dissenting:
Because I wholeheartedly agree with the Supreme Court’s determination that the ádequaey of representation issue was fully and fairly litigated and necessarily decided in the Delaware courts, I must respectfully dissent from the opinion this court announces today. In fashioning its own version of the events as they unfolded before the Delaware courts, the majority posits that the plaintiffs’ adequacy claims were neither “actually litigated” before the Chancery Court nor “finally decided” by that court. With all deference, I believe that the undisputed facts tell a different story.
I
The argument urged upon us by the Epstein plaintiffs certainly engenders sympathy and has some force. Irrespective of whether the Delaware attorneys’ conduct in the state court rose to the level of constitutional deprivation, their act of referring, in a single breath, to their own clients’ claims as “fraught with uncertainty,” “weak,” and “horrendous” suggests less than dynamic advocacy. Regrettably, however, and unlike my colleagues, I do not believe that we are in a position to pass judgment on the merits of this appeal. The very issue presented to our court for decision today — whether or not the Epstein plaintiffs received constitutionally adequate representation in the Delaware courts — has been fully and fairly litigated before a state court of competent jurisdiction and finally decided by that court. Consequently, under the Full Faith and Credit Act, 28 U.S.C. § 1738, and the policies of federalism, comity, and finality that give it life, our court is not, in my mind, free simply to revisit the issue.
I do agree with my colleagues that the Supreme Court did not conclusively resolve the due process issue before it remanded the case to us. Indeed, as our court’s opinion points out, the Supreme Court specifically disclaimed any interest in resolving the merits of the inadequacy claim. See Matsushita Elec. Indus. Co. v. Epstein, — U.S. -, -n. 5,116 S.Ct. 873, 880 n. 5, 134 L.Ed.2d 6 (1996). However, the fact that the Supreme Court chose not to reach the due process challenge does not inexorably lead to the conclusion that this court may decide the issue. Quite the contrary, after reviewing the record, the Supreme Court concluded — in three separate passages and in no uncertain terms — that the Delaware courts had already conclusively resolved the due process issue. First, in Part I, in which it described the procedural posture of the ease, the Court stated, rather matter-of-factly, that “[ajfter argument from several objectors, the [Chancery] Court found the class representation adequate____” Id. at-, 116 S.Ct. at 876 (emphasis added). Several pages later, the Court reiterated its conclusion: citing the decisions of the Delaware courts approving the second MCA settlement, the Supreme Court specifically found that the Chancery Court, in accordance with Delaware Court of Chancery Rule 23, had “determined that the plaintiffs[,] ... as representatives of the Settlement Class, have fairly and adequately protected the interests of the Settlement Class.” Id. at-, 116 S.Ct. at 880 (quoting Order and Final Judgment at 2, In re MCA, Inc. Shareholders Litig., C.A. No. 11740, 1993 WL 43024 (Del.Ch. Feb. 22, 1993)) (in*1257ternal quotation marks omitted) (emphasis added). Finally, in its now famous footnote five, the Court expressed its skepticism at plaintiffs’ decision even to press the due process issue “in spite of the Chancery Court’s express ruling, following argument on the issue, that the class representatives fairly and adequately protected the interests of the class.” Id. at-n. 5, 116 S.Ct. at 880 n. 5 (emphasis added).
Consequently, it is scarcely debatable that in the eyes of the Supreme Court, the Epstein plaintiffs’ due process challenge was presented to and rejected by the Delaware state courts. The trouble, I suppose, is that the majority and the Supreme Court do not share the same vision.
