IN RE FEDERAL SKYWALK CASES

McMILLIAN, Circuit Judge.

This action challenges the validity of a mandatory class certification order rendered by the United States District Court1 for the Western District of Missouri during the course of litigation arising out of the collapse of two skywalks at the Hyatt Regency Hotel in Kansas City, Missouri in July, 1981.2 The class was certified on the issues of liability for compensatory and punitive damages and amount of punitive damages, and includes all business invitees at the hotel during the disaster.

Two objecting plaintiffs (objectors) now petition this court to vacate the order and disqualify the federal district judge asserting jurisdiction under 28 U.S.C. § 1292(a)(1), or alternatively, under mandamus.3 In response the class representative argues that the order is interlocutory thereby precluding appellate review. Alternatively, the class representative argues that the federal district judge did not abuse his discretion in certifying the class and further that the class is appropriate.4 For the reasons discussed below, we conclude that we do have jurisdiction under 28 U.S.C. § 1292(a)(1) and further that the order must be vacated because it violates the Anti-Injunction Act, 28 U.S.C. § 2283. We also conclude that 28 U.S.C. § 455(a) does not require the disqualification of the federal district judge.

On July 17, 1981, two skywalks in the central lobby of the Hyatt Regency Hotel in Kansas City, Missouri, collapsed killing 114 persons and injuring hundreds of others. Following the disaster numerous individual lawsuits were filed in both the Circuit Court for Jackson County, Missouri (state court), and the United States District Court for the Western District of Missouri (district court).5 The federal district court jurisdiction was based on 28 U.S.C. § 1332, diversity of citizenship.

The state court cases were consolidated and assigned to Judge Timothy O'Leary. The federal cases were also consolidated and assigned to Judge Scott O. Wright. Shortly after the first cases were filed, the state and district court consolidated their respective cases for discovery. Each court appointed a Plaintiffs' Liaison Committee to aid in discovery and other matters. In addition, the two courts appointed a joint state-federal Plaintiffs' Liaison Committee to aid in the consolidated discovery.6 Each court held pretrial conferences and issued pretrial orders concerning the scheduling of discovery.

Prior to the class certification, the Plaintiffs' Liaison Committee accomplished substantial discovery and trial preparation on behalf of all plaintiffs. The accomplishments included nearly completing the interrogatory phase of discovery and serving requests for production upon the defendants. In addition, the committee collected approximately 300,000 documents pertaining to the litigation and had arranged for a document depository available to all plaintiffs' counsel. The committee had also arranged for the testing of the skywalk materials by the National Bureau of Standards. Brief In re Melanie Hanson Johnson, Appendix I "Affidavit of Patrick McLarney."

On October 27, 1981, Molly Riley, a district court plaintiff, filed a motion for class certification. The motion sought class certification under Fed.R.Civ.P. 23(b)(1)(B), or in the alternative under 23(b)(3), as to the issues of liability for compensatory and punitive damages and the amount of punitive damages.7 The basis for requesting class certification was Riley's concern that there would be inadequate funds available to pay all claims for compensatory and punitive damages. Riley also moved that her counsel be appointed as lead counsel for the class.

Several federal and state court plaintiffs filed pleadings in opposition to Riley's motion. The objecting plaintiffs challenged Riley's and her attorney's qualifications to represent the class. They also challenged the need for and desirability of class action treatment arguing that there was no evidence of insufficient funds to satisfy all claims. A hearing was held before Judge Wright on December 10, 1981.

Prior to issuing the class certification order now on appeal, Judge Wright became aware that Riley could not serve as class representative because she was not of diverse citizenship from all defendants. Judge Wright then reviewed the complaints on file and determined that plaintiffs Stover, Johnson, Vrabel, Grigsby and Abernathy were diverse to all defendants.

Thereafter, Judge Wright placed two telephone calls to Robert Collins, Stover's attorney, and inquired whether Stover would serve as class representative if a class was certified.8 Judge Wright also stated that if Stover would agree to be class representative he would appoint Collins as assistant class counsel to Riley's attorney if a class was certified. Judge Wright and Collins agreed to speak again after Collins consulted with Stover. Collins thereupon called defense counsel and unsuccessfully attempted to settle Stover's claim. Stover then agreed to be class representative.

On January 19, 1982, counsel for the objecting plaintiffs moved, pursuant to 28 U.S.C. § 455(a), to disqualify Judge Wright based on his communications with Collins.

