Full opinion text
ORDER MYRON H. THOMPSON, Chief District Judge: This lawsuit, filed in 1970 on behalf of a class of Alabama funeral homes, has clung to life with a tenacity which, if it could be matched by humans, would undoubtedly have obviated the need for the “burial insurance” that has been the subject of contention in the case for over 20 years. Despite a final consent decree entered in 1977, the cause is now again before the court on a motion for relief from judgment, brought pursuant to Federal Rule of Civil Procedure 60(b)(4) by several holders of such burial insurance policies issued by defendant Liberty National Life Insurance Company. Movants specifically assert that several key provisions of the 1977 consent decree are “void” as to them and other similarly situated absent members of a class of policyholders because it was entered without providing adequate prior notice to them, in violation of their rights to procedural due process. Liberty National has objected, claiming that the Rule 60(b) motion is due to be denied as a matter of law. The court has stayed discovery pending a determination of the legal sufficiency of the Rule 60(b) motion. For the reasons explained below, the court finds that, even accepting movants’ allegations as true, they were not denied due process in the adoption of the 1977 consent decree. Accordingly, the court concludes that the Rule 60(b) motion should be denied. I. A. The Burial Policies Liberty National began issuing burial insurance policies to residents of Alabama in 1944. Individuals purchasing such insurance were obligated to make small weekly payments for a number of years until their policies were paid in full. In return, Liberty National contractually agreed to provide certain funeral benefits to the policyholder on the event of her death. The benefits available depended in part on which of the three types of burial policies the deceased had selected. The most common policy, whose “retail value” Liberty National represented to policyholders as being $300, was one that guaranteed the purchaser a wooden casket. The second category of policies, with a retail value of $600, provided instead for a metal casket. Third and finally, the company also marketed policies under which the insured would receive and be buried in a “vault.” The retail value of almost all of the vault policies was $100. A substantial proportion of the vault policies specified that the insured would be provided a certain type of metal or concrete vault. These were not the only variations among the types of burial insurance sold by Liberty National; under the two varieties of casket policies, Liberty National also promised to furnish such merchandise and services as a burial suit or dress, embalming and preparation of the deceased’s remains, use of the funeral parlor, assistance in conducting the service, use of a funeral coach to carry the deceased’s family, and transportation of the remains within certain distances. However, holders of vault policies were not entitled to receive such funeral services in addition to the vault. As a result, many if not most of those persons who had purchased a vault policy had also bought a burial policy of some sort to supplement it. Despite the use of the phrase “retail value” in the policies, benefits equivalent to those guaranteed by each policy usually could be purchased at retail from a funeral home only at a price greater than the retail value of the policy. In other words, the family of an uninsured deceased would likely have had to pay a funeral home more than $300 to obtain a casket and other funeral benefits identical to the ones guaranteed an insured under Liberty National’s $300 wooden casket policy. The difference was greatest in the case of the vault policies; at the time of the 1977 consent decree, it appeared that the “$100” vault described in the vault policies was being sold at retail by funeral directors for approximately $200 to $300. In order to satisfy its obligations under these policies, Liberty National contracted for its wholly-owned subsidiary, Brown-Service Funeral Homes Company, Inc., to provide such funeral benefits. Brown-Service, in turn, maintained agreements with various funeral directors throughout Alabama, which obligated the directors to furnish merchandise and services to Liberty National policyholders at stipulated prices to be paid by Brown-Service. Accordingly, policyholders could only obtain benefits under their policies from such “authorized” funeral homes. Thus, if the family of a deceased insured opted to use an unauthorized funeral home, they would receive only a casket under the casket policies, and no benefits whatsoever if the deceased had held only a vault policy. Moreover, were a policyholder to die outside Alabama or more than 35 miles from the nearest authorized funeral director, she would be entitled under the terms of the policy only to the cash equivalent of a percentage of her policy’s retail value, 50% in most cases involving casket policies. None of the burial policies, however, directly addressed the issue, later to be sharply disputed, of Liberty National’s obligations in the event that the family of a deceased policyholder requested from an authorized funeral home merchandise or services beyond those guaranteed under the policy. Such a contingency, known as an “oversale,” occurred in more than 80% of the funerals of individuals covered by Liberty National burial policies, usually where the family selected a more expensive casket than that provided for by the burial insurance. The practice in the funeral industry in Alabama prior to this litigation was for a funeral home to provide a credit in the event of an oversale, usually in the amount of the retail value of the burial policy. However, despite this custom, Liberty National and the movants, much like the parties to the original litigation, sharply disagree about what the scope of the company’s legal obligations were when an oversale occurred prior to the 1977 consent decree. According to Liberty National, it was at most required to provide a cash payment or credit equal to one-half the retail value of the policy, as it did in cases in which the policyholder died out of state or more than 35 miles from an authorized funeral director. However, movants have taken the position that, where a family opted for a more expensive funeral than the one provided for under the deceased’s burial policy, Liberty National was legally obligated to allow a credit for the retail value of the items oversold—usually the casket—and to furnish all other merchandise or services guaranteed under the policy. Prior to the 1977 consent decree, the parties to the original litigation sharply disagreed as to the exact nature of Liberty National’s contractual liability under the vault policies. Although it appeared to be a common practice for funeral directors to transport and install vaults provided under the burial policies for free or for a nominal charge, the parties disputed whether such a service was in any respect covered under the policies. Moreover, because some of the vault policies referred to a specific type of vault and others referred simply to a $100 vault or a vault with a value of $100, there was also apparently some disagreement as to whether the holder was entitled to a vault of the