Multiple Attempts at Class Certification

Abstract

The phenomenon of multiple attempts at class certification -- when class counsel file the same putative class action in multiple successive courts and attempt to secure an order of certification despite previous denials of the same request -- has always presented a vexing analytical puzzle. When the Supreme Court rejected one proposed solution to that problem in Smith v. Bayer, it left unresolved some of the broader questions of preclusion doctrine, federal common law, and the constraints of due process with which any satisfying approach will have to grapple.

This essay was solicited as a reply to a recent article by Professor Martin Redish and Megan Kiernan. Redish and Kiernan propose a novel but unsuccessful solution to the multiple certification problem. Sorting through the problems in their Article provides a useful occasion for mapping out the shape of the multiple certification issue and the analytical terrain that any workable solution will have to navigate.

Keywords: Civil procedure, complex litigation, Class Action Fairness Act, CAFA, Multi-District Litigation process, MDL, Hansberry v. Lee, Mullane v. Central Hanover Bank & Trust Co., Philips Petroleum v. Shutts, day in court, litigation dynamics, serial certification