JOHNSON, Circuit Judge:
Petitioners seek a writ of mandamus ordering the district court to vacate its order certifying a class action pursuant to Federal Rules of Civil Procedure 23(b)(1) and staying all related litigation pursuant to the All Writs Act, 28 U.S.C.A. § 1651. For the reasons stated below, we grant the petition and issue the writ.
Raymark Industries, Inc. ("Raymark") is a Connecticut corporation which has at various times manufactured products containing asbestos. Raymark's use of asbestos has prompted the filing of thousands of personal injury lawsuits in numerous jurisdictions. Faced with an avalanche of litigation, Raymark moved the United States District Court for the Northern District of Georgia, before which was pending one of the personal injury suits, Waldron v. Raymark Industries, Inc., No. 1:88-CV-1229-RLV (N.D.Ga.), to certify a mandatory class action to consolidate all present and future asbestos-related personal injury actions brought against it. Raymark argued that certification was justified primarily because the corporation had limited assets from which claimants could be satisfied.
(Order at 11). The Court then stayed "all personal injury actions presently pending against Raymark, in both state and federal courts." (Order at 13). It found that Raymark's insurance coverage and other funds available to Raymark could not cover its potential liability.
Petitioners are plaintiffs with claims pending against Raymark in several different states. Their cases are on the eve of trial and they seek relief from the district court's order which prevents the termination of any ongoing state court litigation.
Our authority to issue a writ of mandamus pursuant to the All Writs Statute, 28 U.S.C.A. § 1651, is to be exercised only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion. In re Paradyne Corp., 803 F.2d 604, 612 (11th Cir.1986); U.S. v. Fernandez-Toledo, 737 F.2d 912, 919 (11th Cir.1984). In addition, the fact that the district court's order is clearly erroneous and has raised new and important legal issues lends support to the use of the writ. See Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977).
The petitioners here have spent years litigating in various state courts — many of their cases are on the brink of judicial resolution. They were given no notice of the proposed mandatory class certification, and they had no opportunity to present evidence in an adversarial proceeding. They have no right to an immediate appeal of the district court's decision as a final order. Williams v. City of New Orleans, 565 F.2d 874, 874-75 (5th Cir.1978). The district court's order will delay resolution of their claims indefinitely. The court's order, which essentially moves their cases back to square one, could hardly place petitioners in a more drastic predicament. Moreover, the district court's order raises important and novel questions of law. In light of these factors, we conclude that the prerequisites to issuance of the writ are met. See In re Bendectin Products Liability Litigation, 749 F.2d 300, 303-04 (6th Cir.1984) (mandamus granted to reverse erroneous class certification). See also In re Dennis Greenman Securities Litigation, 829 F.2d 1539, 1542 (11th Cir.1987) ("Parties may also seek appellate review [of an order certifying a mandatory class] through a petition for a writ of mandamus").
Initially, we note that any certification of a mandatory class in a mass tort case, especially one predominantly involving issues of liability and compensation, must be reviewed with utmost scrutiny. Such certification clearly implicates the Anti-Injunction Act.
Not only does the district court's order implicate federal/state relations, it clearly violates the individual constitutional rights of the petitioners. The court's failure to notify petitioners of the certification hearing violated due process. In In re Northern Dist. of Calif., Dalkon Shield IUD Products Liability Litigation, 693 F.2d 847 (9th Cir.1982), cert. denied sub nom. A.H. Robins, Inc. v. Abed, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983) ("Dalkon Shield"), the Ninth Circuit held that the district court erred in making a Rule 23(b)(1)(B) certification without giving out-of-state plaintiffs an opportunity to participate in prior briefings or hearings. Id. at 857. Unlike class members in cases certified under Rule 23(b)(3) who may opt out of the action and have no need for prior notice of efforts to obtain class certification, members of a mandatory class need to be provided with notice to contest the facts underlying a certification they may strenuously oppose.
In fact, the non-adversarial nature of the proceedings below almost certainly led to the premature and speculative finding that a limited fund existed. The district court did not make a finding as to the actual value of Raymark's assets. Without a finding as to the net worth of the defendant, it is difficult to see how the fact of a limited fund could have been established given that all of Raymark's assets are potentially available to suitors. Had Raymark's motion been contested, such a salient fact would almost certainly have been adduced. See In re Bendectin, 749 F.2d 300, 306 (6th Cir.1984) (method of examining relevant certification facts clearly erroneous where petitioners "were given no opportunity to dispute whether there was a limited fund"). The district court's ex parte proceeding denied petitioners their right to contest Raymark's assertions.
The district court noted that Raymark and its predecessor in interest had manufactured and sold such different sorts of items as "cloth, tape, gaskets, packings, brakelinings, and clutch facings." (Order at 2). It also listed at least four separate maladies caused by asbestos: "pleural changes, asbestosis, lung cancer, or mesothelioma." (Order at 9). Although the record on commonality and typicality of the class is sparse,
Accordingly, the petition for the writ of mandamus is GRANTED and the district court is DIRECTED to VACATE its order certifying the class and staying all related litigation.
28 U.S.C.A. § 2283.