kind valued at $100 at the time he purchased the policy, or, because the price of vaults had since increased, a vault of lesser quality, valued at $100 at the time of his death. By 1970, two years prior to the time Liberty National ceased selling this form of funeral benefit policy, 50% of the persons who died each year in Alabama were covered by such policies, and the vast majority of Alabama funeral homes maintained contractual relationships with Brown-Service. See Battle v. Liberty National Life Ins. Co., 493 F.2d 39, 45 (5th Cir.1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975). By 1977, when final judgment was entered in this case, approximately 3.5 million such policies were outstanding, owned by about 1.5 million Alabamians. Liberty National’s total liability on these policies was in the neighborhood of $1.5 billion. B. The Original Lawsuit Discontented with the control over the funeral industry exercised by Liberty National and Brown-Service and the limited profitability of providing funerals to burial policyholders, a class of authorized and unauthorized funeral home owners filed suit against both companies in 1970. In Battle, et al., v. Liberty National Life Ins. Co., et al., CV 70-H-752-S, the owners charged these defendants with violating federal antitrust statutes and sought both damages and injunctive relief. The complaint in Battle accused Liberty National and Brown-Service of price fixing, monopolizing trade, and engaging in illegal tying arrangements, in violation of the Sherman Act, 15 U.S.C.A. §§ 1 and 2, and the Clayton Act, 15 U.S.C.A. § 14. The funeral homes sought approximately $200 million in damages and systemic injunctive relief against Liberty National and Brown-Service. A suit by funeral home owners virtually identical to Battle, Holman, et al., v. Liberty National Life Ins. Co., et al., CV 76-H-0813-S, was initiated in this court in June 1976. Between 1970 and 1977, the Battle case was extensively litigated. In 1972, the third in a trilogy of class actions against Liberty National and Brown-Service, this one on behalf of burial policyholders, was filed in this court. Styled Campbell, et al. v. Liberty National Life Ins. Co., et al, CV 72-H-569-S, the complaint essentially reiterated the antitrust claims presented in the Battle suit, arguing that policyholders had suffered injury from defendants’ antitrust violations through higher prices charged by funeral directors. In addition, the Campbell plaintiffs charged defendants with fraud, on the basis that the actual amount paid by Brown-Service to a funeral director for the benefits conferred under any of the burial policies fell far short of the stated “retail value” of such a policy. With respect to their antitrust claims, the policyholders requested the same extensive injunctive relief as the plaintiffs in Battle, and also sought $60 million in treble antitrust damages. As for the fraud claims, the complaint in Campbell asked that Liberty National and Brown-Service be required to: (1) “reveal to prospective purchasers of burial insurance ... the amounts actually paid out by defendants under said policy”; (2) “return a part of the premium to plaintiffs and ... [reduce] all future premiums ... in accordance with service and materials rendered under the policies”; (3) “amend[ ]” the policies “to provide for payment of cash benefits in the face amount” of the policies “in lieu of requiring beneficiaries ... to accept the funeral and burial services” specified in the policies; and (4) pay policyholders “punitive and compensatory damages” in the amount of $60 million. Shortly before Campbell was filed in this court, a similar action by policyholders, Johnson v. Liberty National Life Ins. Co., was initiated against the same defendants in the Circuit Court of Conecuh County, Alabama. Although that suit, like Battle, was actively pursued through discovery and other preliminary proceedings, the Campbell suit lay dormant until 1975, when defendants filed a “Motion to Determine Propriety of Class Action Under Rule 23(c)(2).” In this motion, Liberty National and Brown-Service opposed the certification of a plaintiff class, but argued, in the alternative, that if the case was to proceed as a class action, then Federal Rule of Civil Procedure 23 required that the named plaintiffs and their counsel provide notice of the suit by first class mail to all members of the class of policyholders, estimated at 2 million persons. Asserting that the companies could, with reasonable effort, compile and furnish the plaintiffs with a listing of the names and addresses of all such policyholders, Liberty National and Brown-Service concluded that the court should refuse to certify a plaintiff class unless the named plaintiffs and their counsel indicated they were prepared to assume the expense, estimated at $400,000, of providing mail notice to the policyholder class. At a hearing on this motion, counsel for the policyholder class asked the court to stay the Campbell case for three months, pending further proceedings in Battle. The court apparently issued no ruling on either the plaintiffs’ or the defendants’ motions. C. The Settlement In 1977, attorneys for Liberty National and Brown-Service and attorneys for the funeral director classes and the policyholder classes initiated settlement negotiations covering all of these lawsuits. In September 1977, they entered into an agreement to settle the three actions pending in this court, Battle, Holman, and Campbell, and dismiss with prejudice the state court case, Johnson. Proeedurally, this compromise provided that the federal lawsuits would be consolidated and two temporary settlement classes created, one consisting of the funeral home owners and the other of burial policyholders. The substantive provisions of the proposed settlement require some discussion because they are both complex and crucial to the claims raised in the Rule 60(b) motion now before the court. First, the agreement generally provided the funeral home owners with much of the injunctive relief requested in the various suits and aimed at loosening the control Liberty National and Brown-Service had previously exercised over the merchandise and services the funeral homes offered and the prices they charged. Most significantly, the two companies agreed to allow any funeral home that met basic health and other state regulatory standards to service its burial policies—in other words, to become an “authorized” funeral home. The settlement also called for Liberty National and Brown-Service to pay a sizable amount in attorney’s fees to plaintiffs’ counsel in the various lawsuits. Furthermore, and most salient to the court’s present inquiry, the agreement clarified or reformed the liabilities of Liberty National and Brown-Service, the corresponding rights of casket and vault policyholders, and, by extension, the obligations of authorized funeral directors to customers in the case of funerals covered by burial insurance. First, it resolved the uncertainty that had attended “oversales” by adopting what had been the customary practice; thus the settlement provided that in the event the family of a deceased policyholder chose more expensive merchandise or services than were available under a policy, the funeral director would charge the family for all such funeral benefits, but