On the final day of the Supreme Court term, the Court vacated and remanded the Seventh Circuit’s decision in Thorogood v. Sears, Roebuck & Co. for reconsideration in light of the Court’s opinion in Smith v. Bayer Corp. (see my blog post on Smith). In Thorogood, the Seventh Circuit, after previously ruling that class certification was improper, subsequently had instructed the federal district court to issue an injunction against a copycat class action on the same issue filed by the same plaintiffs’ lawyer, but with a different named plaintiff, in the Northern District of California.
It will be interesting to see what the Seventh Circuit does in this case. The Seventh Circuit has been aggressive in trying to address the pressing problem of serial relitigation of class certification on the same issue. The portion of Smith that addresses the Anti-Injunction Act appears to be clearly inapplicable in Thorogood because in Thorogood the copycat class action was filed in federal court. But the portion of Smith that says that nonparties may not be bound by denials of class certification could make the injunction in Thorogood improper, unless there is something unique about that case that makes it distinguishable from Smith.
As I blogged about in my post on Smith v. Bayer, the problem of relitigation in class actions is an important one, and, absent Congressional action or an amendment to the Federal Rules of Civil Procedure, it likely will take some creative lawyering and judges willing to develop new law if this problem is going to be solved.