Thursday, June 12, 2008
Today the Supreme Court decided Taylor v. Sturgell, the FOIA virtual representation case. The unanimous opinion by Justice Ginsburg unequivocally rejects virtual representation as a basis for nonparty preclusion, as Alexi Lahav noted earlier. As far as I'm concerned, the Court got it exactly right.
The D.C. Circuit had held that a plaintiff was barred by claim preclusion from pursuing his FOIA claim because he was virtually represented by an earlier plaintiff who had made an identical request, litigated, and lost. Rather than accepting the D.C. Circuit's multi-factor approach, the Supreme Court carefully listed and explained each of the possible bases for nonparty preclusion -- the exceptions to the principle that only parties are bound by a judgment -- and why they do not apply based on the record in the case.
For those interested in nonparty preclusion as it relates to mass litigation, one of the most interesting passages addresses the problem of de facto class actions:
An expansive doctrine of virtual representation, however, would "recogniz[e], in effect, a common-law kind of class action." That is, virtual representation would authorize preclusion based on identity of interests and some kind of relationship between parties and nonparties, shorn of the procedural protections prescribed in Hansberry, Richards, and Rule 23. These protections, grounded in due process, could be circumvented were we to approve a virtual representation doctrine that allowed courts to "create de facto class actions at will."
Slip Op. at 19 (quoting Tice v. American Airlines, 162 F.3d 966, 972, 973 (7th Cir. 1998)). The Court also drew comparisons to bankruptcy and probate, in which nonparties may be bound pursuant to a statutory scheme with its own justifications, constraints, and protections. This was a point that several colleagues and I emphasized in our amicus brief and that I mentioned in a previous blog entry: the law offers numerous ways to bind multiple persons to a judgment, but such joinder or representation must be accomplished ex ante and with appropriate procedural protections, not ex post through the backdoor of preclusion.
The Court ultimately remanded for a determination of whether the second plaintiff was suing as an agent on behalf of the first plaintiff, in which case claim preclusion might apply (this sort of remand seemed likely based on the oral argument), but that's a different and less mischievous idea than the virtual representation theory applied by the D.C. Circuit.