On January 25, 1982, Judge Wright entered the order appealed from in which he (1) denied Riley's motion for class certification because her citizenship was not diverse from all defendants, (2) certified a class action under Rule 23(b)(1)(A) on the issues of liability for compensatory and punitive damages, (3) certified a class action under Rule 23(b)(1)(B) on the issues of liability for punitive damages and the amount of punitive damages, (4) selected plaintiffs Stover, Vrabel, Grigsby and Abernathy as class representatives,9 (5) selected Riley's counsel as lead counsel, and counsel for the class representatives as assistant class counsel, (6) denied the motion to disqualify himself under § 455(a), explaining that he called Collins as a matter of courtesy and had intended to call the lawyers for Johnson, Vrabel, Grigsby and Abernathy but did not do so because the motion to disqualify was filed, and further that he had not decided to certify the class until the order was drafted and entered, and (7) denied objectors' request to certify an interlocutory appeal under 28 U.S.C. § 1292(b). In re Federal Skywalk Cases, 93 F.R.D. 415 (W.D.Mo.1982).

In support of its order the district court found that the general prerequisites for class actions prescribed by Rule 23(a) were satisfied, id. at 420-22, and that the specific requirements of Rule 23(b)(1) were also satisfied. The court stressed that the "interests of all parties concerned" would best be served by "the avoidance of wasteful, repetitive litigation," and that such litigation could be avoided by "trying the issues of liability for compensatory damages, liability for punitive damages and amount of punitive damages only once." Id. at 423.

In support of the Rule 23(b)(1)(A) class the court found that individual suits on the issues of liability for compensatory and punitive damages would create a risk of inconsistent results. Id. at 424.

In support of the Rule 23(b)(1)(B) class the court relied on three considerations. First, the defendants held liable for punitive damages might lack the funds to pay the full amount of such damages. Id. at 424. Second, individual suits for punitive damages would create a risk of unfairness to the other claimants because "there is some uncertainty under Missouri law as to whether a single defendant can be liable for more than one award of punitive damages."10 Id. at 424. Third, the court noted that the prosecution of individual punitive damage actions could create an ethical problem for counsel representing more than one victim in that the counsel would be forced to decide which suit to bring first. Id. at 425.

On February 9, 1982, the objectors filed their notice of appeal and petition for mandamus.

Our initial inquiry must be whether the order is appealable. Recognizing that the order is interlocutory, we would nevertheless have appellate jurisdiction under 28 U.S.C. § 1292(a)(1) (1976)11 if that order is injunctive in character. Therefore, resolution of this issue depends upon the nature of the order. The objectors argue that the order enjoins them from prosecuting their state court actions for punitive damages. In response the class argues that the order is not an injunction because it does not use injunction terminology and, more importantly, it does not enjoin the objectors from settling their claims. The class characterizes the order as follows:

Brief on Behalf of the Representative Plaintiff and the Class at 4 (emphasis added). We do not agree with that characterization and conclude that we do have jurisdiction under 28 U.S.C. § 1292(a).

The determination of whether an order is an injunction depends upon the substantial effect of the order rather than its terminology. See Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942); In re Glenn W. Turner Enterprises Litigation, 521 F.2d 775 (3d Cir. 1975).

In the present case, contrary to the class's assertion, the district court expressly prohibited class members from settling their punitive damage claims:

In re Federal Skywalk Cases, at 428 (emphasis added). In addition, the substantial effect of the order also enjoined the state plaintiffs from pursuing their pending state court actions on the issues of liability for compensatory and punitive damages and the amount of punitive damages.

At oral argument counsel for the class argued that 28 U.S.C. § 1292(a)(1) should not be construed to apply to class certification because the inevitable effect of a mandatory class is an injunction against state court actions on class issues. We conclude that the argument is not persuasive on the facts before us.

It is true that parties to a mandatory class are not free to initiate actions in other courts to litigate class certified issues. See Reynolds v. National Football League, 584 F.2d 280, 283 (8th Cir. 1978). However, in the present case the objectors had commenced their state court actions before the motion for class certification had been filed in district court. The state court cases had been filed, consolidated, and discovery had begun.12 It is this injunction against pending state court actions that gives us jurisdiction under 28 U.S.C. § 1292(a). See In re W.F. Hurley, Inc., 553 F.2d 1096, 1101 (8th Cir. 1977); In re Glenn Turner Enterprises Litigation, 521 F.2d at 775.

Because we have jurisdiction over the appeal and because the injunction is inter-dependent with the remainder of the appealed order, we may review the entire order insofar as it has been appealed. See Deckert v. Independence Shares Corp., 311 U.S. 282, 287, 61 S.Ct. 229, 232, 85 L.Ed. 189 (1940) (jurisdiction reviewable); Adashunas v. Negley, 626 F.2d 600, 602 (7th Cir. 1980) (class issues reviewable); Emerson Electric Co. v. Black and Decker Manufacturing Co., 606 F.2d 234, 237 (8th Cir. 1979) (venue reviewable). Therefore, we need not decide whether the order would have been reviewable as a petition for mandamus.

Our conclusion that the order enjoins pending state proceedings necessitates an inquiry as to the propriety of that order under the Anti-Injunction Act, 28 U.S.C. § 2283. The Act provides that "[a] court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgment."

