Clermont on Class Certification's Preclusive Effects

Kevin Clermont (Cornell) has posted a draft of his forthcoming PENNumbra piece, Class Certification's Preclusive Effects, on SSRN.  Here's the abstract:

In September 2010, the Supreme Court granted certiorari in the controversial Baycol litigation. The central question will be whether, subsequent to a denial of class certification, preclusion can prevent an absentee from seeking to certify another class action on a similar claim. This Article answers that question in the affirmative, while warning that the preclusion is very limited in scope. It arrives at this answer by analogizing to the established doctrine of jurisdiction to determine no jurisdiction.

His first paragraph nicely lays out the issue he's addressing:

A federal court denies certification of a plaintiff class action, thereby declaring the absentees to be nonparties. One of those absentees then brings a class action on a similar claim in a different jurisdiction with an identical class-action rule, provoking the common defendant to invoke res judicata. Is the issue of certifiability subject to collateral estoppel? Academics might say "no," on the ground that res judicata normally does not bind nonparties. But the courts generally answer "yes," on the thought that no reasons sufficiently justify retrying the same issue as long as the class representative adequately represented the absentee in the certification attempt. Now the U.S. Supreme Court stands poised to enter the fray via the controversial Baycol case. (footnotes removed)

The case that Kevin's discussing is In re Baycol Prods. Litig., 593 F.3d 716 (8th Cir.), cert. granted sub nom., Smith v. Bayer Corp., 131 S. Ct. 61 (2010).  The Eighth Circuit held that the "non-parties" were precluded from relitigating the question of class certification because their interests were adequately represented.  Accordingly, it enjoined the plaintiffs from trying to relitigate class certification in West Virginia state court.  Here's a link to a previous post on the case.

ECB