discount the retail value of the policy. Second, the settlement provided that holders of vault policies would be entitled not to an actual vault, but only to a cash payment equal to the retail value of the policy, regardless of where they died or whether their funeral was handled by a home affiliated with Brown-Service. Pursuant to the settlement agreement, the court consolidated the four lawsuits described above under the heading of Battle, established two temporary settlement classes consisting, respectively, of funeral directors and burial policyholders, and tentatively approved the agreement pending a fairness hearing. The settlement agreement had essentially left the issue of notice to members of the funeral director and policyholder class in the hands of the district judge. Accordingly, the court certified the funeral director class under Federal Rule of Civil Procedure 23(b)(3), determined that the names and addresses of the approximately 350 members of this class could be “ascertained through reasonable efforts,” and that the “best notice practicable” to the funeral directors was “written notice by mail.” As for the policyholder class, the court determined that it met the requirements of Rule 23(b)(2), that it included more than one million members whose “names and addresses cannot be ascertained through reasonable effort,” and that the “best notice practicable” for such policyholders would be “written notice” to be delivered by each agent of Liberty National in the course of the agent’s regular weekly visits to collect premiums from policyholders, for a period of four consecutive weeks beginning at least 45 days prior to the fairness hearing. The court, however, did not address the question of notice to “paid-up” policyholders who were no longer required to tender weekly premiums to Liberty National and who, as result, no longer received visits from the company’s agents. The court approved a five-page notice of the settlement, which was subsequently distributed by Liberty National agents to policyholders during collection visits and other, additional contacts with those class members who were still paying premiums on their burial policies. This notice summarized the nature and history of the Iitigation, informed policyholders that the parties had agreed to a settlement, described its major provisions, and informed class members that they could file written objections to the settlement with the court and orally offer comments on the agreement at the fairness hearing, whose time and place were specified in the notice. Specifically, the notice contained the following information about the settlement term regarding “oversales”: “If funeral merchandise and services are purchased for the burial of the deceased insured, in addition to such services and merchandise as provided in the policy, the policyholder shall receive credit on the funeral bill for the full retail value of the benefits stated in the policy.” As for the agreement on the rights of vault policyholders, the settlement stated: “Liberty National shall be required to perform the vault policies by paying in cash the retail value thereof stated in the policy in lieu of furnishing the vault otherwise provided.” Finally, the notice informed recipients that if the proposed settlement were approved, a judgment would be entered foreclosing all claims “asserted or which might have been asserted in this class action.” Unlike members of the funeral director class, policyholders were not afforded the chance to opt out of the settlement class. Although the court’s order provided for no formal notice by publication, several televisions stations and newspapers ran stories on the settlement prior to the fairness hearing. However, these reports varied widely in the degree to which they accurately communicated the relevant provisions of the settlement. Moreover, with one exception, all the stories on the settlement were printed or broadcast in Birmingham, although members of the policyholder class resided throughout the state. Both before and after the December 1977 fairness hearing, the court received and considered objections to the settlement by over 1,400 policyholders. Most of these class members were represented by one of two attorneys, each of whom also orally presented comments about the agreement to the court at the hearing. In addition, counsel representing the various parties to the litigation addressed the court and the approximately 200 persons in attendance at the hearing, with respect to the history of the litigation, the process by which an agreement was reached, and the substance of the settlement. A number of the policyholders in the audience later presented complaints and questions about the settlement to the court. Of the various written and verbal communications to the court, several dealt directly with the oversale provisions of the settlement, and many more were directed to the alteration in the rights of vault policyholders. In January 1978, the court approved the settlement and entered final judgment in accordance with its provisions. In this judgment, the court found that the agreement reached by the attorneys was fair and reasonable to the policyholders, enumerated the various advantages of the settlement to the class members, and determined that the class satisfied the requirements of Rule 23. The court specifically indicated that the class was properly certified under Rule 23(b)(2), that the absent members were adequately represented, and expressed the opinion that delivery of notice via Liberty National agents, together with media coverage of the case, had succeeded in providing notice to approximately 90% of the policyholder class. D. The Collateral Attack in State Court The present dispute arises out of the funerals of James J. and Laura F. Taylor and David A. Elrod. Both the Taylors and Mr. Elrod had completed payments on their burial insurance at the time this litigation was settled in September 1977. Because Liberty National agents no longer called on them and they did not see any of the news stories regarding the settlement that were published or broadcast in Birmingham, they received no actual notice of the settlement. Mrs. Taylor purchased a $250 wooden casket policy from Liberty National in 1938, and supplemented it in 1955, transforming her policy into one for a $500 metal casket. Her husband bought similar insurance in 1946 and 1955, as a result of which he was covered under a $600 metal-casket policy. Mr. Taylor died in February 1982, and was followed by his wife in February 1983. Upon the death of each of their parents, the Taylors’ children selected a more expensive casket than the one provided for in the burial policies. The charges for Mr. Taylor’s funeral totalled over $1,600, from which the funeral home allowed a credit of $600, the value of the deceased’s burial policies. The expenses for Mrs. Taylor’s funeral eclipsed this figure, amounting to over $3,000. Again, the funeral home offered the children only a $500 discount, the retail value of Mrs. Taylor’s policies. A similar scenario unfolded upon the death of David A. Elrod, who was also covered by Liberty National burial insurance. The funeral director selected by his widow, Annie J. Elrod, charged over $1,700 for the funeral, crediting her only with the $600 retail value of his