“Nothing too much,” warned the Delphic oracle. To the defendant that obtains a denial of class certification, serial relitigation of class certification and its attendant expenses and threat of inconsistent judgments present a maddening prospect. If certification is granted, absent class members who do not opt out of the class are bound by the class proceedings. And an order denying class certification has full preclusive effect against the named plaintiffs: They cannot relitigate the denial of class certification. But may a denial of class certification preclude one or more members of a putative uncertified class from seeking to obtain certification of the same class in another court? Should the result depend on whether the counsel behind the relitigation initiative represented the prior plaintiff? Vacating an injunction entered under the “relitigation exception” of the Anti-Injunction Act, a unanimous Supreme Court in Smith v. Bayer Corp.1 recently held that a federal court denial of class certification is not a proper basis to enjoin absent members of the uncertified class from seeking certification of the same class in state court.
Bayer substantially clarified the preclusive effect of class certification proceedings by drawing a firm line between orders granting and denying certification. The Court acknowledged the “heads-I-win, tails-you-lose” aspect of a rule permitting absent putative class members of an uncertified class to seek relitigation of the same certification question considered and rejected by a prior court, but determined that limitations on non-party preclusion require that defendants turn to stare decisis and comity among courts for relief. This column assesses the effect of Bayer, and whether it leaves defendants any room to secure injunctive relief against serial relitigation of a class certification denial.
‘Bayer’
