Avoiding Death by a Thousand Cuts: The Relitigation of Class Certification and the Realities of the Modern Class Action

• Author: Martin H. Redish & Megan B. Kiernan
• Position: Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law/J.D. Candidate, Northwestern University School of Law, 2014; A.B., University of Pennsylvania, 2008
• Pages: 1659-1690

1659

Avoiding Death by a Thousand Cuts: The

Relitigation of Class Certification and the

Realities of the Modern Class Action

Martin H. Redish & Megan B. Kiernan

INTRODUCTION .................................................................................... 1660

I. SMITH V. BAYER: A TALE OF TWO CLASS ACTIONS ............................... 1664

II. RES JUDICATA AND THE PROBLEM OF SERIAL CERTIFICATION ............. 1666

III. THE RELITIGATION OF CLASS CERTIFICATION ..................................... 1668

IV. SOLVING THE SERIAL CERTIFICATION PROBLEM BY RECOGNIZING

THE REALITIES OF THE MODERN CLASS ACTION.................................. 1669

A. TRADITIONAL RES JUDICATA AND SERIAL CERTIFICATION:

A SQUARE PEG IN A ROUND HOLE ................................................... 1669

B. THE REALITIES OF THE MODERN CLASS ACTION .............................. 1671

C. IMPLICATIONS OF THE REALITIES OF THE MODERN CLASS ACTION:

CAPITALISTIC SOCIALISM AND THE “GUARDIANSHIP” MODEL ........... 1674

D. IMPLICATIONS OF THE GUARDIANSHIP CLASS ACTION MODEL FOR

RES JUDICATA IN THE CONTEXT OF SERIAL CERTIFICATION

ATTEMPTS ..................................................................................... 1675

V. GOING TOO FAR AND NOT GOING FAR ENOUGH: THE PROBLEMS

WITH PROPOSED SOLUTIONS TO THE RELITIGATION OF CLASS

CERTIFICATION .................................................................................... 1678

A. GOING TOO FAR: THE BRIDGESTONE II SOLUTION ........................... 1678

B. NOT GOING FAR ENOUGH: THE BAYER COURT’S SOLUTION ............. 1681

VI. IMPLEMENTING THE SOLUTION ........................................................... 1687

CONCLUSION ....................................................................................... 1690

 Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University

School of Law.

 J.D. Candidate, Northwestern University School of Law, 2014; A.B., University of

Pennsylvania, 2008.

1660 IOWA LAW REVIEW [Vol. 99:1659

INTRODUCTION

The modern class action may be appropriately analogized to the

invention of fire.1 If used properly, it can significantly advance societal goals.

If misused, however, it quickly degenerates into something that causes

significant harm. In order to promote the positive aspects of the class action

while simultaneously controlling its negative tendencies, it is first necessary

to understand the class action’s true nature and the important ways in which

it departs from more traditional forms of litigation. Unfortunately, neither

scholars nor jurists have successfully undertaken this Herculean task. As a

result, class action litigation gives rise to considerably more systemic harm

than good.

In this Article, we will first discern the unique essence of the class action

and then apply our insights to one of the thornier procedural pathologies

brought about by the judicial system’s failure to recognize the class action’s

unique status. The difficulty on which we focus our analysis is the serious

problem of serial relitigation of class certification. In Smith v. Bayer Corp., the

Supreme Court was unsuccessful in its efforts to fashion a solution to this

problem because it failed to recognize the unique procedural aspects of the

class action.2 Those aspects demand treatment that fundamentally differs

from the manner in which the courts treat more traditional forms of

litigation. In Bayer, the Supreme Court decided that a “federal [district]

court [had] exceeded its authority under the ‘relitigation exception’ to the

Anti-Injunction Act” when it enjoined an ongoing state judicial proceeding

in order to “protect or effectuate” its earlier refusal to certify a class action.3

The Court held that the relitigation exception permitted only injunctions

that implemented “well-recognized concepts” of res judicata, and the district

court’s injunction did not fall within this narrow category.4

The Court’s decision in Bayer appears not to have been met with much

criticism. Indeed, on the narrowest level, at least, there was not much to

criticize. The Court merely clarified its interpretation of the relitigation

exception to the Anti-Injunction Act. On its facts, the decision is correct.5

Despite the seemingly straightforward nature of its opinion, however, the

Bayer Court clearly missed an important opportunity to devise a real solution

to a very serious problem: the inefficiency, coercion, and general unfairness

1. See MARTIN H. REDISH, WHOLESALE JUSTICE: CONSTITUTIONAL DEMOCRACY AND THE

PROBLEM OF THE CLASS ACTION LAWSUIT 1 (2009).