casket policy. In 1983 and 1984, the Taylors’ estate and children and Mr. Elrod’s estate and widow brought suit against Liberty National in the Circuit Court for Limestone County, Alabama. These actions challenged the refusal of the company and the funeral homes in question to provide the benefits to which these plaintiffs claimed the decedents had been entitled in the event of an oversale, namely, all the services specified in the policy and a credit for the retail value of the casket promised in the policy. Liberty National asserted the res judicata effect of the final judgment in Battle as a defense to each of these suits, claiming that both the company and the funeral homes in question had fully performed the burial policies held by the Taylors and Mr. Elrod by offering a credit for the retail value of the policies. These pleadings provided the Taylors’ children and Mrs. Elrod their first notice of the settlement in Battle. The Elrod suit and another similar case also brought in 1984, Carroll v. Liberty National Life Ins. Co., were both removed by the company from the Circuit Court of Limestone County to this court. In the two lawsuits brought by the Taylors’ children, the circuit court granted summary judgment in favor of Liberty National on the basis of the judgment in Battle. On appeal, the Alabama Supreme Court, in a 4-2 decision, reversed the Circuit Court’s ruling in the Taylor cases, holding that because the Taylors had not received adequate notice of the Campbell lawsuit or its settlement as part of the consolidated action in Battle, they had been denied due process and, for this reason, were not bound by the 1977 final judgment. See Taylor v. Liberty National Life Ins. Co., 462 So.2d 907 (Ala.1984). The Supreme Court also suggested that the policyholder class from Campbell was included in the Battle settlement as a result of a collusive effort by Liberty National and the funeral directors to settle their own differences by extracting unconscionable, unrequited concessions from the policyholders. Id. Within two weeks of the Alabama Supreme Court’s decision in Taylor, Liberty National petitioned this court, in Battle, to enjoin prosecution of the Taylor, Elrod, and Carroll state court cases, on the ground that all four actions were barred by the res judicata effect of the final judgment in Battle. In response, the plaintiffs in these three cases defended the Supreme Court’s decision in Taylor, suggested that this court lacked authority to enjoin state proceedings, and reiterated the due process arguments they had raised in state court. In March 1985, this court entered a preliminary injunction barring the Taylors from further prosecuting their two lawsuits against Liberty National. The court first determined that as a federal court it was not bound by the Alabama Supreme Court’s determination of the res judicata effect of the final judgment in Battle, and that the Anti-Injunction Act, 28 U.S.C.A. § 2283, did not prevent it from enjoining these state court proceedings because such an injunction was necessary to effectuate the final judgment. Next, the court dismissed the issue of whether the policyholder class in Battle was denied due process as irrelevant to the merits of Liberty National’s injunction request, although acknowledging that the Taylors and others similarly aggrieved could raise such contentions in this court in a Rule 60(b) attack on the final judgment in Battle Finally, apparently considering itself compelled to respond in some fashion to the Alabama Supreme Court’s sharp condemnation of the process and substance of the Battle settlement, this court opined that the policyholder class in that case had properly been certified under 23(b)(2), that the absent members had received more than adequate notice, and, contrary to the Supreme Court’s suggestion that the settlement class was “surreptitiously created,” that there was no evidence that a fraud of any sort had been perpetrated on the court. In May 1987, this court extended the injunction to the Elrod and Carroll cases and rendered it permanent, reiterating much of the discussion from its earlier order, including its comments on the immateriality of the due process dispute to the injunction question and its willingness to entertain a Rule 60(b) motion attacking the final judgment on due process grounds. Battle v. Liberty National Life Ins. Co., 660 F.Supp. 1449, 1458 (N.D.Ala.1987) (Hancock, J.). In July 1989, the Eleventh Circuit affirmed the injunction, but concluded its opinion by observing that the district court explicitly invited the state plaintiffs to make their due process challenge in federal court pursuant to a Fed.R.Civ.P. 60(b) motion or through an independent action. Their due process challenge is not foreclosed; it simply must be brought in the forum which has lived with this case for nearly two decades. Battle v. Liberty National Life Ins. Co., 877 F.2d 877, 883 (11th Cir.1989). E. The Rule 60(b)(4) Motion Their path into state court effectively blocked at this juncture, the Taylors’ children and Mrs. Elrod took up the mantle of this court’s suggestion by filing before it, in February 1990, a motion for relief from the Battle judgment pursuant to Rule 60(b)(4). This provision allows a party to be freed from the binding effect of a judgment determined to be “void.” The motion specifically requested that the court dissolve the 1987 injunction barring the movants from proceeding with their state court lawsuits against Liberty National. These movants presented three separate attacks on the 1977 final judgment, each of which they sought to certify as a class action on behalf of similarly situated policyholders. Several of the movants, including Mrs. Elrod and two of the Taylor children, claimed to have both a derivative interest in the Battle judgment, as heirs of policyholders, and a direct interest, as policyholders themselves. First, movants asserted that they and other absent members of the policyholder class in Battle whose burial insurance was completely paid for at the time of the September 1977 settlement were not bound by the subsequent judgment, on the ground that the court’s failure to provide them with notice abridged their due process rights. Second, the Taylors’ children and Mrs. Elrod alleged that the oversale provision of the Battle judgment was void as to all the absent policyholders because the notice delivered during collection visits by Liberty National agents was “incomplete and misleading” as to the effect of this arrangement on the rights of policyholders, and because the court did not afford them the right to opt out of the lawsuit. Third and finally, one of the Taylors’ children claimed that she and other holders of vault policies had also been denied due process because the notice distributed by Liberty National agents failed to explain adequately the import of the change in the rights of vault policyholders contemplated by the settlement. It is important to note that although the movants have at various points impugned the representation provided to the policyholders by the named plaintiffs and especially the class counsel who negotiated the Battle settlement, the movants have not challenged the 1977 final judgment on the theory that the policyholders were denied due process because they did not receive adequate