A
In support of its “no-actual-litigation” argument, the majority first complains that, despite the fact that the form of notice sent to class members explicitly provided the rights to opt out and to object,1 that notice “said nothing about adequacy of representation.” Maj. Op. at 1240. Of course, the first, most obvious, and most decisive response to the majority’s complaint is that the doctrine of collateral estoppel simply does not demand that an issue be actually noticed for argument, only that it be actually litigated at argument. See, e.g., Messick v. Star Enter., 655 A.2d 1209, 1211 (Del.1995) (“The test for applying collateral estoppel requires that (1) a question of fact essential to the judgment, (2) be litigated and (3) determined (4) by a valid and final judgment.” (quoting Taylor v. State, 402 A.2d 373, 375 (Del.1979))). Secondly, even if lack of notice were somehow independently relevant to a proper collateral estoppel analysis, the court’s no-notice argument fails to account for the fact that the form of notice mailed to each of the class members detailed the precise terms of the settlement. The very terms of that settlement — so pungently characterized by the majority as “a bare 2 a share, inclusive of attorney fees” and a release of all claims, state and federal — are prima facie evidence that something was amiss. See Maj. Op. at 1252-53. That fact — that the settlement on its face raises eyebrows — was no less true on October 27, 1992, when the notice was mailed, than our court finds it today. Consequently, the Epstein plaintiffs “were not forced into a position of having to predict whether their interests would be adequately represented. They could determine whether there had been adequate representation of their interests by reviewing the terms of the settlement.” Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1177 (9th Cir.1977); accord In re Four Seasons Sec. Laws Litig., 502 F.2d 834, 843 (10th Cir.1974). They knew that they could object in the Delaware courts to the settlement, and, by implication, to the representation that had produced the settlement; they simply declined to do so.2
Closer to the heart of the appropriate collateral estoppel standard, the court claims— inexplicably, in my view — that the objectors who did elect to appear at the settlement hearing did not “actually litigate” the adequacy of their representation. To the contrary, one of the objectors, William Krupman, explicitly stated (as the majority itself acknowledges) that he opposed the settlement because “the purported class representatives ... had proposed a settlement that benefitted no one but their own attorneys. They did not provide adequate representation to the class.” Affidavit of William A. Krupman at 2 — 3, In re MCA, Inc. Shareholders Litig., Civ. A. No. 11740, 1993 WL 43024 (Del.Ch. Feb. 16, 1993) (emphasis added). The majority attempts to cushion the blow of Mr. Krupman’s explicit statement by accusing it of “conflating the non-constitutional question of the fairness of the settlement with the constitutional question of the adequacy of representation.” Maj. Op. at 1241. Its criticism, however, rings particularly hollow for one salient reason, alluded to *1258briefly above: the court s own conclusion of inadequacy rests substantially on precisely the same logic, namely, that, under the terms of the settlement, the Delaware plaintiffs’ attorneys who profited so well did so at the expense of their class-member clients. See generally Maj. Op. at 1250-55.
The majority dismisses the arguments of another of the objectors, Pamela Minton de Ruiz, out of hand because she failed to use the magic word “inadequacy.” Rather, the court notes, Minton de Ruiz “framed her objection in terms of collusion.” Maj. Op. at 1240 (emphasis added). The court simply brushes Minton de Ruiz’s objection aside because, it complains, she did not “focus[ ] on the much broader issue of whether representation was constitutionally adequate.” Maj. Op. at 1240. Formalistic labels and logic games3 aside, however, it appears that the court has either failed to recognize for itself or failed to admit to itself that the Epstein plaintiffs bottom their inadequacy of representation argument on virtually the identical factual predicate upon which Minton de Ruiz based her “collusion” objection. For instance, the Delaware Chancery Court characterized Minton de Ruiz’s argument in the following terms:
She argues ... that the Delaware plaintiffs have colluded with the defendants to settle this action and dispose of the supposedly meritorious federal claims in exchange for an award of attorneys’ fees and a de minimis benefit to the class.
In re MCA, Inc. Shareholders Litig., Civ. A. No. 11740, 1993 WL 43024, at *3 (Del.Ch. Feb.16, 1993). When one compares Minton de Ruiz’s contention with one of the plaintiffs’ central arguments from their opening brief in this appeal, the perceived distinction between “inadequacy of representation” and “collusion” quickly begins to fade:
Delaware counsel — paid only on a contingency basis — had no incentive other than to “compromise” other litigants’ substantial federal claims. Counsel knew that, if they settled the federal claim they would get paid; if they attempted to litigate, they would get nothing. Such a one-sided incentive structure is surely a constitutionally disabling conflict of interest____
Appellants’ Opening Brief at 27 (emphasis in original). And once one recognizes that even this court’s own inadequacy holding invokes the very same attorney-client antagonism, the majority’s effort to obscure substantive identity in semantic minutiae is laid bare:
Matsushita ... knew that class counsel had an extraordinary incentive to settle and settle quickly because that was the only way they could extract a fee out of the federal claims.
... Indeed, the misalignment of interests and incentives between class counsel and their clients in these circumstances was so great that it is fair to say that counsel’s interests were more in line with the interests of Matsushita than those of their clients.
Maj. Op. at 1250 (emphasis in original). In sum, try as it may to “label away” objector Minton de Ruiz’s argument, the fact remains that a rose by any other name is still a rose: in this case, as the court’s opinion amply demonstrates, the primary reason that the class representatives were alleged to have been inadequate was the self-interested and, dare I say, collusive, conduct of the Delaware class attorneys.
