Just a quickie post about today’s Supreme Court oral argument in Smith v. Bayer, a copy of the transcript here.  This is the case where the, once the Baycol MDL had denied class certification, the plaintiffs tried for certification of an identical class in West Virginia state court.

In the interim, as we mentioned elsewhere, the plaintiffs’ most certifiable cause of action – under the West Virginia consumer fraud statute – got blown out on substantive state law grounds.

Anyway, two things struck us about the argument:  (1) the substantive/procedural distinction was more prominent than we thought (based upon our experience years ago in the Ford Firestone case).  It seemed to endanger the plaintiffs’ Due Process, because there’s no Due Process right to a particular procedural tool, such as a class action.  It also seemed to undermine the defendant’s Anti-Injunction Act position, insofar as the Act is phrased in terms of “judgments.”  (2) Conversely, we were surprised that the adequacy of representation point didn’t receive more attention.  The plaintiffs never got around to the point at all (although they said they would in rebuttal, they got sidetracked), and it came up at the tail end of the defendant’s argument, but only in the context of due process.  We would have thought that, in representative litigation, that a finding of adequacy of representation for the class in the first would be a key to whether anything in that action could be binding on the absent class members.  The certification denial, as far as we can tell, was based on predominance, rather than on questions about the plaintiffs’ (or their attorney’s) representation.  That being the case, we think that privity would be permissible.

But what do we know?  Our ability to predict Supreme Court outcomes has been pretty lousy, so we’ve given that up.  As a practical matter, it’s pretty much a moot point anyway, because:  (1) these West Virginia plaintiffs aren’t likely to get a straight fraud claim (what their left with) certified in any court, and (2) this kind of shenanigans isn’t very likely after CAFA.