representation. Liberty National subsequently filed an "objection” to the Rule 60(b) motion, and moved for a protective order to prevent the Taylors’ children and Mrs. Elrod from proceeding with discovery. Treating Liberty National’s “objection” as a motion to dismiss, the court stayed discovery, pending a determination of the legal sufficiency of the Rule 60(b) motion. Movants and Liberty National have presented the court with extensive briefs, appendices containing all the relevant documents and court records covering the 20-year history of this litigation, and oral argument. II. A. Threshold Issues Liberty National and the other non-movants have offered three arguments as to why the court should deny the Rule 60(b) motion without reaching the merits of the due process issues: delay, law of the case, and lack of standing. However, none of these arguments need detain the court long. i. Delay The company asserts that the movants are barred from attacking the final judgment because of inexcusable delay. Liberty National points out that even if the Taylors’ children and Mrs. Elrod had no notice of the Battle settlement at the time it was entered, they learned of it in 1984 through the company’s pleadings in the state court lawsuits. Furthermore, this court’s preliminary and permanent injunction orders in 1985 and 1987 specifically directed movants’ attention toward the availability of the Rule 60(b) avenue. Nevertheless, they did not file such a motion until 1990, 13 years after the final judgment. Relying on the requirement that a Rule 60(b) motion be made “within a reasonable time,” Liberty National contends that such a lack of “diligence” lends a sufficient basis to deny the motion summarily. The court rejects this assertion by the company for two reasons. First, the court does not believe that movants displayed a lack of diligence or otherwise sat on their rights. Indeed, they have repeatedly pressed their due-process claims since Liberty National raised the Battle judgment as a res judicata bar to their state court actions. Although this court and the Eleventh Circuit ultimately determined that they had chosen the wrong forum in which to resolve this dispute, there is no evidence that movants were guilty of bad faith or purposeful delay in exhausting such other avenues before bringing their 60(b) motion. Second and more importantly, however, it is well established that a motion under Rule 60(b)(4), challenging a judgment as “void” for lack of due process, is neither governed by the “reasonable” time requirement nor subject to the equitable doctrine of laches, but rather may be brought at any time, at least absent “exceptional circumstances ... difficult to imagine.” Bludworth Bond Shipyard v. M/V Caribbean Wind, 841 F.2d 646, 649 & n. 6 (5th Cir.1988). Accord In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir.1985); Pacurar v. Hernly, 611 F.2d 179, 181 (7th Cir.1979); Austin v. Smith, 312 F.2d 337, 343 (D.C.Cir.1962); 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2862 at 197-98 (2d ed. 1986). Indeed, not only is a court normally precluded from denying a Rule 60(b)(4) motion as untimely, but, more broadly speaking, it has no discretion to refuse to grant the motion if it determines that the judgment is in fact void because of a failure of due process. Bludworth, 841 F.2d at 649; Thos. P. Gonzalez Corp. v. Consejo Nacional de Produccion De Costa Rica, 614 F.2d 1247, 1256 (9th Cir.1980); Austin, 312 F.2d at 343; 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2862, at 197 (2d ed. 1986). Further, whether the movant possessed a meritorious claim or defense on the merits of the underlying action is irrelevant to the Rule 60(b)(4) determination. Broadcast Music, Inc. v. M.T.S. Enterprises, 811 F.2d 278, 280 (5th Cir.1987); 7 J. Moore, Moore’s Federal Practice, 1160.25[1], at 60-224 (1991). See also Peralta v. Heights Medical Center, 485 U.S. 80, 86-87, 108 S.Ct. 896, 900, 99 L.Ed.2d 75 (1988) (“Where a person has been deprived of ... due process, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits”) (internal quotation omitted). ii. Law of the Case Liberty National next argues that further consideration of movants’ due-process claims by this court is barred by the “law of the case” doctrine. See In re Justice Oaks II, Ltd., 898 F.2d 1544, 1550 n. 3 (11th Cir.), cert. denied, — U.S.-, 111 S.Ct. 387, 112 L.Ed.2d 398 (1990). According to the company, this court determined in the 1977 final judgment that the policyholders had been provided adequate notice, and also considered and rejected the present movants’ due-process contentions when it entered a preliminary and permanent injunction against their state court lawsuits in 1985 and 1987. However, the court now concludes that the company’s law of the case defense to the Rule 60(b) motion also lacks merit. As for the 1977 final judgment, it is true that the court concluded that sufficient notice had been provided to the policyholder class. However, it is well established that a court adjudicating a dispute ordinarily cannot predetermine the res judicata effect of its own judgment, but rather that this can only be tested in a subsequent proceeding. Gonzales v. Cassidy, 474 F.2d 67, 74 (5th Cir.1973); 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure, § 1789 at 245 (2d ed.1986); Federal Rule of Civil Procedure 23, Supplementary Note of Advisory Committee on 1966 Amendment. This is especially true where claims of due process are involved. See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). Although the right of a party to attack collaterally the jurisdiction of a court that entered judgment against her may properly turn on whether she previously directly challenged jurisdiction and lost, compare Gould v. Mutual Life Ins. Co., 790 F.2d 769, 774 (9th Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 580, 93 L.Ed.2d 582 (1986), with Watts v. Pinckney, 752 F.2d 406, 410 (9th Cir.1985), an absent class member who mounts a meritorious due-process challenge to a class judgment—in other words, who, like the movants in this case, claims she was functionally excluded from a proceeding because she received inadequate notice and was afforded no right to control the conduct of her personal cause of action—will, by definition, not have had an opportunity in the initial litigation to be heard on the issue of due process. Just as she is not bound by any decision on the merits, she is, for the very same reason, not bound by the initial court’s determination that she received due process. Liberty National also suggests that the court’s 1985 and 1987 injunction orders, arising from proceedings at which movants were directly involved, are law of the case on the issue of whether they together with the original policyholder class received sufficient notice. However, the court’s rendition of the relevant statements by it and the Eleventh Circuit in section 1(D) of today’s order makes clear that not only did neither this court nor the Eleventh Circuit resolve the merits of movants’ due-process claims in the injunction proceedings, but, indeed, both courts explicitly indicated that the Taylors’ children and Mrs. Elrod were free to raise such claims through a Rule 60(b)(4) motion. See also In re Real Estate Title & Settlement Services Antitrust Litigation, 869 F.2d 760, 764 & n. 1 (3rd