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Stephenson v. Dow Chemical Co.

Citation. 273 F.3d 249 (2d Cir. 2001)
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Brief Fact Summary.

Vietnam veterans harmed by Agent Orange after a settlement agreement was made in a class action, seek to not be bound to that class action settlement.

Synopsis of Rule of Law.

In order for a plaintiff to be bound to a class action, they must be afforded adequate representation in the class action and any class action settlement will not be binding against those lacking that representation.


 Many veterans of the Vietnam War suffered death or disability due to Agent Orange, a chemical used during the war. In the 1970’s a class action was filed where any and all potential victims of Agent Orange were able to find redressability. On the eve before the trial the parties came to a settlement for 180 million dollars. This was to pay directly to those veterans who suffered death or disability occurring before or after 1985 to 1994. The Judge sent out notice to possible class members in every avenue of notice available. In 1989 and 1990 two veterans brought suit stating that there harms occurred after the settlement was reached and so they should not be included in the class. Since payment was available to all until 1994 and the settlement agreement made its best attempts to cover future claimants, and the agreement gave an injunction against future claims, their claims were dismissed. Then in 1996 another veteran and in 1999 plaintiff Stephenson filed a similar action. Since these filings the settlement fund has depleted. The court again stated against that they were part of the class and bound to that settlement as well, and appealed.


Whether an absent class member can be bound to a class action settlement, where he can show he was not adequately represented.


No. Plaintiffs can only be bound to a class action case or class action settlement if they received adequate representation in that class action. When a class member emerges, after the trial or settlement, they are called an absent class member. To determine if that absent class member was adequately represented the court has a two prong test. First question is: was absent class members considered by the first trial judge and second question is; does it appear that the class representative adequately represented those interests? Any money award or injunction granted in such settlement will not be held for or against such plaintiffs once they show that inadequacy. The Second issue at trial is whether the plaintiffs may bring a collateral attack against the defendants. Defendants argue that such an attack would be in violation of their Due Process rights, however as the court points out, the Court historically has allowed collateral attacks in class action suits.  While the court did conclude in the suits raised in 1989 and 1990 that the plaintiffs did have adequate representation, there were still funds to be dispersed. Stephenson, is like those plaintiffs, someone with harm that developed after the settlement; however, the funds have since depleted and his suit is raised after payments were scheduled to occur which was until 1994. This court does not wish to attack or discuss the legal arguments of the case, but simply focus on the plaintiffs argument that they do not belong to that class of persons. Since they do not, the defendants may not raise a res judicata defense against Stephenson either. Res Judicata requires the case must be between the same parties. If Stephenson is not a member of that class, then he certainly is not the same party from that settlement case. While res judicata will bind absent class members, it will only do so when that absent member received adequate representation in that prior suit.






Absent Class members will only be joined if the interests of those not joined are the same of the class as the interest of those who are, and when it is considered that the later, be fairly represented the former parties in the prosecution of the litigation.

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