In Atlantic Coast Line R.R. v. Locomotive Engineers, 398 U.S. 281, 286-87, 90 S.Ct. 1739, 1742-43, 26 L.Ed.2d 234 (1970), the Supreme Court recognized that the Act imposes a flat and positive prohibition:

Recently a plurality of the Court in Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630-31, 97 S.Ct. 2881, 2887, 53 L.Ed.2d 1009 (1977), emphasized the continuing force of Atlantic Coast Line:

Therefore, if the injunction is to be upheld, it must be on the basis that the district court's authority derives from one of the three exceptions. On appeal the class relies on the "necessary in aid of its jurisdiction" exception. In support it first draws an analogy between the order and a Rule 22 interpleader under which a federal court can enjoin claimants from prosecuting claims in state court. The class reasons that here, as in the interpleader situation, there is a limited fund and that the class action is necessary to protect all claimants. We disagree.

The analogy is based on the premise that the possibility of defendants being required to pay only one punitive damage award is comparable to the limited fund concept underlying federal interpleader. That premise is erroneous. "Federal interpleader jurisdiction depends on identifiable property or a limited fund or pecuniary obligation, and it is not proper to predicate jurisdiction on the mere potential to recover damages for pecuniary injury." Murphy v. Travelers Insurance Co., 534 F.2d 1155, 1159 (5th Cir. 1976), citing Wallach v. Cannon, 357 F.2d 557 (8th Cir. 1966).

In the present case the class has an uncertain claim for punitive damages against defendants who have not conceded liability. The claim does not qualify as a limited fund which is a jurisdictional prerequisite for federal interpleader. Without the limited fund there is no analogy to an interpleader and no reason to treat the class action as an interpleader for purposes of the Anti-Injunction Act.

The class proposes a second analogy between the order and several earlier decisions which allowed an injunction when an insurance company brought a federal suit for a declaratory judgment that a particular policy was invalid and the beneficiary subsequently sues in state court to recover under the policy. We conclude that the analogy is not persuasive.

Initially we note that the most recent case cited by class was decided in 1940, long before the enactment of the current Anti-Injunction Act.13 We also note that even the commentator cited by the class acknowledges:

1A Moore's Federal Practice ¶ 910.225 at 2621.

In addition, the cited cases are distinguishable on the basis that they involved situations in which identical parties were litigating mutually exclusive theories concerning their rights in the same policy in different forums. Such is not the case here. Furthermore, as conceded by the class, the cases involved injunctions against subsequent state actions. In contrast, the injunction in the present case was against pending state actions.

Next the class argues that allowing individual actions in state court will nullify the purpose of the class. The Supreme Court has narrowly interpreted the "necessary in aid of jurisdiction" exception, and a pending state suit must truly interfere with the federal court's jurisdiction. As the objectors correctly point out, a plurality of the Supreme Court reaffirmed in Vendo Co. its earlier holdings that a simultaneous in personam state action does not interfere with the jurisdiction of a federal court in a suit involving the same subject matter.

In the present case the federal and state actions are in personam claims for compensatory and punitive damages. Therefore, based on the foregoing principles, we are compelled to hold that despite Judge Wright's legitimate concern for the efficient management of mass tort litigation, the class certification order must be vacated. Mr. Justice Black's concluding words in Atlantic Coast Line are particularly apt here:

398 U.S. at 296-97, 90 S.Ct. at 1747-48.

The foregoing ruling does not dispose of the entire appeal because the objectors also seek the disqualification of Judge Wright under 28 U.S.C. § 455(a), which provides that a judge "... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The objectors argue that Judge Wright's ex parte communications with Collins raise reasonable questions as to whether Judge Wright is biased in favor of the obliging class members. We disagree.

28 U.S.C. § 455(a) requires a judge to disqualify himself if a reasonable person would have factual grounds to doubt the impartiality of the court. Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Cir. 1979). The determination for the district judge to make is whether "his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Once that determination has been made, our role on review is limited to deciding whether the district court's evaluation of the claim of partiality or prejudice amounted to an abuse of discretion. Blizard v. Frechette, 601 F.2d at 1221.

Initially we note that we do not condone Judge Wright's communications with Collins. Once it became apparent that the named plaintiff could not serve as class representative, we think the better practice would have been for the district judge to have called counsel of all potential class representatives and held a hearing to determine whether any of them would serve as class representative in the event the district judge decided to certify a class. However, after a careful review of the entire record, we conclude that Judge Wright did not abuse his discretion in refusing to disqualify himself.