Cir.), cert. denied, 493 U.S. 821, 110 S.Ct. 77, 107 L.Ed.2d 44 (1989). Compare Fontana v. Elrod, 826 F.2d 729, 732 (7th Cir.1987). iii. Standing Rule 60(b) entitles “a party or a parly’s legal representative” to seek relief from a final judgment. Rideout’s, a member of the funeral home class in Battle which has joined Liberty National in opposing the Rule 60(b) motion now before the court, contends that the Taylors’ children and Mrs. Elrod lack standing to collaterally attack the final judgment in Battle because they were neither parties nor representatives in the original litigation. Contrary to this argument, however, the court believes that the movants do have standing to bring a Rule 60(b) challenge. First, the court has, in another order entered today, granted their motion to intervene formally in the Battle case, pursuant to Rule 24; thus, even technically speaking, the Taylors’ children and Mrs. Elrod are now parties to the lawsuit. Second, the court previously included them as parties to the case during the 1985 injunction proceedings. Third and most importantly, as persons whose “rights were directly affected by the final judgment,” they fit within the category of individuals with standing under Rule 60(b). See Kem Mfg. Corp. v. Wilder, 817 F.2d 1517, 1520-21 (11th Cir.1987). B. The Merits i. Notice of the Action and the Right to Opt-Out In the ordinary civil case, due process demands, at a minimum, that notice and an opportunity to be heard must be provided to any party whose liberty or property interests may be adversely affected by the proceeding. Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 484-86, 108 S.Ct. 1340, 1344-45, 99 L.Ed.2d 565 (1988); Peralta v. Heights Medical Center, 485 U.S. 80, 84-85, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The Supreme Court has repeatedly emphasized that such notice must be provided by a means and in a form “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Pope, 485 U.S. at 484, 108 S.Ct. at 1344, quoting Mullane, 339 U.S. at 314, 70 S.Ct. at 657. This requirement applies equally to defendants, see Peralta, 485 U.S. at 81-85, 108 S.Ct. at 897-99, as well as to parties who may be characterized as potential plaintiffs. See Pope, 485 U.S. at 484-85, 108 S.Ct. at 1344-45 (creditor with claims against an estate as to probate proceeding); Adams, 462 U.S. at 792-95, 103 S.Ct. at 2708-09 (mortgagee of real property as to sale of , mortgaged property for nonpayment of taxes); Mullane, 339 U.S. at 307-09, 70 S.Ct. at 654-55 (beneficiaries of common trust fund as to judicial settlement of accounts by trustee). Any party who is not provided with such notice of a proceeding and an opportunity to be heard will not be bound by a judgment that results from the proceeding. See Peralta, 485 U.S. at 85-86, 108 S.Ct. at 899-900; Adams, 462 U.S. at 800, 103 S.Ct. at 2712. Thus a defendant who was denied due process may avoid being subject to damages or other coercive relief ordered in a judgment, and a potential plaintiff whose rights to notice and an opportunity to be heard were similarly abridged will be free to litigate in a later proceeding issues that were decided adversely to him, or that could have been but were not presented, in the earlier suit. One long-recognized exception to these principles is that a judgment in a class action may bind members of the class who did not receive the kind of notice and opportunity to be heard that would be required to render them “parties” to the suit in the traditional sense, provided that their interests were adequately represented. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 808, 105 S.Ct. 2965, 2973, 86 L.Ed.2d 628 (1985); Hansberry v. Lee, 311 U.S. 32, 43, 61 S.Ct. 115, 118-19, 85 L.Ed. 22 (1940). See also 3 H. Newburg, New-burg on Class Actions § 13.41, at 81-82 (1985). Although this exception is firmly established, its parameters are not; both before and after the 1966 amendments to Rule 23 which vitalized the class-action device, the doctrine on the preclusive effect of class-action judgments has been uncertain and changing, principally because of the very difficulty raised by the Rule 60(b)(4) motion now before the court: that of determining the exact extent to which due process permits the representation of an absent member’s interests in a particular class suit to substitute for actual notice and an opportunity to be heard. After close scrutiny of the case law in this area, and careful consideration, the court concludes that the guiding standard is one recognized by the drafters of the present version of Rule 23: “In the degree that there is cohesiveness or unity in the class and the representation is effective, the need for notice to the class will tend toward a minimum.” Federal Rule of Civil Procedure 23, Supplementary Note of Advisory Committee on 1966 Amendment. Applying this test to movants’ three challenges to the proceedings that culminated in the settlement in Battle, the court further concludes that, even accepting the factual allegations of the Taylors’ children and Mrs. Elrod as true, the notice provided by the court prior to the 1977 final judgment was sufficient, under the due process clause, to bar them from relitigating their over-sale and “actual vault” claims. The notice rules contained in Rule 23 were established to guide courts in protecting the due-process rights of absent plaintiffs and affording the maximum possible preclusive effect to class judgments. See Federal Rule of Civil Procedure 23, Supplementary Note of Advisory Committee on 1966 Amendment; In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088, 1101 n. 14 (5th Cir.1977). These rules are premised on this notion that the less the interests of individual members coincide with those of other members or the representatives, the greater will be the class notice demanded by due process. Thus in addition to uniformly requiring a certain threshold degree of identity among the claims of the representatives and absent members and insisting that the named parties and class counsel “fairly and adequately protect the interests of the class,” Rule 23 applies different notice requirements to different kinds of cases and even to different phases of the same case, depending upon the characteristic degree of unity or cohesiveness among the plaintiffs. First, in class suits of a type in which the interests of the named plaintiffs and the various absent members would be unlikely to diverge—the most prevalent being those maintained under Rule 23(b)(2), where the defendant has acted “on grounds generally applicable to the class” and the main focus of the suit is injunctive or declaratory relief “with respect to the class as a whole”— Rule 23 vests district courts with discretion as to whether to provide notice of the litigation to the class and, if so, by what means. See Rule 23(d)(2) (court may require, “for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action”); Johnson v. General Motors, 598 F.2d 432, 436-37 (5th Cir.1979); In re Temple, 851 F.2d 1269, 1272 n. 5 (11th Cir.1988). See also Guthrie v. Evans, 815 F.2d 626, 628 (11th Cir.1987); Fontana v. Elrod, 826 F.2d 729, 732 (7th Cir.1987). Second, because the settlement process even in a Rule 23(b)(2) class action is more susceptible than adversarial adjudications to abuse by the representatives to the disadvantage of the class, Rule 23(e) mandates that some form of notice of a class settlement in such a case be afforded to absent members before the settlement is approved by the district court. See Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir.1983); Simer v. Rios, 661 F.2d 655, 664 (7th Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982). Third and finally, in that category of class suits in which “the interests of the individuals in pursuing their own litigations” may be particularly “strong”—where the plaintiff class is certified under the less stringent standard of Rule 23(b)(3) on the basis that questions of law or fact “common” to the members “predominate” over questions affecting only individual members—Rule 23(c)(2) mandates that, as with parties to non-class suits, absent plaintiffs without exception be given “the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Federal Rule of Civil Procedure 23, Supplementary-Note of Advisory Committee on 1966 Amendment. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176-178 & n. 14, 94 S.Ct. 2140, 2152 & n. 14, 40 L.Ed.2d 732 (1974). Furthermore, Rule 23(c)(2) also demands that class members in such a case be afforded and informed that they have a right to “opt out”—to exclude themselves from the class and the lawsuit. Id.; Federal Rule of Civil Procedure 23, Supplementary Note of Advisory Committee on 1966 Amendment. That the true measure of the notice required by due process is the cohesiveness or unity of the class is demonstrated even more clearly by the analysis employed by courts confronted with a challenge by a class member to the preclusive effect of a class judgment in a case certified as a Rule 23(b)(2) action. The law in this circuit is that such claims cannot be resolved simply by determining whether the action as a whole was properly maintained under Rule 23(b)(2)—and therefore notice was discretionary with the court—or should instead have been certified as Rule 23(b)(3) actions with notice provided as required by Rule 23(c)(2). Rather, the due-process inquiry focuses more specifically on the substantive claim or request for relief that the absent member now seeks to litigate or relitigate; if it involves individual, usually monetary, relief, then it will not be barred unless he was provided with notice and a chance to opt-out of the prior proceedings. See Holmes v. Continental Can Co., 706 F.2d 1144, 1155 (11th Cir.1983) (notice required to preclude absent member in employment discrimination class action from subsequently asserting individual back-pay claim); Johnson v. General Motors Corp., 598 F.2d 432, 437 (5th Cir.1979) (same). However, such notice and opt-out rights are not required with respect to initial proceedings on pattern-and-practice liability or on injunctive or declaratory relief; thus a plaintiff will be barred from relitigating these issues even though he was afforded no notice or chance to exclude himself from the class. See Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986). The special treatment accorded back-pay claims in Holmes and Johnson turned on the heterogeneity and lack of cohesiveness among the class members with respect to such claims. Requests for equitable relief normally involve “class claims, claims resting on the same grounds and applying more or less equally to all members of the class.” Holmes, 706 F.2d at 1155 (emphasis in original). Thus in such proceedings, the “substantial cohesion of [the class members’] interests makes it likely that representative members can adequately represent the interests of absent members and that the need for and interest in individual representation will be minimal.” Id. at 1155 n. 8, quoting Note, Notice in Rule 23(b)(2) Class Actions for Monetary Relief: Johnson v. General Motors Corp., 128 U.Pa.L.Rev. 1236, 1252-53 (1980). Accord Johnson, 598 F.2d at 437 (notice discretionary in equitable relief phase of (b)(2) case because “plaintiff group” likely to be “cohesive” and thus “the due process interests of absent members will usually be safeguarded by adequate representation alone”). In contrast, requests for back pay, not necessarily because they involve monetary relief but because they are “atypical” and “directly related to the disparate merits of individual claims [rather than] generally applicable to the claims of the class as a whole,” are more likely to give rise to “heterogeneous” classes “pregnant with potential tensions and interest-antagonisms between class members.” Holmes, 706 F.2d at 1154-57. Indeed, the court in Holmes specifically relied on the divergent character of the back-pay claims in that case, noting that the lawsuit “involves a finite and relatively small lump sum fund that must be divided among a relatively large class,” and thus concluding that “[a]llocation of this fund is a zero sum situation: a gain to one party entails a corresponding loss for the other parties.” Id. at 1160. The court took care to distinguish such a situation from a “back pay class in which all members are affected equally by a settlement,” which, the court observed, “would, of course, be sufficiently homogeneous to obviate any need for an opt out protection.” Id. at 1158. See Federal Rule of Civil Procedure 23, Supplementary Note of Advisory Committee on 1966 Amendment (observing that “[subdivision (b)(2) is not limited to civil-rights cases. Thus an action looking to specific ... relief could be brought by a numerous class of purchasers ... against a seller” who sold goods to them at an illegal “pricing differential”). See also Scott v. City of Anniston, Ala., 682 F.2d 1353, 1358 (11th Cir.1982). For these reasons, in Holmes and Johnson, both of which, like Battle, involved class settlements, the court concluded that “due process required individual notice” and the right to opt-out “before the personal pecuniary claims of absent class members could be barred, even though the case had been certified under (b)(2).” Holmes, 706 F.2d at 1157. Accord Johnson, 598 F.2d at 438. Thus, with regard to the Rule 60(b)(4) motion now before the court, the court must examine how cohesive the policyholder class was in Battle in order to determine the kind and degree of notice to which due process entitled the absent members. As Holmes and Johnson instruct through their focus on the specific back-pay claims raised by absent members in those cases, the court need not ultimately address here whether the final judgment in Battle is void in the abstract or its entirety, nor must it determine the complete extent of that judgment’s preclusive effect on the Taylors’ children and Mrs. Elrod. Rather, the only matter squarely and properly presented by the Rule 60(b)(4) motion now before the court is whether the 1977 final judgment bars movants from relitigating state law claims concerning, one, their rights as casket policyholders—or heirs of such policyholders—in the event of an over-sale, and, two, in the case of one of the Taylor children, her right as a vault policyholder to receive an actual vault. Movants have offered no indication that they wish to litigate the antitrust claims or any other claims that were advanced or could have been advanced by policyholders in Battle. Accordingly, the court will not render an advisory opinion about whether the final judgment’s disposition of these