BREYER, J., dissenting

I need not go into further detail here. Findings of Fact ¶¶ 347-354 explain why the alleged conflict between pre- and post-1959 claimants is not significant. Id., at 415a-418a (noting that "the decision as to how to divide the settlement among class members" did not take place until after the Trilateral Agreement was agreed to, at which point money was available equally to both pre- and post-1959 claimants). Findings of Fact ¶¶355-363 explain why the alleged conflict between claimants with, and those without, current illnesses is not significant. Id., at 419a-422a (explaining why “the interest of the two subgroups at issue here coincide to a far greater extent than they diverge"). The Fifth Circuit found that the District Court "did not abuse its discretion in finding that the class was adequately represented and that subclasses were not required." 90 F. 3d, at 982. This Court should not overturn these highly circumstance-specific judgments.

C

The majority's third condition raises a more difficult question. It says that the "whole of the inadequate fund" must be "devoted to the overwhelming claims." Ante, at 839 (emphasis added). Fibreboard's own assets, in theory, were available to pay tort claims, yet they were not included in the global settlement fund. Is that fact fatal?

I find the answer to this question in the majority's own explanation. It says that the third condition helps to guarantee that those who held the

"inadequate assets had no opportunity to benefit [themselves] or claimants of lower priority by holding back on the amount distributed to the class. The limited fund cases thus ensured that the class as a whole was given the best deal; they did not give a defendant a better deal than seriatim litigation would have produced." Ibid.

BREYER, J., dissenting

That explanation suggests to me that Rule 23(b)(1)(B) permits a slight relaxation of this absolute requirement, where its basic purpose is met, i. e., where there is no doubt that "the class as a whole was given the best deal," and where there is good reason for allowing the third condition's substantial, rather than its literal, satisfaction.

Rule 23 itself does not require modern courts to trace every contour of ancient case law with literal exactness. Benjamin Kaplan, Reporter to the Advisory Committee on Civil Rules that drafted the 1966 revisions, upon whom the majority properly relies for explanation, see, e. g., ante, at 833, 834, 842-843, wrote of Rule 23:

"The reform of Rule 23 was intended to shake the law of class actions free of abstract categories . . . and to rebuild the law on functional lines responsive to those recurrent life patterns which call for mass litigation through representative parties. . . . And whereas the old Rule had paid virtually no attention to the practical administration of class actions, the revised Rule dwelt long on this matter-not, to be sure, by prescribing detailed procedures, but by confirming the courts' broad powers and inviting judicial initiative." A Prefatory Note, 10 B. C. Ind. & Com. L. Rev. 497 (1969).

The majority itself recognizes the possibility of providing incentives to enter into settlements that reduce costs by granting a "credit" for cost savings by relaxing the whole-of-theassets requirement, at least where most of the savings would go to the claimants. Ante, at 861.

There is no doubt in this case that the settlement made far more money available to satisfy asbestos claims than was likely to occur in its absence. And the District Court found that administering the fund would involve transaction costs of only 15%. App. to Pet. for Cert. 362a. A comparison of that 15% figure with the 61% transaction costs figure applicable to asbestos cases in general suggests hundreds of mil

BREYER, J., dissenting

lions of dollars in savings-an amount greater than Fibreboard's net worth. And, of course, not only is it better for the injured plaintiffs, it is far better for Fibreboard, its employees, its creditors, and the communities where it is located for Fibreboard to remain a working enterprise, rather than slowly forcing it into bankruptcy while most of its money is spent on asbestos lawyers and expert witnesses. I would consequently find substantial compliance with the majority's third condition.

Because I believe that all three of the majority's conditions are satisfied, and because I see no fatal conceptual difficulty, I would uphold the determination, made by the District Court and affirmed by the Court of Appeals, that the insurance policies (along with Fibreboard's net value) amount to a classic limited fund within the scope of Rule 23(b)(1)(B).

III

Petitioners raise additional issues, which the majority does not reach. I believe that respondents would likely prevail were the Court to reach those issues. That is why I dissent. But, as the Court does not reach those issues, I need not decide the questions definitively.