A claim of bias must be evaluated in light of the full record, not simply in light of an isolated incident. See Walker v. Bishop, 408 F.2d 1378, 1382 (8th Cir. 1969). In the present case Judge Wright developed an extensive record before he made his decision to certify the class. By order dated November 17, 1981, Judge Wright directed the parties and invited all interested parties to submit briefs on any issues relevant to the certification of a class. On December 10, 1981, Judge Wright held a hearing on the motion at which time the parties had the opportunity to present their objections to the court. During the course of the hearing, Judge Wright decided that two additional issues needed briefing, namely (1) whether multiple punitive damage verdicts could be obtained by successive plaintiffs based on the same conduct and (2) whether Missouri law allows recovery of punitive damages in wrongful death actions. These issues were briefed and submitted to Judge Wright before he made his decision to certify the class.

The order itself is carefully reasoned and stresses Judge Wright's concern that "[i]f a defendant can only be punished once, then the first claimant to get an award [of punitive damages] is the first and only winner. The Court is not inclined to permit the sacrifice of one aggrieved party's claim for the sole benefit of another aggrieved party." In re Federal Skywalk Cases, slip op. at 424-25.

We conclude that Judge Wright certified the class based solely on his judgment that such action would best serve the interests of all parties involved. In addition, we note the complexity of the issues before Judge Wright and commend his creative efforts in attempting to achieve a fair, efficient and economical trial for the victims of the Hyatt Regency disaster.14 However, as explained above, the order cannot stand on the facts before us.

The order of the district court is vacated.

HEANEY, Circuit Judge, dissenting.

The majority decision is very narrow, holding that the mandatory class action certified by the court below violates the Anti-Injunction Act. It is clear, as the majority recognizes, that the Act would not be contravened by an opt-out class action. On remand, the district court should consider whether such an opt-out class is appropriate.

I dissent, nonetheless, because I believe that the district court's mandatory class action, if slightly modified, would be proper. We should modify the district court's order by permitting punitive damage claims to be settled and by providing that the defendants will receive credit for any such settlements when and if there is a class-wide award of punitive damages. Such a modified class action would satisfy the requirements of Fed.R.Civ.P. 23 and would not violate the Anti-Injunction Act. Moreover, it would provide the fairest way for all plaintiffs to seek recovery in the manner in which they choose — either through settlement or prompt judicial resolution of their claims.

I.

INTRODUCTION.

The crucial issue on this appeal is the effect of the district court's class certification order on the settlement process. As long as a class suit does not prevent the plaintiffs who wish to settle from doing so, no one seriously contends that it will deny them the opportunity to secure fair and expeditious compensation for their losses — either by settling or promptly proceeding to trial. The objectors, however, urge that settlements are blocked by the district court's order because individual plaintiffs cannot settle punitive damage claims,1 and thus cannot execute general releases. Without such general releases, the objectors claim that the defendants are not protected against any further assertion of claims by settling plaintiffs.

I share the majority's belief that those plaintiffs who wish to settle all their claims should be permitted to do so. The class action need not be decertified to achieve this result. This goal can be accomplished by modifying the district court's order: (1) to expressly permit the settlement of punitive damage claims, and (2) to provide that the defendants will receive credit for the punitive claims they settle when and if a class-wide punitive damage award is ordered. Both the class action plaintiffs and the defendants have suggested methods for providing credit to the defendants for any claims they settle.2 It may be that a hearing on the issue would develop additional alternatives. In my view, the district court should be directed to proceed without delay to hold the necessary hearings and adopt a procedure. As soon as this result is accomplished, the settlement process could proceed unimpeded by the class lawsuit.

II.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY CERTIFYING A MANDATORY CLASS ACTION.

The district court's order cannot be vacated unless its certification of the class action constitutes an abuse of discretion. E.g., Rule v. International Association of Bridge, Structural & Ornamental Ironworkers, 568 F.2d 558, 563 (8th Cir. 1977). I believe that the district court did not abuse its discretion; its certification order is supported by several important considerations.

A. Justifications for Class Certification.

The plaintiffs who sustained serious injuries or seek to recover for the death of family members should not be denied the opportunity to be promptly compensated. Likewise, plaintiffs seeking less substantial actual damages and punitive damages should not be effectively deprived of their claims. A class suit provides a device by which these smaller claims can be aggregated and litigation costs prorated among numerous claimants, thereby making worthwhile claims that might otherwise not be pursued.3 E.g., Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 338, 100 S.Ct. 1166, 1173-74, 63 L.Ed.2d 427 (1980). See Comment, The Use of Class Actions for Mass Accident Litigation, 23 Loyola L.Rev. 383, 384-385 (1977). Note, Developments in the Law — Class Actions, 89 Harv.L.Rev. 1318-1322, 1354-1355 (1976). Thus, a class action provides the best method for all plaintiffs to vindicate their legitimate claims.

