A recent opinion by the Western District of Pennsylvania reminded me of an interesting wrinkle of class action law:  the decertification of a class that was previously certified typically has binding impact on the class members, preventing further attempts to seek certification of the same or a similar proposed class.  But as we know from the Supreme Court’s decision last Term in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011) (see my blog post about that decision), a denial of class certification does not have preclusive effect.  Why is it that a defendant who first loses on class certification and then wins later on what amounts to reconsideration (partial or complete) achieves a result that a defendant who wins on class certification the first time does not?  The reason for this is simply that the class members had adequate notice of the original certification so they are bound by the decertification.  But is there a way a defendant can achieve the same binding result when class certification is denied the first time?  Perhaps this result could be achieved by asking the court to certify a class of all would-be class representatives, solely for the purpose of deciding whether class certification is appropriate, and providing notice to that class, so that the decision on class certification is binding.  Some might call it certifying a class for the purpose of deciding whether to certify a class.  An unusual, “out of the box” defense strategy for sure, but one that might work.

The recent decision that brought these issues to the forefront of my mind is West v. CUNA Mutual Insurance Society, Civ. A. No. 11-1259, 2012 U.S. Dist. LEXIS 19512 (W.D. Pa. Feb. 16, 2012).  If you have a great memory you’ll recall my June 9, 2011 post about the Third Circuit decision in Meyer v. CUNA Mutual Insurance Society, 648 F.3d 154 (3d Cir. 2011), a disability insurance class action, in which the district court certified a class, made a coverage ruling, issued an injunction, and then decertified the class.  The Third Circuit affirmed the coverage ruling but vacated the injunction, finding it improper in light of the decertification.  West was a putative class action brought on the same issue as Meyer, alleging that the defendant continued to violate the coverage ruling made in Meyer.  In a short opinion, the Western District of Pennsylvania held that collateral estoppel barred the plaintiffs, who were members of the class that was decertified in Meyer, from pursuing class certification.

In a sense, CUNA Mutual got lucky here because the class was certified and then later decertified. This is the kind of outcome a defendant who wins class certification would love to have—the defendant would much rather not have to re-litigate class certification a number of times after winning on the issue.  One way that this might be accomplished, although I’ve never seen it done, would be by asking the court the first time around to certify a class of would-be class representatives for the purpose of rendering one dispositive, binding ruling on class certification.  If anyone is aware of this ever being sought or accomplished I’d be interested to know about it.