In a decision sure to encourage the practice of filing of “copycat” class actions, the Seventh Circuit Court of Appeals has ruled that a class was properly certified even though other two judges in the same federal district had previously refused to certify the proposed classes in nearly identical lawsuits.

In Smentek v. Dart, decided on June 19, the Seventh Circuit expressed concern that its ruling could encourage “judge shopping,” but held that nothing in the law prevents plaintiffs lawyers from “bringing identical class actions with new class representatives until they draw a judge who is willing to certify the class.”

The ruling expands on last year’s U.S. Supreme Court ruling in Smith v. Bayer Corp., which held that the denial of class certification in a federal court does not preclude members of the putative class from later seeking certification of the same claims in a state court.

The Smentek case was brought by detainees in Chicago-area jails who claim that treatment of dental pain is routinely delayed. Two judges in the Northern District of Illinois had refused to certify similar cases brought by the same lawyer, but a third judge certified the case, prompting an appeal by Cook County and its sheriff.

Now the Seventh Circuit has squarely rejected the county’s argument that the first judge’s decision should have prevented any other judges from certifying “the same or a similar class in a suit by a member of the same class.”

Although the case was brought by jail detainees, the Seventh Circuit’s ruling applies broadly, to any type of class action, because it focuses on the purely legal question—whether the denial of class certification by one federal judge should act as a bar against any would-be member of that class to file an identical claim in the same federal court in the hopes of getting the case before a different judge and securing a different ruling.

Cook County’s lawyers had urged the Seventh Circuit to focus on the legal principle of “comity,” a term that refers to the deference a judge should show to the rulings of other courts and court systems. Most often, the term refers to the state courts respecting the federal courts, and vice versa. But the defense argued that comity should be expanded to preclude different decisions among federal court judges.

The Seventh Circuit refused, saying the decisions by individual judges in the federal trial courts have never been treated as binding on the other members of their own bench.

Nonetheless, the Seventh Circuit expressed clear frustration with the outcome due to the “serious problem of judge shopping in the disordered realm of class action litigation, a problem well illustrated by this case and its two predecessors taken all together.”

Under the current rules, lawyers may repeatedly file identical class actions with new class representatives until they draw a judge willing to certify the class. What is clear from the Seventh Circuit’s opinion in Smentek is that courts remain powerless to stop judge shopping through the filing of repeated copycat class actions—whether they like it or not.

The attorneys in Ballard Spahr’s Consumer Financial Services Group and Labor and Employment Group regularly defend against class actions and monitor courts around the country to track the trend in class action litigation. For more information, contact CFS Practice Leader Alan S. Kaplinsky at 215.864.8544 or, CFS Practice Leader Jeremy T. Rosenblum at 215.864.8505 or, Burt M. Rublin at 215.864.8116 or, Christopher J. Willis at 678.420.9436 or, Sarah T. Reise at 678.420.9370 or, or the CFS or Labor and Employment attorney with whom you regularly work.


Copyright © 2012 by Ballard Spahr LLP.
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