A class suit on the liability and punitive damage issues also provides an effective means to confine and manage the substantial litigation arising from this mass disaster. See, e.g., 7A Wright & Miller, Fed. Prac. & Proc.: Civil, § 1783 at 116-117 (1972); Note, Developments in the Law — Class Actions, supra, 89 Harv.L.Rev. at 1318-1322, 1354-1355; Note, Mass Accident Class Actions, 60 Cal.L.Rev. 1615 passim (1972). It conserves litigant and judicial resources by permitting the liability and punitive damage issues to be tried once, and only once; thereby avoiding a multiplicity of lawsuits on the same issues involving the same facts and the same defendants.4 Moreover, it promotes judicial economy by focusing this litigation in the court that will have to resolve the major disputed issues in this case. The defendants have already begun to file in the federal district court their lawsuits to determine the respective liability and contribution issues among the various tortfeasors.

Moreover, a single class-wide adjudication of punitive damages ensures that every victim will receive his or her just share of any punitive damage award. Absent a class action, the distribution of punitive damages will be determined in a succession of individual lawsuits. In that event, the risk exists that individual juries will reach inconsistent results on the liability and damage issues. Moreover, even if the results are consistent, the risk arises that late-suing plaintiffs will have their punitive damage recoveries reduced or even eliminated by prior awards because there is certainly some limit on the amount of exemplary damages the defendants will be required to pay.5 A class action suit provides the most effective — and perhaps only — procedure to ensure that any recovery will be distributed equitably among all plaintiffs. Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 838-842 (2d Cir. 1967) (dicta); In Re Northern District of California "Dalkon Shield" IUD Products Liability Litigation, 526 F.Supp. 887, 897-900 (N.D.Cal.1981) (hereafter cited as In re Dalkon Litigation). See Putz & Astiz, Punitive Damage Claims of Class Members Who Opt Out: Should They Survive?, 16 U.San Fran.L.Rev. 1, 18-40 (1981); Note, Mass Liability and Punitive Damages Overkill, 30 Hastings L.J. 1797, 1800-1812 (1979); Note, Mass Accident Class Actions, supra, 60 Cal.L.Rev. at 1624-1639.6

B. Objections to Class Certification.

Despite these justifications for a class action, the objectors argue that the district court's order constitutes an abuse of discretion.7 Most importantly, they contend that Rule 23(b)(1)(B) simply does not authorize a class action in this case. A class action may be certified under Rule 23(b)(1)(B) when a number of individuals claim rights to a share of a fund that is too small to satisfy in full every individual's claim. See, e.g., Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 & n.9 (9th Cir. 1976); Coburn v. 4-R Corp., 77 F.R.D. 43, 45-46 (E.D.Ky.1977). See also Note, Developments in the Law — Class Actions, supra, 89 Harv.L.Rev. at 1367. The objectors claim that the facts here do not support the district court's finding that there is a limited fund available to pay punitive damages awards.8 I disagree.

Missouri law may preclude multiple punitive damage awards for a single wrongful act or omission. At oral argument, the objectors and the class representatives both conceded that the state law is uncertain and that there is a legitimate and reasonable argument that a defendant can be punished only once for conduct transcending ordinary negligence. The Missouri Court of Appeals recently dismissed as moot a case in which they might have resolved this question. Monsanto Co. v. Parker, 634 S.W.2d 506 (Mo.App.1982). Thus, an award of punitive damages to the first litigant may preclude all subsequent awards to later plaintiffs. The harshness and unfairness of this potential result justifies the district court's class certification.

Even if multiple punitive damage awards are permissible, the class certification was appropriate because the defendants held liable may not have the capacity to satisfy the judgments against them.9 The claims of those victims who have filed individual lawsuits exceed $1 billion in compensatory damages and $500 million in punitive damages. The total insurance of all the defendants is only $333 million. Moreover, the record does not reveal how that insurance coverage is divided among the defendants and how much, if any, of it is available to pay punitive damage awards.10 Furthermore, we cannot determine on the record before us the net worth of the various defendants. If the three largest defendants — Crown Center, Hallmark and Hyatt — are not found liable for punitive damages, the insurance coverage and assets of the remaining defendants would become significant indeed because they may well not be sufficient to satisfy the exemplary damage judgments in view of the large amounts sought by the plaintiffs.

Apart from the defendants' capacity to pay punitive damages, there is surely some limit imposed by law on the amount for which they can be held liable for a single wrongful act or course of conduct. Unlimited multiple punishment for the same act determined in a succession of individual lawsuits and bearing no relation to the defendants' culpability or the actual injuries suffered by victims, would violate the sense of "fundamental fairness" that is essential to constitutional due process. See Roginsky v. Richardson-Merrell, Inc., supra, 378 F.2d at 838-841; In re Dalkon Litigation, supra, 526 F.Supp. at 900. See also Putz and Astiz, Punitive Damage Claims of Class Members Who Opt Out: Should They Survive?, supra, 16 U.San Fran.L.Rev. at 29-31; Note, Mass Liability and Punitive Damages Overkill, supra, 30 Hastings L.J. at 1797-1800. Moreover, the basic jurisprudential precepts that litigation must come to an end and that a party cannot be repeatedly sued on the same cause of action are violated by excessive multiple punishment. See Putz and Astiz, Punitive Damage Claims of Class Members Who Opt Out: Should They Survive?, supra, 16 U.San Fran.L.Rev. at 29-31; Note, Mass Liability and Punitive Damages Overkill, supra, 30 Hastings L.J. at 1797-1800.