matters violated movants’ due-process rights. After close examination of the factual and legal nature of the oversale and “actual vault” issues resolved by the Battle settlement—and raised again in movants’ state-court suits—the court is convinced that the interests of the absent policyholders in that case, both with respect to each other and the named plaintiffs, were extremely cohesive. As detailed in section 1(A) of this order, all the Liberty National casket policies held by class members were virtually identical in their terms and conditions, the only distinctions being between the wooden casket policies and the more expensive metal casket ones, and between paid-up policyholders and those who were continuing to make payments on their burial insurance. Furthermore, the overwhelming majority of funerals covered by such insurance involved oversales. It is true that the practical effect of the over-sale provision of the settlement on policyholders and their heirs was to be monetary in nature, in the sense that it would determine the actual dollar value of the policy in the event of an oversale, and thus the money owed to the funeral director for a particular combination of funeral merchandise and services. However, at the time of the settlement, the agreement to allow an oversale credit for the face value of a casket policy—or for that matter, any uniform, across-the-board solution to the over-sale dispute—did not discernibly affect one policyholder differently from another. None of the plaintiffs’ claims was characterized by any special or unique factual or legal twists. Each member of the class shared an equal interest in obtaining maximum oversale rights: ideally, the more valuable package of rights claimed by movants, a casket credit coupled with free provision of the services guaranteed in the policy, but in any event certainly more than the zero credit that the funeral directors and Liberty National were prepared to argue was proper under the language of the policies. Although the settlement was, like any, a compromise between these extremes, it was in no sense—nor could it have been, given the common nature of the oversale issue—a trade-off of the interests or preferences of some plaintiffs against those of others. Thus understood, the oversale issue in Battle resembled the claims for injunctive or declaratory relief in Holmes and Johnson rather than the individual back-pay claims in those cases. Each policyholder’s oversale claim was identical in Battle, in contrast to the differing amounts of money involved in the various employees’ back-pay claims in Holmes and Johnson. Also importantly, back-pay claims, if settled, normally involve allocation of a fund which results in a “a zero sum situation” where “a gain to one party entails a corresponding loss for other parties.” Holmes, 706 F.2d at 1160. On the other hand, the oversale issue in Battle, from the start, lent itself to a uniform settlement according to which the various policyholder’s oversale rights could be governed by the same rule, rather than fixed at different monetary levels; in other words, “relief with respect to the class as a whole” was "appropriate” in the case of the oversale issue. Federal Rule of Civil Procedure 23(b)(2). This same kind and degree of cohesiveness characterized the vault policyholders interests with respect to the “actual vault” issue resolved in Battle, Each insured’s claim was identical, and any relief granted in the way of reforming the policyholders’ rights would inevitably have involved class relief, affecting the absent members generally rather than as individuals. For these reasons, the court concludes that the burial policyholders were not entitled under the due process clause to Rule 23(b)(3)-type notice—individual notice and the right to opt-out. The court need not determine, however, that no notice at all would have been constitutionally adequate in these circumstances. Suffice it to say that the notice provided by the court in 1977—individual notice to policyholders still making payments and certain “media” notice in the Birmingham area—was enough to subsequently bind this 23(b)(2)-type plaintiff class as to any oversale or “actual vault” claims, consistent with due process. See Johnson, 598 F.2d at 436-37; Bogard v. Cook, 586 F.2d 399, 408 (5th Cir.1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979); Fontana, 826 F.2d at 732; 3B J. Moore, Moore’s Federal Practice 1123.55 at 23-417 (2d ed. 1990). Because such notice was appropriately designed not to afford absent members the chance to exclude themselves from the class, but rather to inform them of the pendency of the action and permit them to challenge the representation by the named plaintiffs and class counsel or to otherwise intervene, the fact that paid-up policyholders did not receive notice did not frustrate this purpose. See Federal Rule of Civil Procedure 23(d)(2). Because such policyholders shared the same interests as those who did receive notice, the latter could adequately speak for them vis-a-vis the named plaintiffs and class counsel. See In re Agent Orange Product Liability Litigation, 818 F.2d 145, 168-69 (2d Cir.1987), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 647 (1988). Had the Battle litigation proceeded to trial and the challenged final judgment been the result of such an adversarial proceeding, the court could at this point conclude its analysis of movants’ due-process contentions. However, the fact that the 1977 judgment emerged from a settlement among the parties triggered another notice prerequisite under the due process clause, different from the notice constitutionally required to inform an absent class, however cohesive, of the pendency of an action: the obligation of the court to insure that class members receive notice of and the right to object to the settlement. The Taylors’ children and Mrs. Elrod claim that the notice provided prior to the court’s approval of the 1977 settlement was constitutionally inadequate, both in its scope, because of the failure to direct notice to paid-up policyholders, and in its content, because it was misleading and incomplete. The court now turns its attention to these issues. ii. Notice of the Settlement and the Right to Object As the court explained previously, settlement represents one of the three categories of class action “situations” in which Rule 23 provides for notice to the class. The nature and degree of notice required by Rule 23(e) and due process—which the court assumes are identical for the purposes of this case—is calibrated to the degree of disunity and divergent interests that is presumed to attend class settlements, and the accompanying risk that the named plaintiffs and class counsel may "ompromise the interests of the class in arriving at a settlement that serves their own purposes. See Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir.1983); Simer v. Rios, 661 F.2d 655, 664 (7th Cir.1981). See also M. Weber, Preclusion and Procedural Due Process in Rule 23(b)(2) Class Actions, 21 U.Mich.J.L. Reform 347, 388-89 (1988). Because this divergence of interests and risk of unfairness lies somewhere between that associated generally with the litigation of suits involving, on the one hand, cohesive classes, and on the other, classes characterized by individual, distinct interests,