the question of
whether a proposed amendment to the
original Settlement Agreement was proper,
and it is the Court’s answer to that
question that is being appealed, not the
validity of the original settlement. For that
reason, this appeal is not the proper
vehic le to challenge the original
Settlement Agreement. That Agreement
resulted in a final order certifying the class
and approving the settlement, which was
not addressed by the District Court in this
matter. See In re Diet Drugs, 282 F.3d
220, 229 (3d Cir. 2002). To present such
a challenge, Appellants must seek relief
either under Rule 60(b)9 or through a
9 Rule 60(b) allows parties to petition for
relief from final judgments due to, among
other things, “mistake, excuse, or
excusable neglect,” “fraud . . .,
misrepresentation, or other misconduct of
an adverse party,” or if “the judgment is
void.” Fed. R. Civ. P. 60(b); see, e.g.,
Mayberry v. Maroney, 558 F.2d 1159,
1163 (3d Cir. 1977) (entertaining Rule

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collateral attack on the order approving the
Settlement.10 Moreover, this Court has
already addressed the notice and adequacy
of representation with respect to the
original Settlement Agreement and we
found the requirements of due process
satisfied. See In re Diet Drugs, 282 F.3d
at 230-31; see also Shutts, 472 U.S. at 811-
12 (setting forth “procedural due process
protection[s]” necessary in order for a
class action judgment to have binding
force on absent class members). Due
process does not require this Court to
entertain challenges to adequacy of notice
and representation every time any case
related to a class action judgment comes
up on appeal. See Epstein v. MCA, Inc.,
179 F.3d 641, 648 (9th Cir. 1999) (“Due
process requires that an absent class
member’s right to adequate representation
be protected by the adoption of the
appropriate procedures by the certifying
court and by the courts that review its
determinations; due process does not
require collateral second guessing of those
determinations and that review.”). If
Appellants have arguments that merit a
Rule 60(b) motion or a collateral attack on
the validity of settlement as to certain class
members, then a record must be fully
developed in the district court in the first
instance. Cf. H. Prang Trucking Co., Inc.
v. Local Union No. 469, 613 F.2d 1235,
1239 (3d Cir. 1980) (noting that “[t]he[]
issues have not been briefed on appeal,
and it does not appear from the record that
the parties thoroughly developed these
topics below” and further noting that “the
trial court should have an opportunity to
pass on these important questions in the
first instance”).
Of course, Appellants are in no way
precluded from challenging the adequacy
of representation with respect to the
negotiation of the Sixth Amendment here.
However, we reject Appellant’s argument
that the Sixth Amendment created two
groups of class members with divergent
interests. At the time that the Amendment
was negotiated, the two classes Appellants
identify–individuals who have already
opted out or have been fully compensated
and those that remain uncompensated and
bound by the settlement–did not have
divergent interests. For obvious reasons,
the former group had no interest
whatsoever in the negotiation, while the
latter group’s interest was to maximize the
benefits available given the possibility that
the Trust may become insolvent. Hence,
class counsel only had one real interest in
negotiating the Amendment, and,
accordingly, there was no conflict.
C. Justiciability
Appellants make the final argument
that Matrix claimants who will not be paid
due to funding insufficiency should be
immediately released from the Settlement
so that they may pursue unrestricted
actions against Wyeth in the tort system.
60(b) motion with respect to class action
settlement).
10 See, e.g., Stephenson, 273 F.3d 249
(allowing collateral attack on a class action
settlement).

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The District Court held that the principles
of justiciability prevented it from
addressing the issue of what the
consequences would be for the parties if
the Settlement Trust were actually to
become exhausted. The Court held that
the parties had no standing to bring such a
claim because they failed to allege harm
that is “actual or imminent, not
‘conjectural’ or ‘hypothetical.’” PTO
2778 (quoting Whitmore v. Arkansas, 495
U.S. 149, 155 (1990)). The Court further
pointed out that any future depletion of the
Trust remains purely speculative at the
moment, particularly since Wyeth could
still decide to supplement the funds
voluntarily in order to avoid further
litigation. We agree that a funding
shortf all is neith er “actual” nor
“imminent” here. This is particularly true
given the measures currently undertaken
by Trust administrators, such as auditing
of Green Form claims, to ease the strain on
the Trust. Considering these measures,
and the fact that $2 billion still remains
available to the Trust to satisfy Matrix
benefits, depletion of the Settlement funds
may never occur. We, therefore, reject
Appellant’s claim here as it is not fit for
adjudication at this time.
III. CONCLUSION
For the foregoing reasons, we
affirm the order of the District Court as set
forth in PTO 2778, approving the Sixth
Amendment to the Nationwide Class
Action Settlement Agreement.

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