Consequently, I believe that the district court did not err in finding a significant likelihood that the punitive damage awards may exhaust the culpable defendants' capacity to pay the judgments.

The objectors next contend that the named class representative, Shirly Stover, does not "fairly and adequately protect the interests of the class" as required by Rule 23(a)(4). They base their claim on the fact that she did not move for class certification. While a class representative's failure to move for certification has been found in some circumstances to be an indication that he or she will not adequately represent the class, such a failure is not dispositive of the issue. Indeed, a court may select as a class representative a class member who did not file for certification, see, e.g., United States Parole Commission v. Geraghty, 445 U.S. 388, 407, 100 S.Ct. 1202, 1214, 63 L.Ed.2d 479 (1980), or it may even elect to certify a class and select a class representative even if no party seeks a class action. See, e.g., Ford v. U. S. Steel Corp., 638 F.2d 753, 754 (5th Cir. 1981); In re Dalkon Litigation, supra, 526 F.Supp. at 894.11 In addition, there was, of course, no need for Stover to move for class certification in this case since Molly Riley had already done so.

The objectors also argue that the counsel appointed for the class are inadequate because they are tainted with conflicts of interest. I find no support in the record for this contention.12

The objectors next claim that class certification was improper because the various claims present individual issues and the individual claimants have a strong interest in controlling their litigation. In particular, they rely on the Advisory Committee Notes to the 1966 amendments to the Federal Rules of Civil Procedure which indicate that class actions under Rule 23(b)(3) generally are inappropriate in mass accident cases.

The petitioners reliance on this authority is misplaced. First, under the express terms of Rule 23, individual control is an articulated concern for courts to consider with respect to certifying a class only under subsection (b)(3), not subsection (b)(1) on which the district court here relied. Thus, the district court was not necessarily required to consider the claimants' interest in individual control before certifying a class under Rule 23(b)(1).13

Second, to the extent that the interest in individual control is relevant to certifying a Rule 23(b)(1) class, that concern does not preclude a class suit in mass accident cases. If the drafters of the rule had intended to create such a per se rule, they would have simply said so. See Comment, The Use of Class Actions for Mass Accident Litigation, supra, 23 Loyola L.Rev. at 405. Instead, the drafters said:

Fed.R.Civ.P. 23(b)(3) advisory committee note.

It is apparent that the concerns that prompted the drafters to conclude that class suits are not generally appropriate in mass accident cases are not applicable here. In this case, the facts relevant to liability will not differ meaningfully from one claimant to another, and there is little or no likelihood of individual defenses being presented. The compensatory damage issues, of course, will involve differing factual questions, but these claims present no bar to class certification because the district court limited the class action to the liability and punitive damage issues as permitted by Rule 23(c)(4). Consequently, the concerns of individualization of issues and the claimants' interest in controlling their own case present no real obstacle to class suits in mass accident cases such as the instant one. E.g., 3B J. Moore, Fed.Prac., ¶ 23.45[3] at 811 & n.35 (2d ed. 1948); 7A Wright & Miller, supra, § 1783 at 117; Comment, The Use of Class Actions for Mass Accident Litigation, supra, 23 Loyola L.Rev. at 390; Note, Mass Accident Class Actions, supra, 60 Cal.L.Rev. at 1621.

Finally, the objectors contend that the district court's class certification deprives them of their constitutional rights. First, they argue that a class-wide award of damages to be divided among class members is a "fluid recovery"14 that denies them their constitutional rights to due process and trial by jury.

The Constitution does not create an absolute bar to a class-wide assessment of punitive damages. The objectors' Seventh Amendment right will be satisfied by the opportunity to adjudicate the class-wide damage assessment before a jury.15 See Dickinson v. Burnham, 197 F.2d 973, 980-981 (2d Cir.), cert. denied, 344 U.S. 875, 73 S.Ct. 169, 97 L.Ed.2d 678 (1952) (1938 version of Rule 23). See also, e.g., Note, Developments in the Law — Class Actions, supra, 89 Harv.L.Rev. at 1523-1525; 7A Wright & Miller, supra, § 1784 at 122; Jacoby & Cherasky, The Effects of Eisen IV and Proposed Amendments to Rule 23, 12 San Diego L.Rev. 1, 24 (1974); Comment, Due Process and Fluid Class Recovery, 53 Ore.L.Rev. 225, 237 (1974); Note, Eisen v. Carlisle & Jacquelin — Fluid Recovery, Minihearings, and Notice in Class Actions, 54 B.U.L.Rev. 111, 123-124 (1974). In the absence of defenses that could be asserted against individual class members, or other such individualized inquiries, due process does not require multiple hearings as long as there is one full and fair determination of the merits. See, e.g., Note, Developments in the Law — Class Actions, supra, 89 Harv.L.Rev. at 1523-1525; Comment, Due Process and Fluid Class Recovery, supra, 53 Ore.L.Rev. at 237; Note, Eisen v. Carlisle & Jacquelin — Fluid Recovery, Minihearings, and Notice in Class Actions, supra, 54 B.U.L.Rev. at 123-124.

