It Should Be An Interesting Couple Of Weeks

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According to the Supreme Court’s website, the current term is due to end on June 27. With no fewer than six cases of interest still undecided after today’s decision in Smith v. Bayer Corp., No. 09–1205 (U.S. June 16, 2011), it promises to be an interesting couple of weeks. There are only three remaining opinion days scheduled on the Court’s calendar: 6/20, 6/23, and 6/27 (although the Court, being the Court, could change that if necessary). That works out to an average of two interesting decision per day.

First, Smith v. Bayer. It’s a loss for our side, but as a practical matter the issue of enjoining successive plaintiffs' attempts to certify the same class action in different courts doesn’t loom as large as it once did – since the Class Action Fairness Act (“CAFA”) rounds most of these sorts of cases up and ships them all into federal court where they can be coordinated – thus avoiding such plaintiff-side shenanigans. Smith involved some relatively old litigation, and thus unfortunately predated CAFA. See Slip op. at 3 n.1. In all likelihood, the same thing couldn’t happen again today.

Still, for personal and professional reasons we mourn the result because of Bexis’ involvement in winning that issue (the unanimous Supreme Court now says wrongly) in the first such case to be litigated, In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 333 F. 3d 763 (7th Cir. 2003). That was back when it still mattered a great deal, so at least its done some good in the meantime.

Smith was decided on Anti-Injunction Act grounds. For you non-lawyers, that act, one of the oldest statutes still in effect (enacted in 1793), governs when a federal court can enjoin (that means stop or interfere with the progress of) another lawsuit pending in a state court. The key exception to the Act’s general prohibition against doing this is that a federal court may act when “necessary . . . to protect or effectuate its judgments.” In Smith that meant protecting the federal court’s decision that no class involving the particular product under the particular state law cause of action could be certified.

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