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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Supreme Court Hands Loss to Bayer, But Good Opinion to Defendants

Posted in Motions Practice

Earlier today, the Supreme Court issued its opinion in Smith v. Bayer Corp. In a unanimous opinion authored by Justice Kagan, it held that a federal court cannot enjoin a state court from re-litigating a class action that had been denied certification in federal court. In doing so, it barred a tactic that defense lawyers had been using for some time: invoking the Anti-Injunction Act to bar state-court relitigation of class actions. And defense lawyers sighed and began to slump their shoulders like Charlie Brown …

… which, as it turns out, is not necessary. Because while the Court may have ruled that a federal court cannot enjoin a state court from retrying the class certification debate, its reasoning provides powerful arguments against doing so as a regular practice. 

First, the  Court based its decision in part on the fact that West Virginia’s class-action law sharply departs from federal law. (In particular, West Virginia courts had criticized various parties for invoking federal cases as authority.) Most states, however, including FloridaIllinoisMarylandTennessee, and Texas, have held that, because their state-class action rules are modeled on Rule 23, federal authority is at least persuasive. As a result, plaintiffs will have to think twice before re-filing a class action in state court. (There are even better reasons for them to think twice, discussed below.)

Second, the Court held that Smith was not precluded from re-asserting his claim because he was not a party to the previous action. Given this understanding of class actions as joinder devices (as opposed to "entities"), the Court’s result makes perfect sense. By the time the second case had been filed, it was clear that Smith was not a party to the first case. Only former named plaintiff George McCollins was. The Court’s clear statement that absent members of an uncertified class are not parties has application in a number of other debates where plaintiffs’ counsel try to convince courts to perform actions on behalf of an uncertified class.

In these circumstances, we cannot say that a properly conducted class action existed at any time in the litigation. Federal Rule 23 determines what is and is not a class action in federal court, where McCollins brought his suit. So in the absence of a certification under that Rule, the precondition for binding Smith was not met. Neither a proposed class action nor a rejected class action may bind nonparties.

It would appear, then, that in the rhetorical debate over whether a class action is an entity or a joinder device, the Court has come down clearly on the latter side. In general, that is good news for defendants.

Finally, the Court provided a strong rationale for why an injunction would not be necessary. And, in doing so, it sent lower courts a strong signal that it expects them to respect other courts’ denials of certification:

And to the extent class actions raise special problems of relitigation, Congress has provided a remedy that does not involve departing from the usual rules of preclusion. In the Class Action Fairness Act of 2005 (CAFA), 28 U. S. C. §§1332(d), 1453 (2006 ed. and Supp. III), Congress enabled defendants to remove to federal court any sizable class action involving minimal diversity of citizenship. Once removal takes place, Federal Rule 23 governs certification. And federal courts may consolidate multiple overlapping suits against a single defendant in one court (as the Judicial Panel on Multi-District Litigation did for the many actions involving Baycol). See §1407. Finally, we would expect federal courts to apply principles of comity to each other’s class certification decisions when addressing a common dispute.

(Emphasis added.) In other words, if counsel did try the transparent tactic of filing a new, identical class action in state court, the defendant could remove it and then move to strike class allegations on comity grounds.