In some circumstances courts have not permitted the class-wide calculation of damages. See, e.g., Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1018 (1973), vacated and remanded on other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); In re Hotel Telephone Charges, 500 F.2d 86, 92 (9th Cir. 1974). In other cases, however, the mechanism has been utilized. See, e.g., Bebchick v. Public Utilities Commission, 318 F.2d 187, 203-204 (D.C.Cir.), cert. denied, 373 U.S. 913, 83 S.Ct. 1304, 10 L.Ed.2d 414 (1963); West Virginia v. Chas. Pfizer & Co., 314 F.Supp. 710, 744 (S.D.N.Y.), aff'd, 440 F.2d 1079, 1089-1091 (2d Cir.), cert. denied, 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971). The propriety of class-wide damage assessment, with or without a fluid recovery mechanism, should depend on whether it is consistent with the policies of the underlying cause of action. Note, Developments in the Law — Class Actions, supra, 89 Harv.L.Rev. at 1526-1536.

The justifications for imposing punitive damages include expressing society's disapproval of outrageous conduct, deterring such conduct in the future, and providing incentives for private civil enforcement. Mallor & Roberts, Punitive Damages: Toward a Principled Approach, 31 Hastings L.J. 639, 647-650 (1980). Each of these purposes is advanced by the district court's class certification here. Thus, a class-wide calculation of punitive damages would be proper.

The objectors' second constitutional claim is that the district court denied them due process by not permitting them to be heard after its class certification order. Specifically, they object to the order providing:

In Farber v. Riker-Maxson Corp., 442 F.2d 457 (2d Cir. 1971), the Second Circuit upheld an order of the district court virtually identical to the one here. The Court held that such an order did not deprive the parties prohibited from filing motions "an appropriate opportunity to participate in the litigation." Id. at 459. Indeed, the very nature of a class action requires that the class representative, and his or her attorney, represent the class and that members of the class cannot continue to file motions as they might in an individual action. Moreover, here, as in Farber, the district court's order did not bar counsel for class members from applying to it for permission to file a motion. Id. at 459. Accordingly, the district court's order did not deny the objectors due process.

C. Summary.

In sum, the district court's class action satisfies all the requirements of Rule 23, and the state and federal constitutions. Moreover, certification of a class action would promote judicial economy in a complex case where such concerns are especially significant. It would protect the interests of defendants by avoiding endless relitigation and inconsistent determinations of their relative liability. And, it would protect the plaintiffs by ensuring prompt determination of liability (thereby promoting settlements) and by guaranteeing that any punitive damage award would be fairly allocated to all plaintiffs. Therefore, I believe that the district court did not abuse its discretion in certifying the class action.

III.

THE DISTRICT COURT DID NOT VIOLATE THE ANTI-INJUNCTION ACT BY CERTIFYING A MANDATORY CLASS ACTION.

The majority recognizes that an opt-out class, which the district court remains free to certify, would not violate the Anti-Injunction Act. Because members of such a class would be free to withdraw and pursue their claims independently in state court, such a class action would not inherently restrict state court proceedings, nor would it afford any basis upon which the district court might enjoin state court proceedings. See In Re Glenn Turner Enterprises Litigation, 521 F.2d 775 (3d Cir. 1975).

The majority holds, however, that the mandatory class action violates the Anti-Injunction Act because some class members have already initiated state court proceedings and presumably will be enjoined from pursuing such independent actions. See, supra, at 1181, 1183. This is a sweeping rule that prohibits certification of an otherwise proper mandatory class whenever a class member has commenced a state court action. In my view, such a rule is not supported by the cases relied upon by the majority and, moreover, is simply the wrong rule in light of the necessary dictates of mandatory class actions.

A mandatory class action, of course, has a restrictive effect on related proceedings in any other court — state or federal. This is because, by definition, members of such a class cannot pursue independent litigation of class claims. See, e.g., Reynolds v. National Football League, 584 F.2d 280, 283 (8th Cir. 1978). The majority states that a mandatory class only prohibits members from initiating independent litigation, citing Reynolds v. National Football League, supra, for this proposition. Supra, at 1180. Neither Reynolds nor any other case cited to this Court supports such a narrow construction of mandatory class actions. Indeed, the implication of the majority's view is that mandatory classes are not truly mandatory — any member who has previously commenced independent litigation is somehow not subject to the ordinary rules of such class actions. In my view, the plain meaning of a mandatory class does not change merely because some members of the class have previously initiated independent actions. If certification of a mandatory class is proper, as here it clearly is, then the ordinary rules of such actions simply preclude independent litigation of class claims in state or federal courts.

