Opinion of BREYER, J.

These “protracted and vigorous” negotiations led to the present partial settlement, which will pay an estimated $1.3 billion and compensate perhaps 100,000 class members in the first 10 years. 157 F. R. D., at 268, 287. “The negotiations included a substantial exchange of information” between class counsel and the 20 defendant companies, including “confidential data” showing the defendants' historical settlement averages, numbers of claims filed and settled, and insurance resources. Id., at 267. “Virtually no provision” of the settlement "was not the subject of significant negotiation,” and the settlement terms "changed substantially” during the negotiations. Ibid. In the end, the negotiations produced a settlement that, the District Court determined based on its detailed review of the process, was “the result of armslength adversarial negotiations by extraordinarily competent and experienced attorneys.Id., at 335.

The District Court, when approving the settlement, concluded that it improved the plaintiffs' chances of compensation and reduced total legal fees and other transaction costs by a significant amount. Under the previous system, according to the court, “[t]he sickest of victims often go uncompensated for years while valuable funds go to others who remain unimpaired by their mild asbestos disease.” Ibid. The court believed the settlement would create a compensation system that would make more money available for plaintiffs who later develop serious illnesses.

I mention this matter because it suggests that the settlement before us is unusual in terms of its importance, both to many potential plaintiffs and to defendants, and with respect to the time, effort, and expenditure that it reflects. All of which leads me to be reluctant to set aside the District Court's findings without more assurance than I have that they are wrong. I cannot obtain that assurance through comprehensive review of the record because that is properly the job of the Court of Appeals and that court, understandably, but as we now hold, mistakenly, believed that settle

Opinion of BREYER, J.

ment was not a relevant (and, as I would say, important) consideration.

Second, the majority, in reviewing the District Court's determination that common “issues of fact and law predominate,” says that the predominance “inquiry trains on the legal or factual questions that qualify each class member's case as a genuine controversy, questions that preexist any settlement.” Ante, at 623 (footnote omitted). I find it difficult to interpret this sentence in a way that could lead me to the majority's conclusion. If the majority means that these presettlement questions are what matters, then how does it reconcile its statement with its basic conclusion that "settlement is relevant” to class certification, or with the numerous lower court authority that says that settlement is not only relevant, but important? See, e. g., In re A. H. Robins Co., 880 F. 2d 709, 740 (CA4), cert. denied sub nom. Anderson v. Aetna Casualty & Surety Co., 493 U. S. 959 (1989); In re Beef Industry Antitrust Litigation, 607 F. 2d 167, 177– 178 (CA5 1979), cert. denied sub nom. Iowa Beef Processors, Inc. v. Meat Price Investigators Assn., 452 U. S. 905 (1981); 2 H. Newberg & A. Conte, Newberg on Class Actions § 11.27, pp. 11-54 to 11–55 (3d ed. 1992).

Nor do I understand how one could decide whether common questions “predominate” in the abstract-without looking at what is likely to be at issue in the proceedings that will ensue, namely, the settlement. Every group of human beings, after all, has some features in common, and some that differ. How can a court make a contextual judgment of the sort that Rule 23 requires without looking to what proceedings will follow? Such guideposts help it decide whether, in light of common concerns and differences, certification will achieve Rule 23's basic objective—"economies of time, effort, and expense.” Advisory Committee's Notes on Fed. Rule Civ. Proc. 23(b)(3), 28 U. S. C. App., p. 697. As this Court has previously observed, “sometimes it may be necessary for the court to probe behind the pleadings before coming to Opinion of BREYER, J.

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rest on the certification question.” General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 160 (1982); see also 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure $ 1785, p. 107, and n. 34 (1986). I am not saying that the "settlement counts only one way.” Ante, at 620, n. 16. Rather, the settlement may simply “add a great deal of information to the court's inquiry and will often expose diverging interests or common issues that were not evident or clear from the complaint” and courts “can and should” look to it to enhance the “ability ... to make informed certification decisions.” In re Asbestos Litigation, 90 F. 3d 963, 975 (CA5 1996).

