Earlier today, the U.S. Supreme Court held oral argument in Smith v. Bayer, which raises the question of a federal court’s power to enjoin a state court from considering class certification after the federal court had previously denied certification. A copy of the argument transcript is available for download at the Supreme Court’s website. Some of the key lines of inquiry from the Court can be summarized as follows:
- Are there differences between FRCP 23 and West Virginia Rule 23 that should have prevented the application of issue preclusion?
- Even if the elements of the two rules are substantially the same, does the fact that the West Virginia courts take a more favorable “tone” toward class certification mean that they are different for the purposes of an issue preclusion analysis?
- Does an individual have a protected due process right to be heard on a procedural issue, such as the appropriateness of class certification, as opposed to a substantive right or cause of action?
- Does it matter whether the plaintiff in the second case could have intervened in the first one?
- Why isn’t it sufficient that the state court in a subsequent case can decide to apply issue preclusion, as opposed to the federal court enjoining the state court from even considering the question?
- Does the absense of a formal judgment mean that the relitigation exception of the Anti-injunction Act cannot apply to class certification orders at all?
- Can the plaintiff and his or her counsel who unsuccessfully sought class certification in one case be considered sufficiently representative of other absent class members and their counsel to satisfy the identity of interest requirement of issue preclusion?
Although most of the questions involved how the case should be decided under express statutory language and established legal principles, it seems reasonable to expect that the Justices’ views on federalism, and the proper balance between federal and state power, will flavor the Court’s decision. The federalism theme is one that counsel for the plaintiffs, Richard A. Monohan, fell back to on several occasions during the argument. Perhaps not coincidently, two of the members of the Court’s conservative bloc, Justice Scalia and Chief Justice Roberts, asked some of the more biting questions implicating the fairness of precluding a new party from re-litigating an unsuccessful attempt at class certification by a different party.
To this point, the Roberts Court’s direction on issues of federalism has been less than clear (see this September 2010 National Law Journal article by Marcia Coyle). This case offers the opportunity to start charting a more specific course. At the same time, this is the kind of case that can foster unpredictable alliances within the Court. For example, the states’ rights supporters may find themselves joining forces with one or more Justices who see unfairness in preventing absent class members from having their day in court on the issue of class certification.
On the other hand, predicting the outcome or rationale of Supreme Court cases is a lot like predicting the NFL playoffs.