This point is important to whether the class action violates the Anti-Injunction Act. Under the Act, an injunction of state court proceedings is proper when it is "necessary in aid of" the federal court's jurisdiction. 28 U.S.C. § 2283. It seems self-evident that an injunction to protect the ordinary scope of a mandatory class action is "necessary in aid of" the federal jurisdiction over such a class.

I must emphasize that no plaintiff has, as yet, been enjoined from pursuing any state court action.16 Our review is thus proper, if at all,17 to the extent that certification of a mandatory class will necessarily restrict class members from pursuing pending state court proceedings. The question then is whether such restrictions are "necessary in aid of" the class action jurisdiction.

Here, the necessary restrictive effects of the mandatory class action are twofold. The first restrictive effect is that class members would not be able to pursue a punitive damage claim in an independent action. Such a restriction is absolutely necessary to the district court's jurisdiction over this class issue due to the applicable state law on punitive damages. Although the parties do not agree on the certainty of the state law rule, they do agree that there is a legitimate and reasonable claim that under Missouri law, only the first plaintiff to achieve a judgment would obtain a punitive award — all other plaintiffs would be frozen out. See, supra, at 1186. When a mandatory class is necessary to protect all plaintiffs on this claim, it seems obvious that an injunction against independent litigation of the issue is "necessary in aid of" the jurisdiction of the class.

The second restrictive effect of the mandatory class is to, in effect, stay state court proceedings on the issue of liability for compensatory damages. I emphasize that the plaintiffs are free to settle such claims or to pursue in state court a determination of the amount of such damages, once the class action determines relative liability among the defendants.18 The mandatory class is necessary to protect the numerous defendants from inconsistent results and extremely burdensome relitigations of their relative culpability and to ensure that serial determinations of liability will not deplete the assets of the defendants. See, supra, at 1187-1188. Certification of the compensatory liability issue is also strictly necessary to protect the punitive damage claim noted above because, under ordinary joinder rules, an independent action on liability would necessarily reach both compensatory and punitive issues. Thus, if a mandatory class is to be certified at all, it must include the punitive claim and at least the liability aspect of compensatory damages. In my view, where a mandatory class is properly certified for these purposes, enjoining independent litigation of the class issue is plainly "necessary in aid of" the class jurisdiction.

The majority essentially ignores that it is a mandatory class action we are considering under the Anti-Injunction Act. They cite, for example, In Re Glenn Turner Enterprises Litigation, supra, which held that an injunction of state court proceedings was not "necessary in aid of" the federal class's jurisdiction. Supra, at 1181. Turner, however, involved an opt-out class, not a mandatory one. The standard applied in Turner required a determination of whether the class action "can be given its intended scope only by stay of a state court proceeding." In Re Glenn Turner Enterprises Litigation, supra, 521 F.2d at 781. As the Turner Court properly reasoned, because the intended scope of an opt-out class permits independent actions, an injunction against such actions cannot be "necessary" to protect the scope of the class. Id. The Turner Court expressly reserved the issue of mandatory class actions, id., for good reason. The intended scope of a mandatory class precludes independent litigation of class claims, which is why an injunction against such independent actions is "necessary" to give the class its intended scope.

The majority primarily relies on the general doctrine that individual in personam actions, conducted concurrently in state and federal courts, do not cause interference with either court's jurisdiction. Supra, at 1182-1183. Thus, under the Anti-Injunction Act, an individual in personam claim in federal court is not a basis for enjoining other plaintiffs from pursuing similar claims in state court because such an injunction is not "necessary in aid of" the federal court's jurisdiction. Id. This rule developed around and applies to independent, individual claims, not mandatory class actions. The majority cites to no case in which this general rule has been used to preempt the ordinary application of mandatory class action rules.

Admittedly, the relationship between mandatory class actions and the Anti-Injunction Act appears to present an open question. The approach adopted by the majority, however, broadly forecloses mandatory class actions whenever a class member has commenced state court proceedings. I would agree that class actions should not become a vehicle for circumventing the ordinary relations between state and federal courts. The requirements for a mandatory class action, however, are quite rigorous and, by their nature, will prevent any such trend from developing. Moreover, there are unusually strong reasons for certifying the mandatory class here, a procedure which the district court found was essential to fair adjudication of all claims. Such circumstances will not often arise; yet in face of them, the majority has adopted a rule which broadly defeats the purpose of mandatory class action jurisdiction. I do not agree that such a rule is required by the Anti-Injunction Act, nor by any sensible view of the relations between state and federal courts.19