The majority may mean that the District Court gave too much weight to the settlement. But I am not certain how it can reach that conclusion. It cannot rely upon the Court of Appeals, for that court gave no positive weight at all to the settlement. Nor can it say that the District Court relied solely on "a common interest in a fair compromise,” ante, at 623, for the District Court did not do so. Rather, it found the settlement relevant because it explained the importance of the class plaintiffs' common features and common interests. The court found predominance in part because:

“The members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system.” 157 F. R. D., at 316.


The settlement is relevant because it means that these common features and interests are likely to be important in the proceeding that would ensue—a proceeding that would focus primarily upon whether or not the proposed settlement fairly and properly satisfied the interests class members had in common. That is to say, the settlement underscored the im

Opinion of BREYER, J.


portance of (a) the common fact of exposure, (b) the common interest in receiving some compensation for certain rather than running a strong risk of no compensation, and (c) the common interest in avoiding large legal fees, other transaction costs, and delays. Ibid.

Of course, as the majority points out, there are also important differences among class members. Different plaintiffs were exposed to different products for different times; each has a distinct medical history and a different history of smoking; and many cases arise under the laws of different States. The relevant question, however, is how much these differences matter in respect to the legal proceedings that lie ahead. Many, if not all, toxic tort class actions involve plaintiffs with such differences. And the differences in state law are of diminished importance in respect to a proposed settlement in which the defendants have waived all defenses and agreed to compensate all those who were injured. Id., at 292.

These differences might warrant subclasses, though subclasses can have problems of their own. “There can be a cost in creating more distinct subgroups, each with its own representation. ... [T]he more subclasses created, the more severe conflicts bubble to the surface and inhibit settlement. ... The resources of defendants and, ultimately, the community must not be exhausted by protracted litigation.” Weinstein, Individual Justice in Mass Tort Litigation, at 66. Or these differences may be too serious to permit an effort at group settlement. This kind of determination, as I have said, is one that the law commits to the discretion of the district court-reviewable for abuse of discretion by a court of appeals. I believe that we are far too distant from the litigation itself to reweigh the fact-specific Rule 23 determinations and to find them erroneous without the benefit of the Court of Appeals first having restudied the matter with today's legal standard in mind.

Opinion of BREYER, J.

Third, the majority concludes that the “representative parties” will not "fairly and adequately protect the interests of the class.” Rule 23(a)(4). It finds a serious conflict between plaintiffs who are now injured and those who may be injured in the future because "for the currently injured, the critical goal is generous immediate payments,” a goal that “tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future.” Ante, at 626.

I agree that there is a serious problem, but it is a problem that often exists in toxic tort cases. See Weinstein, supra, at 64 (noting that conflict “between present and future claimants” “is almost always present in some form in mass tort cases because long latency periods are needed to discover injuries”); see also Judicial Conference Report 34–35 (“Because many of the defendants in these cases have limited assets that may be called upon to satisfy the judgments obtained under current common tort rules and remedies, there is a ‘real and present danger that the available assets will be exhausted before those later victims can seek compensation to which they are entitled'” (citation omitted)). And it is a problem that potentially exists whenever a single defendant injures several plaintiffs, for a settling plaintiff leaves fewer assets available for the others. With class actions, at least, plaintiffs have the consolation that a district court, thoroughly familiar with the facts, is charged with the responsibility of ensuring that the interests of no class members are sacrificed.

But this Court cannot easily safeguard such interests through review of a cold record. “What constitutes adequate representation is a question of fact that depends on the circumstances of each case. 7A Wright, Miller, & Kane, Federal Practice and Procedure $ 1765, at 271. That is particularly so when, as here, there is an unusual baseline, namely, the “real and present danger?” described by the Judicial Conference Report above. The majority's use of the


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