Time is the ultimate budget constraint. Even the best of us only gets 24 hours a day. And sometimes, strategic decisions get made without perfect amounts of time. For class-action lawyers, this constraint is particularly clear in “rocket dockets” like the Eastern District of Virginia where deadlines are foreshortened and discovery can be massive.
But while we all have an intuitive feel for how time is a scarce resource for litigators, what does that actually mean when litigating? For one answer, we can look at Ortiz v. Fibreboard Corp., 527 U.S. 815, 863 (1999).
Issued more than a decade ago, Ortiz decided how parties could invoke Rule 23(b)(1)(B) (which governs class actions involving limited funds) in settling a mass tort action. The judges were explicitly considering when one can certify a settlement class when there may be a limited amount of money at stake. Strategically, though, it was the limits on time – not money – that made a difference in the case.
The procedural history is convoluted, but it culminated in the following situation: Fibreboard, an asbestos manufacturer, faced a steady influx of lawsuits; it was also embroiled in a prolonged fight with its insurer over who should pay for those lawsuits. As part of its strategy to limit liability, Fibreboard started talking about a global class settlement with selected plaintiffs’ attorneys. As the Supreme Court described the critical moment:
The settlement negotiations came to a head in August 1993, just as a California state appeals court was poised to decide the validity of the insurance policies. This fact meant speed was important, for the California court could well decide that the policies were worth nothing.
If the policies were worth nothing, then Fibreboard would have no insurance to cover its settlement costs. As a result, the plaintiffs, Fibreboard, and its insurance company hashed out the settlement details at a coffee shop near the courthouse in order to complete it by a midnight deadline.
The trial court, eager for a way to resolve this complex litigation, preliminarily approved the settlement. But once notice was issued, the settlement drew a host of objections – focusing on the use of Rule 23(b)(1) to certify the class (since there was no actual limited fund), and the finding that—despite clear conflicts among subclasses—the settlement passed muster under Rule 23(a). Nonetheless, the trial court gave final approval, and the Fifth Circuit affirmed.
The Supreme Court, however, decided that the clear requirements of Rule 23 took precedence over the realities of settling the case before it became unresolvable.
"the dissent argues that conflicts both within this certified class and between the class as certified and those excluded from it may be mitigated because separate counsel were simply not to be had in the short time that a settlement agreement was possible before the argument (or likely decision) in the coverage case. But this is to say that when the clock is about to strike midnight, a court considering class certification may lower the structural requirements of Rule 23(a) as declared in Amchem, and the parallel equity requirements necessary to justify mandatory class treatment on a limited fund theory.
In other words: somewhere, a clock is always ticking. What’s most interesting about this case is not the final decision that a court should not pay attention to a ticking clock, but that both the majority and the dissent recognized that ticking clocks matter to the parties. Because they do. Briefs have deadlines. So do settlements. There is always a ticking clock, and that clock may very well limit the options available to a party, and force some decisions that, had they but world enough and time, the parties would make differently.