Epstein

Opinion by Judge O’SCANNLAIN; Concurrence by Judge WIGGINS; Dissent by Judge THOMAS.

ORDER

The opinion filed on October 22, 1997, and reported at 126 F.3d 1235 (9th Cir.1997), is withdrawn, and the attached opinion filed in its place.

OPINION

We reconsider our decision in this case which is still before us on remand from the United States Supreme Court.

In 1992, the United States District Court for the Central District of California entered summary judgment against plaintiffs-appellants (“the Epstein appellants”). In Epstein v. MCA, Inc., 50 F.3d 644 (9th Cir.1995) (“Epstein /”), we reversed the District Court, and held, among other rulings, that because it released exclusively federal claims, a Delaware state judgment was not entitled to full faith and credit. In Matsushita Electric Industrial Co., Ltd. v. Epstein, 516 U.S. 367 , 116 S.Ct. 873 , 134 L.Ed.2d 6 (1996) (“Matsushita”), the Supreme Court reversed our decision in Epstein I and remanded for proceedings con *643 sistent with its opinion. On remand we again held, in Epstein v. MCA, Inc., 126 F.3d 1235 (9th Cir.1997) (“Epstein II”), that the Delaware state judgment was not entitled to full faith and credit. We…

dissenting:

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997) heralded a new era of judicial scrutiny of class action certification and settlement. The majority opinion marks a significant retreat from that philosophy, sanctioning a class settlement obtained without any record evidence that the class representatives were even members of the class. Because the Delaware judgment extinguished .the rights of absent class members without affording them due process of law, I respectfully dissent.

I

Before hedging its bet by reaching the merits, the majority first concludes that we are precluded from deciding the due process questions presented to us because the Supreme Court has already done so. The opening passage of Matsushita Electric Industrial Co., Ltd. v. Epstein, 516 U.S. 367 , 116 S.Ct. 873 , 134 L.Ed.2d 6 (1996) belies this:

Id. at 369 , 116 S.Ct. 873 .

The Court further explained:

Id. at 379 n. 5, 116 S.Ct. 873 (1996).

If the majority’s recognition of the scope of its holding were not already plain, Justice Ginsburg’s partial concurrence makes it pellucid:

Id. at 389 , 116 S.Ct. 873 .

The nuances that the majority strains to draw…

concurring:

I concur in the result of Judge O’Scann-lain’s majority opinion. I write separately to explain why I changed my vote in this appeal.

The long history of this case evinces the complexity of the issues involved. In our original disposition, we found that the Delaware judgment was not a bar to further prosecution of the federal action under the Full Faith and Credit Act, 28 U.S.C. § 1738 . See Epstein v. MCA, Inc., 50 F.3d 644 (9th Cir.1995). The Supreme Court reversed, concluding that the Delaware judgment was entitled to full faith and credit even if it released claims within the exclusive jurisdiction of the federal courts. See Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367 , 116 S.Ct. 873 , 134 L.Ed.2d 6 Matsushita”). Following remand, we were presented with the issue that is the subject of this appeal.

After our initial consideration of this appeal, I joined Judge Norris’ well-written opinion. See Epstein v. MCA, Inc., 126 F.3d 1235 (9th Cir.1997). We found that the adequacy of representation issue was left open by the Supreme Court and was not fully and fairly litigated in state court. See id. at 1237-48 . Proceeding to the merits of the adequacy of…