2. Smith v. Bayer Corp., 131 S. Ct. 2368 (2011).

3. Id. at 2373 (internal quotation marks omitted). “A court of the United States may not

grant an injunction to stay proceedings in a State court except as expressly authorized by Act of

Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

28 U.S.C. § 2283 (2012).

4. Bayer, 131 S. Ct. at 2375–76 (quoting Chick Kam Choo v. Exxon Corp., 486 U.S. 140,

147 (1988)) (internal quotation marks omitted).

5. See discussion infra Part I.

2014] AVOIDING DEATH BY A THOUSAND CUTS 1661

that invariably flow from serial attempts to relitigate the issue of the

certifiability of a class action against the same defendant.

Normally, a defendant may invoke the family of doctrines encompassed

within the concept of res judicata6 to prevent such harassment. Indeed, such

avoidance is usually cited as the very purpose for development of res judicata

in the first place.7 In the procedurally unique context of class action

certification, however, res judicata is of little or no help in preventing the

very injustice and inefficiency it was designed to avoid.

The problem arises because of an intersection of fact and law. While

normally res judicata bars subsequent suits on the same claim by the same

plaintiff or those in privity with her, any individual who is a member of the

potential class may seek certification. While respected jurists have argued

that an initial denial of certification should bind all potential class members

regardless of which of them sought certification in the initial suit,8 the Bayer

Court rightly rejected such an approach. It is well established that

procedural due process guarantees each litigant her day in court;9 therefore,

individuals may not be constitutionally bound by the resolution of a suit in

which they were not parties or privies of those who were parties.10

Although the Bayer Court’s conclusion was correct as a matter of

constitutional law, it leaves the defendant opposing the class in an extremely

difficult position. A denial of certification in the initial suit can invite an

almost endless parade of potential class members seeking certification, freed

from the burdens of the res judicata doctrine. Even if the defendant is

successful suit after suit, a combination of the never-ending drain on its

resources and the everlasting possibility that at some point one of those

courts will certify the class effectively forces that defendant to settle, whether

or not the merits dictate such a move. This is far from a systemically

satisfactory result and the relatively meager alternative solutions which the

Bayer Court offered defendants are less than comforting.11

In this Article, we propose a solution to the dilemma that all but

paralyzed the Court in Bayer. In doing so, we fashion a dramatically revised

perception of class action litigation. While as a technical matter the class

action is nothing more than an aggregation device—much like interpleader,

6. Res judicata has been said to refer “to the prohibition on relitigating a claim that has

already been litigated and gone to judgment.” RICHARD L. MARCUS, MARTIN H. REDISH, EDWARD

F. SHERMAN & JAMES E. PFANDER, CIVIL PROCEDURE: A MODERN APPROACH 1094 (5th ed. 2009).

The term also “is sometimes loosely used to refer to the totality of preclusion doctrines.” Id.

7. See, e.g., Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 401–02 (1981).

8. See In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig. (Bridgestone II), 333 F.3d

763 (7th Cir. 2003), abrogated by Bayer, 131 S. Ct. 2368; discussion infra Part III.

9. See Martin H. Redish & William J. Katt, Taylor v. Sturgell, Procedural Due Process, and the

Day-in-Court Ideal: Resolving the Virtual Representation Dilemma, 84 NOTRE DAME L. REV. 1877

(2009).

10. See Taylor v. Sturgell, 553 U.S. 880, 904–07 (2008).

11. See discussion infra Part V.B.