Kentucky Commercial Law and Litigation

    Most law students know the mantra.  A litigant is not bound by the results of a prior case unless he or she was a party or in privity with a party to the prior case.  Some relationships are easy to classify as privity:  a successor in interest to real property (a new owner can't relitigate a prior decision on adverse possession for example). Others are more difficult:  Is one who paid the fees in the prior case bound by those result in his own -- later -- case?  Is one bound where he is represented by the same counsel and uses the same witnesses as the prior litigation, and where the issue is identical (a plaintiff in a subsequent product liability case raising the same issues as a prior case, where the prior plaintiff lost)?

    Thanks to the Baylor procedure profs at the Civil Procedure Profs Blog, we learned the Supreme Court will have an opportunity soon to decide whether "privity" can include some relationships between the first and second party that makes it fair to hold the second party accountable for the results in the first case.   It heard argument a couple of weeks ago in Taylor v. Sturgell (Court of Appeals opinion here), a case in which a plaintiff sought certain documents from the F.A.A. under a freedom of information act request.  They were the same documents sought, and denied, in a prior case brought by a "close associate" and by the same lawyer. 

    The Court of Appeals applied standard rules of preclusion in dismissing the case,  concluding that Taylor was virtually represented by the plaintiff in the prior case.  There is a little local angle here.  Our friend and former partner (at our old firm) Harry Riggs filed an amicus brief in the Court of Appeals on behalf of the Experimental Aircraft Association.  Harry lives in Edgewood, Ky., in Northern Kentucky and is a longtime KBA member. 

    Although civil procedure teachers get excited about the prospect of a significant opinion expanding the definition of privity for claim preclusion, the transcript of the argument in the Supreme Court, and the peculiar facts of this case might leave one with the impression this case will not break significant new ground.  On the facts, it looks like the Court sees this as a case where the plaintiffs in the two cases were either agents of each others or in collusion with each other, or that such a finding is necessary to cause preclusion.

    The only other basis the Court seemed willing to buy, that the subsequent party "controlled" the first litigation, has already been adopted by the Court as a form of privity (Montana v. United States, 450 U.S. 544 (1981).   Justice Ginsburg seemed to cast the case in that light.  Beyond that, no one seemed too anxious to stretch much farther:  Justice Scalia said he was not inclined to seek "an incursion of our traditional rules," and even the lawyer for the government said he wasn't advocating a rule of "widespread preclusion."

    So it's unlikely we will get an opinion that helps with the question many lawyers for defendants in multiple plaintiffs cases think about:  can later plaintiffs be bound by the result in an earlier case where the plaintiff lost, where the experts, lawyers, and evidence are all the same, and even where the later plaintiffs contributed to the cost in the first case, or participated in common discovery, for example, where the cases were consolidated for multi-district discovery and then remanded for separated trials?  One court was persuaded that prelusion should operate in these circumstances, Lynch v. Merrell National Labs,  but that logic was vacated by the Court of Appeals (here) and the theory has not caught hold in the twenty years since.   

    Although the Court might surprise us with something novel on preclusion in its ultimate opinion, I'm betting against that.  Watch for a remand to explore whether they can decide the case on the basis of control by the second plaintiff of the first case, or the reverse of that, or on the basis of collusion between the two plaintiffs.