Civil Procedure - Class Actions - Seventh Circuit Holds That Denial of Class Certification Cannot Bind Unnamed Class Members
For years, courts and commentators have struggled to resolve the problem of the "anomalous court" in class action law. (1) The problem arises because a decision denying class certification binds only the named plaintiffs and cannot bind the unnamed class members, as confirmed by the Supreme Court's recent decision in Smith v. Bayer Corp. (2) Thus, unnamed class members are free to relitigate the same motion for class certification in subsequent cases, searching for the anomalous court that will certify the class. Recently, in Smentek v. Dart, (3) the Seventh Circuit confirmed that, under Smith, prior denials of class certification do not preclude subsequent attempts to certify the same class, even within the same federal district. (4) Unfortunately, the court unnecessarily went on to affirm a decision that treated two prior denials of certification of the same class as no more than persuasive authority. (5) It also failed to resolve the dispute by reaching the merits of the certification question. (6) The court thus missed an opportunity to ameliorate the anomalous-court problem.
Smentek was the third in a series of fourteen nearly identical class action lawsuits filed in the federal district court in Chicago on behalf of the inmates of Cook County Jail. (7) In each, the plaintiffs alleged that the jail's policy of providing only a single dentist for approximately ten thousand inmates violated their rights under the Eighth and Fourteenth Amendments. (8) In the first case, Judge Leinenweber denied class certification after concluding that the class failed the commonality and typicality requirements of Rule 23(a) of the Federal Rules of Civil Procedure (9) and the predominance and superiority requirements of Rule 23(b)(3). (10) In particular, the court found that it could not determine whether staffing was inadequate without considering the impact of that staffing level on individual plaintiffs, and additionally concluded that individual issues of causation and damages would "encompass the vast majority of the time and resources necessary to judge Plaintiffs' claims." (11) In the second case, Judge Darrah found Judge Leinenweber's analysis "instructive," and held that the predominance and superiority requirements barred certification. (12) The same lawyers filed a third essentially identical motion for certification in Smentek, but based on the previous two cases, Judge Lefkow held their motion precluded by collateral estoppel. (13)
A few months after that decision, however, the Supreme Court decided Smith, holding that after denying class certification, a federal court could not enjoin litigation of a similar class action in state court. (14) In reaching that holding, the Court found that a denial of class certification could not have preclusive effect on unnamed class members. (15) The Court noted, however, that it "would expect federal courts to apply principles of comity to each other's class certification decisions when addressing a common dispute." (16)
Relying on Smith, Judge Lefkow granted a motion for reconsideration in Smentek and determined that class certification could not be barred by collateral estoppel, since the plaintiffs were only unnamed class members in the prior cases. (17) Treating the prior decisions as "persuasive authority," (18) the judge reconsidered the predominance and superiority issues and determined that the class could be certified. (19) Although she expressed concern about giving plaintiffs' counsel a third bite at the certification question, Judge Lefkow was "convinced that the common issue does predominate." (20) Whereas the prior opinions determined that individual issues of causation would predominate over common issues, (21) Judge Lefkow found that "[t]his case is better understood as requiring the plaintiff to prove that a condition of confinement ... is one of deliberate indifference to serious medical need." (22) Therefore, "the principal issue of causation is the systemic one[,] . …