Class Certification’s Preclusive Effects

Abstract

In September 2010, the Supreme Court granted certiorari in the controversial Baycol litigation. The central question will be whether, subsequent to a denial of class certification, preclusion can prevent an absentee from seeking to certify another class action on a similar claim. This Article answers that question in the affirmative, while warning that the preclusion is very limited in scope. It arrives at this answer by analogizing to the more established doctrine of jurisdiction to determine no jurisdiction: if a court’s finding of no jurisdiction over the subject matter or the person can preclude, then a finding of no authority to proceed as a class action should be preclusive - on that precise issue of no authority, but not on anything else.

Keywords: class action, certification, preclusion, res judicata, Baycol, Bayer

JEL Classification: K41, K13