Last year, in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011), the Supreme Court held that a denial of class certification was not binding on absent members of the putative class, and thus a federal district court that had denied class certification could not enjoin an absent, non-named member of the putative class from pursuing certification of essentially the same proposed class in a state court.  The Court noted, however, that repetitive relitigation of class certification is a significant problem for the judicial system.  In dictum, the Court stated that “our legal system generally relies on principles of stare decisis and comity among courts to mitigate the sometimes substantial costs of similar litigation brought by different plaintiffs,” and that “we would expect federal courts to apply principles of comity to each other’s class certification decisions when addressing a common dispute.”  Id. at 2381-82.  

In Smentek v. Dart, No. 11-3261, 2012 U.S. App. LEXIS 12325 (7th Cir. June 19, 2012) (Posner, J.), the Seventh Circuit recently addressed how far that principle of comity goes, holding that comity does not require a trial judge to adhere to prior decisions by other trial judges.  Rather, comity is merely a “weak notion . . . requiring a court to pay respectful attention to the decision of another judge in a materially identical case, but no more than that even if it is a judge of the same court or a judge of a different court within the same judiciary.”  Id. at *10. 

Smentek involved a series of class actions filed by prisoners in the Northern District of Illinois, alleging that the failure to make sufficient dental services available at the Cook County Jail was a constitutional violation.  Two district judges denied class certification, but a third judge granted certification.  The defendant argued that the dictum in Smith v. Bayer Corp. regarding comity among federal courts required the district judge deciding the third case to follow her colleagues’ rulings.  The Seventh Circuit, in an opinion by Judge Poser, rejected this argument, explaining that “[t]he mandatory comity for which the defendants in our case contend is just another name for collateral estoppel,” which Smith v. Bayer Corp. had found expressly inapplicable.  Id. at *8. 

The result here is not surprising to me.  When I first read Smith v. Bayer Corp., without studying case law about comity, I had assumed the Court was referring to a relatively weak form of comity, and it did not occur to me that defendants would make the argument for the strong form of comity that was asserted in Smentek

But there ought to be some solution that enables a defendant to avoid re-litigating class certification over and over, and relieves the burden that imposes on conscientious trial court judges who will not simply rubber stamp one of their colleagues’ rulings but feel a need to take a fresh look at the case before them.  An appellate decision is not the answer where the defendant wins in the trial court the first time (or two or three) and cannot appeal.  I’ve mused before about whether a defendant faced with this problem could bring a declaratory judgment action against a class of would-be class representatives for the purpose of obtaining one final, dispositive ruling on class certification.  But I’m not aware of anyone testing that novel approach.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.