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.