B
In addition to holding that the inadequacy issue was not “actually litigated” in the Delaware system, this court cites Prezant v. De Angelis, 636 A.2d 915 (Del.1994), and suggests that the Delaware courts did not “finally determine” the question of inadequacy in a manner consistent with Delaware law. Maj. Op. at 1241 n. 6. Again, I must agree with the United States Supreme Court’s assessment that the available evidence counsels otherwise. In Prezant, the Delaware Supreme Court announced the following holding: “[I]n every class action settlement, the Court of Chancery is required to make an explicit determination on the record of the propriety of the class action according to the requisites of Rule 23(a) and (b),” including the mandate that class representation was *1259adequate. Prezant, 636 A.2d at 925. Contrary to the majority’s suggestion, the Vice Chancellor in this case specifically made the “explicit determination” contemplated by Prezant, when he declared that “it is ... hereby determined that the plaintiffs in the Actions, as representatives of the Settlement Class, have fairly and adequately protected the interests of the Class.... ” Order and Final Judgment at 2, In re MCA, Inc. Shareholders Litig., Civ. A. No. 11740, 1993 WL 43024 (Del.Ch. Feb. 16,1993). His “determination,” I submit, could not have been more “explicit.” What is more, the Delaware Supreme Court — the very court that issued the Prezant guidelines — entertained additional argument on the inadequacy matter, and expressly and unanimously affirmed the Chancery Court’s determination that the class had been adequately represented. See In re MCA, Inc. Shareholders Litig., No. 126,1993, 1993 WL 385041, at *1 (Del. Sept. 21, 1993).4
In sum, I conclude, as did the United States Supreme Court, that the question of adequate representation (1) was actually litigated before the Delaware Chancery Court and (2) was decided by that court in a valid and final judgment. Although the plaintiffs in this action were not themselves present before the Vice Chancellor, their grievances were ably litigated through them surrogates, objectors Krupman and Minton de Ruiz. Moreover, as the settlement notice made explicit, the plaintiffs themselves were presented with a “full and fair opportunity” to participate personally in the settlement hearing if they so desired. Consequently, under long-established principles of Delaware preclusion law, I believe that the Delaware courts would give collateral estoppel effect to the Chancery Court’s judgment and would forbid plaintiffs from relitigating the merits of the inadequacy issue. See Messick v. Star Enter., 655 A.2d 1209, 1211 (Del.1995); Evans v. Frank E. Basil, Inc., 1986 WL 3973, at *2 (Del.Super.Ct. Mar. 20, 1986). Pursuant to the plain — and now universally acknowledged — meaning of the Full Faith and Credit Act, 28 U.S.C. § 1738, we must do the same. See Matsushita, — U.S. at-, 116 S.Ct. at 877 (“The Act ... directs all courts to treat a state court judgment with the same respect it would receive in the courts of the rendering state.”); accord Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 1331-32, 84 L.Ed.2d 274 (1985); Migra v. Warren City Sch. Dist., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481—22, 102 S.Ct. 1883, 1897-98, 72 L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415-16, 66 L.Ed.2d 308 (1980).
II
As to the majority’s last-gasp invocation of Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985), to deny the Delaware judgment issue preclusive effect, I most emphatically protest. The court cites Shutts in support of its per se rule that class settlement objectors — such as Krupman and Minton de Ruiz — may never, consistent with the Due Process Clause, finally litigate absent class plaintiffs’ rights to adequate representation. Shutts simply cannot, in my view, bear the weight of such an extreme interpretation.5 The concerns that *1260impelled the Shutts Court’s recognition of the prerogative of absent plaintiffs generally to “sit back and allow the litigation to run its course,” Shutts, 472 U.S. at 810, 105 S.Ct. at 2974, plainly are not in play in this case.
The Shutts Court was motivated by a concern for fairness to parties who, without the right to “sit back,” might be forced to forfeit their claims altogether. The Shutts Court found that in light of financial constraints, some plaintiffs, if forced to litigate their own claims, might “have no realistic day in court.” Id. at 809, 105 S.Ct. at 2973. However, as the following colloquy, which occurred during oral argument before the Supreme Court, makes clear, the Epstein plaintiffs (quite unlike the “absent” class plaintiffs in Shutts) absented themselves from the Delaware fairness hearing not for financial reasons, but for tactical reasons:
[COURT]: What about the argument that you should have come into Delaware to make [the inadequacy of representation] objection and not stayed out of it?
[COUNSEL]: ... If we stayed out ... we knew that we could make collaterally the attack on lack of adequate representation [and] due process____
Transcript of Oral Argument at 47, Matsushita Elec. Indus. Co. v. Epstein, — U.S. -, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996). Wfiiat is more, the Epstein plaintiffs lost absolutely nothing by not attending the settlement hearing. As they sat idly by, content in the notion that they had preserved then-right collaterally to attack the Delaware judgment, their substantive arguments were, as detailed above, simultaneously being presented by objectors Krupman and Minton de Ruiz. (Indeed, this fact very likely was known to the Epstein lawyers, in light of objector Krupman’s lawyer’s admission that his client’s objection had originally been drafted by the attorneys representing the Epstein plaintiffs.)
