June 21, 2012
Decision of Interest on "Copycat Class Action Litigation": Smentek v. Dart (7th Cir.)
Judge Posner authored an interesting opinion this week in Smentek v. Dart (7th Cir. No. 11-3261). The case raises issues flowing from the Supreme Court’s decision last Term in Smith v. Bayer Corp., which considered—and rejected—an attempt to preclude certification of a class action based on a different judge’s refusal to certify a similar class action brought by a different class representative. From Smentek:
The Court in Smith v. Bayer Corp. suggested other means for limiting copycat class action litigation besides preclusion, and the defendants in the present case, who have petitioned us for leave to appeal under Fed. R. Civ. P. 23(f) from the grant of class certification, have fastened on one of them: “we would expect federal courts to apply principles of comity to each other’s class certification decisions when addressing a common dispute. See, e.g., Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co., 529 U.S. 193, 198 (2000) (citing Landis v. North American Co., 299 U.S. 248, 254 (1936)).” 131 S. Ct. at 2382.
After noting that the “reference to ‘comity’ in Smith v. Bayer Corp. was cryptic,” and exploring a number of potential approaches, Judge Posner concludes:
We are left with the weak notion of “comity” as requiring a court to pay respectful attention to the decision of another judge in a materially identical case, but no more than that even if it is a judge of the same court or a judge of a different court within the same judiciary. We emphasize, however, the qualification in “materially identical.” Even two class actions involving the same class may differ materially, for example in the suitability of the class representative or the adequacy of class counsel, and where they do the judge in the second, or third, or nth class action is on his own. This is not such a case; nevertheless the district judge gave plausible reasons for her disagreement with the judges in the two previous Cook County dental cases. Can more be required? The defendants’ claim that she was bound by the decisions of the other judges just because those decisions preceded and were contrary to her decision has no basis in law and flouts the principle that a district court decision does not have precedential effect. Camreta v. Greene, 131 S. Ct. 2020, 2033 n. 7 (2011); Wirtz v. City of South Bend, 669 F.3d 860, 862-63 (7th Cir. 2012). The defendants would have such decisions treated not as mere precedents but as super-precedents that no court lacking appellate authority could question.
The district judge’s grant of class certification is therefore affirmed. But this is not to say that the judge’s ruling was correct; maybe the other two judges were correct. The appeal asks us to decide only whether comity between federal district judges’ rulings on class certification is preclusive. We have decided: it is not.
(Hat Tip: Howard Bashman)