A Second Bite at the Certification Apple in State Court?


Linda S Mullenix

National Law Journal 12


Commentary and analysis of the Supreme Court’s consideration of Smith v. Bayer Corp. on the Court’s 2011 appellate docket. The Court will address the significant question whether litigants are free to seek class certification in a duplicative state court action, where a federal court has already considered the class certification decision under Federal Rule of Civil Procedure 23 and denied class certification. 

The Smith v. Bayer appeal presents the Court with competing important policy concerns. The plaintiffs suggest that the case involves important questions of federalism, wherein state courts are free to determine legal issues according to their own interpretations of rules and procedures, even if those rules (in this instance class action rules) are identical to the federal rule. On the other hand, the defendant points out that upholding the ability of plaintiffs to seek class certification in state court, after being denied class certification in federal court, blatantly encourages the worst types of forum-shopping for state court plaintiff-favoring venues. 

The appeal involves consideration of the federal Anti-Injunction Act, which embodies the principle that federal courts in most instances may not interfere or enjoin state court proceedings. In the underlying litigation, a Minnesota federal court issued an injunction restraining a West Virginia state court from considering class certification of a virtually identical class action in which the Minnesota court previously denied class certification. The Court will consider whether any exception to the Anti-Injunction act ― or any principles of res judicata or estoppel ― apply to prevent relitigation of the class certification issue. 

The Smith v. Bayer appeal carries great weight in light of the potential for parallel, duplicative class action litigation in state and federal courts, as well as forum-shopping opportunities for class litigants.


Full Citation

Linda S. Mullenix, A Second Bite at the Certification Apple in State Court?, National Law Journal, March 21, 2011, at 12.