In some instances, my belief that respondents would likely prevail reflects my reluctance to second-guess a court of appeals that has affirmed a district court's fact- and circumstance-specific findings. See supra, at 868; cf. Amchem Products, Inc. v. Windsor, 521 U. S. 591, 629–630 (1997) (BREYER, J., concurring in part and dissenting in part). That reluctance applies to those of petitioners' further claims that, in effect, attack the District Court's conclusions related to: (1) the finding under Rule 23(a)(2) that there are "questions of law and fact common to the class," see App. to Pet. for Cert. 480a; see generally Amchem, supra, at 634-636 (BREYER, J., concurring in part and dissenting in part); (2) the finding under Rule 23(a)(3) that claims of the representative parties are "typical" of the claims of the class, see App.

BREYER, J., dissenting

to Pet. for Cert. 480a-481a; (3) the adequacy of "notice" to class members pursuant to Rule 23(e) and the Due Process Clause, see id., at 511a; see generally Amchem, supra, at 640-641 (BREYER, J., concurring in part and dissenting in part); and (4) the standing-related requirement that each class member have a good-faith basis under state law for claiming damages for some form of injury-in-fact (even if only for fear of cancer or medical monitoring), see App. to Pet. for Cert. 252a; cf., e. g., Coover v. Painless Parker, Dentist, 105 Cal. App. 110, 286 P. 1048 (1930).

In other instances, my belief reflects my conclusion that class certification here rests upon the presence of what is close to a traditional limited fund. And I doubt that petitioners' additional arguments that certification violates, for example, the Rules Enabling Act, the Bankruptcy Act, the Seventh Amendment, and the Due Process Clause are aimed at, or would prevail against, a traditional limited fund (e. g., "trust assets, a bank account, insurance proceeds, company assets in a liquidation sale, proceeds of a ship sale in a maritime accident suit," ante, at 834 (internal quotation marks and citations omitted)). Cf. In re Asbestos Litigation, 90 F. 3d, at 986 (noting that Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (1985), involved a class certified under the equivalent of Rule 23(b)(3), not a limited fund case under Rule 23(b)(1)(B)). Regardless, I need not decide these latter issues definitively now, and I leave them for another day. With that caveat, I respectfully dissent.

Per Curiam

WHITFIELD v. TEXAS

ON MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

No. 98-9085. Decided June 24, 1999*

Pro se petitioner seeks leave to proceed in forma pauperis on this certiorari petition. The instant petition brings his total number of frivolous filings to nine.

Held: Petitioner's motion to proceed in forma pauperis is denied. He is barred from filing any further petitions for certiorari or extraordinary writs in noncriminal cases unless he first pays the docketing fee and submits his petition in compliance with this Court's Rule 33.1. See Martin v. District of Columbia Court of Appeals, 506 U. S. 1. Motions denied.

PER CURIAM.

Pro se petitioner Whitfield seeks leave to proceed in forma pauperis under Rule 39 of this Court. We deny this request as frivolous pursuant to Rule 39.8. Whitfield is allowed until July 15, 1999, within which to pay the docketing fee required by Rule 38 and to submit his petition in compliance with this Court's Rule 33.1. We also direct the Clerk not to accept any further petitions for certiorari or petitions for extraordinary writs from Whitfield in noncriminal matters unless he first pays the docketing fee required by Rule 38 and submits his petitions in compliance with Rule 33.1.

Whitfield has repeatedly abused this Court's certiorari and extraordinary writ processes. On March 30, 1998, we invoked Rule 39.8 to deny Whitfield in forma pauperis status with respect to a petition for certiorari. See Whitfield v. Johnson, 523 U. S. 1044. At that time, Whitfield had filed three petitions for certiorari and three petitions for extraor

*Together with Whitfield v. Texas (see this Court's Rule 12.4) and Whitfield v. Texas (see this Court's Rule 12.4), also on motions for leave to proceed in forma pauperis.