The Epstein plaintiffs have managed, quite literally, to have their cake and eat it too. They now get two bites at the proverbial apple. Today, this court not only condones such gluttony, it constitutionalizes it. We are constantly reminded that “no single model of procedural fairness, let alone a particular form of procedure, is dictated by the Due Process Clause.” Kremer v. Chemical Constr. Corp., 456 U.S. 461, 483, 102 S.Ct. 1883, 1898, 72 L.Ed.2d 262 (1982). Rather, “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). For the court to have co-opted the salutary principle announced in Shutts and applied it in rote fashion to the facts of this case undermines, in my view, the very concept of due process of law.
Ill
The majority seeks to hush Matsushita’s “alarmist cry” that the opinion announced today “will sound the death knell to finality in class actions if individual objectors cannot bind absentees on the issue of adequate representation.” Maj. Op. at 1242. The court rejects Matsushita’s argument as “hyperbole.” Maj. Op. at 1242. To allay Matsushita’s fears, the court directs its attention to the following passage in the Delaware Supreme Court’s opinion in Prezant:
[The approach we announce today] will serve to benefit both class members and defendants. Class members ... will ... have their interests protected by the requirement that their claims cannot be compromised without ... a judicial determination that the Rule 23 criteria have been satisfied.... Such a determination will include a finding that their due process right to adequate representation has in fact been satisfied. Defendants will be protected from a possible collateral attack on the validity of the settlement by a class member claiming the settlement did not meet the requirements of Rule 23. This protection will help insure that the final release sought by defendants in settlements is indeed final.
Prezant, 636 A.2d at 925 — 26. I sincerely doubt that the court’s reassurance is of any consolation whatsoever to Matsushita or to other potential class action defendants. If anything, it is a source of consternation. Matsushita, after all, did precisely what the Prezant court (and now this court) instructed it to do: It asked for and got a judicial finding — an “express ruling,” in the words of the United States Supreme Court — that the *1261representation of the plaintiff class had been constitutionally adequate. Curiously, today this court tells both Matsushita and the Delaware judiciary that; alas, they did not do enough.
Because I believe that today’s decision not only threatens finality, but also contravenes “the elementary principles of federalism and comity,” Growe v. Emison, 507 U.S. 25, 35, 113 S.Ct. 1075, 1082, 122 L.Ed.2d 388 (1993), that animate the Full Faith and Credit Act, I respectfully dissent.
. A number of the class plaintiffs exercised their procedural rights pursuant to the notice: eighteen shareholders opted out of the class, and three class members appeared in the Delaware Chancery Court to object to the settlement. See In re MCA, Inc. Shareholders Litig., Civ. A. No. 11740, 1993 WL 43204, at *3 (Del. Ch. Feb. 16, 1993).
. I might add that the Epstein plaintiffs’ counsel’s candid admission to the Supreme Court that his clients stayed out of the Delaware proceedings for purely strategic reasons, see infra page 1259-60, is conclusive proof that any perceived notice failure was illusory.
. The majority would have us read Minton de Ruiz’s objection as if it belonged in a Venn diagram: "All collusion is inadequacy; some inadequacy is collusion....”
. The majority accuses' the Delaware Chancery Court of failing properly to support its conclusion of adequacy, citing language from the Prezant opinion suggesting that a court should “articulate on the record its findings regarding the satisfaction of the Rule 23 criteria and supporting reasoning in order to facilitate appellate review.” Prezant, 636 A.2d at 925. Even if I believed that the quoted language represented the holding of the Delaware Supreme Court— which I do not, see Goodrich v. E.F. Hutton Group, Inc., 681 A.2d 1039, 1045 (Del.1996) (reaffirming that the "essential” requirement recognized in Prezant is "a judicial determination that the adequate representation requirement of Rule 23(a)(4) has been satisfied”) — I believe that the Chancery Court discharged its responsibility of articulating the reasons for its holding; it found that although the objectors had alleged that the settlement was collusive, "[suspicion ... is not enough.” In re MCA, Inc. Shareholders Litig., Civ. A. No. 11740, 1993 WL 43024, at *5 (Del.Ch. Feb. 16, 1993); see also Youngman v. Tahmoush, 457 A.2d 376, 381 (Del.Ch.1983) (suggesting that, under Delaware law, the party challenging the adequacy of the class members’ representation bears the burden of demonstrating inadequacy). That finding was specifically affirmed by the Delaware Supreme Court.
. It is certainly worthy of note, in this respect, that the majority itself recognizes that the Third Circuit's recent, post-Shutts, decision in Grimes v. Vitalink Communications Corp., 17 F.3d 1553 (3d Cir.1994), patently rejects such view. Maj. Op. at 1242.