In re Bridgestone/Firestone, Inc., Tires Products

• Decision Date: 20 June 2003
• Docket Number: No. 03-1379.,No. 03-1564.,03-1379.,03-1564.
• Citation: 333 F.3d 763
• Parties: In the Matter of: BRIDGESTONE/FIRESTONE, INC., TIRES PRODUCTS LIABILITY LITIGATION. Appeals of: Ford Motor Company, Bridgestone/Firestone North American Tire, L.L.C., and Bridgestone Corporation.
• Court: U.S. Court of Appeals — Seventh Circuit

333 F.3d 763

In the Matter of: BRIDGESTONE/FIRESTONE, INC., TIRES PRODUCTS LIABILITY LITIGATION Appeals of: Ford Motor Company, Bridgestone/Firestone North American Tire, L.L.C., and Bridgestone Corporation.

No. 03-1379.

No. 03-1564.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 2003.

Decided June 20, 2003.

Appeal from the United States District Court for the Southern District of Indiana, Sarah Evans Barker, J Elizabeth J. Cabraser, Lieff, Cabraser, Heimann & Bernstein, San Francisco, CA, Irwin B. Levin, Cohen & Malad, Indianapolis, IN, Samuel Issacharoff (argued), Columbia University Law School, New York, NY, Victor M. Diaz, Jr., Podhurst Oeseck Josefsberg & Weaton, Miami, FL, David Boies, Boies, Schiller & Flexner, Armonk, NY, Mike Eidson, Colson Hicks Eidson, Coral Gables, John W. Barrett, Lexington, MS, William E. Winningham, Wilson Kehoe & Winningham, for Plaintiff-Appellee.

John H. Beisner (argued), O'Melveny & Myers, Washington, DC, Joseph C. Weinstein Squire Sanders & Dempsey, Cleveland, OH, Hugh R. Whiting, Jones Day, Houston, TX, for Defendant-Appellant.

Brent A. Hannafan, Dechert, Price & Rhoads, Philadelphia, PA, Leslie A. Brueckner, Trial Lawyers for Public Justice, Washington, DC, Steven B. Jensen, Baron & Budd, Dallas, TX, Michael R. Schuster, Sarah L. Lock, Bruce Vignery, AARP Foundation Litigation, Washington, DC, for Amicus Curiae.

Before EASTERBROOK, MANION, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

This appeal is successive to last year's decision that the district court abused its discretion by certifying nationwide classes covering multiple models of Ford vehicles and Firestone tires sold between 1990 and 2001. See In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 288 F.3d 1012 (7th Cir.2002), cert. denied, 537 U.S. 1105, 123 S.Ct. 870, 154 L.Ed.2d 774 (2003). Classes comprising owners of more than 60 million tires and 3 million vehicles, including many different models, are unsuitable for several reasons, we concluded — not the least of which is that different rules of law govern different members of the class. The district court thought that Indiana's choice-of-law doctrines select a single state's law to govern each kind of product; we disagreed with this conclusion and held that Indiana would apply the law of the state where the injury occurred. A need to apply multiple states' laws was among the considerations that rendered certification of nationwide classes improvident, we held.

After the Supreme Court denied class counsel's petition for certiorari, lawyers representing the plaintiffs decided to try again, in other courts. Class suits have been filed in many jurisdictions; in at least five suits, plaintiffs seek certification of the same nationwide classes that our opinion nixes. One state judge certified a nationwide class on the day complaint was filed, without awaiting a response from the defendants and without giving reasons. Ford and Firestone asked the district judge to enforce our decision by enjoining other class actions — not just other efforts to launch nationwide classes, but any class action, even one limited to a single product in a single state. The district court denied this motion, and the defendants immediately appealed on the authority of 28 U.S.C. § 1292(a)(1).

Throughout this litigation, both sides have gravitated to the extremes. Plaintiffs' lawyers sought nationwide classes that depended on an implausible uniformity of both law and fact, grinding down all differences among the buyers and the products to make a mega-class manageable. Defendants replied by extolling the virtues of federalism and the wisdom of allowing each state a free hand to resolve these disputes. Once we disappointed the plaintiffs' ambitions, however, the litigants began to sing each other's songs. Today the plaintiffs celebrate federalism and trumpet the acumen of state judges in handling complex litigation, while defendants seek a uniform outcome, which would forbid any state court to entertain any class action of any kind concerning these products. Plaintiffs were off the mark the first time, and defendants are off the mark now — though neither side has been wholly right, then or now.

The Anti-Injunction Act, 28 U.S.C. § 2283, forbids any federal injunction or stay of state litigation "except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Defendants contend that an anti-class-action injunction is necessary to carry out our decision of last year. Yet the only classes that had been certified had national scope, and the only judgment that could be protected or effectuated is one concerning such classes. (The first appeal did produce a "judgment"; courts of appeals, like district courts, enter judgments, see Fed. R.App. P. 36, and § 2283 refers to all "judgments" rather than just "final judgments.") The district court had not certified, and our opinion thus did not address, any statewide class. Although we suggested that even a single-state class covering multiple models of tire or SUV would be unmanageable and inferior to supervision by the National Highway Transportation Safety Administration, see 288 F.3d at 1018-21, this assessment did not become part of our judgment. State courts are free to decide for themselves how much effort to invest in creating subclasses (so that each model of tire or SUV receives appropriate consideration); advice designed to ward off what a federal court deems an unproductive investment of judicial time does not create a "judgment" that forbids any state tribunal to make the effort. Indeed, our opinion contemplated that states would certify narrower classes; we gave, as an example, "1995 Explorers in Arizona equipped with a particular tire specification", id. at 1020. So the district court properly denied Ford's request for an injunction that would preclude any class suit in any state court. Each state may apply its own choice-of-law rules (and its own substantive law, if otherwise appropriate) in a way that a federal court, trying to apply nationally homogenized law, could not.

What we did hold is that a class covering owners in every state may not be certified over the defendants' opposition. (We did not consider the possibility of settlement classes, which pose different issues. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); In re Mexico Money Transfer Litigation, 267 F.3d 743, 746-47 (7th Cir.2001).) This holding is the basis of our judgment reversing the district court's order certifying nationwide classes. The Anti-Injunction Act permits a federal court to protect and effectuate that judgment by equitable relief. Normally the second court determines the preclusive effect of a judgment, see Maintenance of Way Employees v. Burlington Northern R.R., 24 F.3d 937, 940 (7th Cir.1994), so the appropriate course is to deny a request for an anti-suit injunction even when § 2283 does not itself close the door. But when federal litigation is followed by many duplicative state suits, it is sensible to handle the preclusive issue once and for all in the original case, rather than put the parties and state judges through an unproductive exercise. That these suits are multiplying suggests that some lawyers have adopted a strategy of filing in as many courts as necessary until a nationwide class comes into being and persists. (We assume that the ex parte certification already mentioned ultimately will be vacated as an obvious violation of procedural requirements.)

Relitigation can turn even an unlikely outcome into reality. Suppose that every state in the nation would as a matter of first principles deem inappropriate a nationwide class covering these claims and products. What this might mean in practice is something like "9 of 10 judges in every state would rule against certifying a nationwide class" (in the federal courts, it has meant that 3 of 4 judges have ruled against the proposed nationwide classes). Although the 10% that see things otherwise are a distinct minority, one is bound to turn up if plaintiffs file enough suits — and, if one nationwide class is certified, then all the no-certification decisions fade into insignificance. A single positive trumps all the negatives. Even if just one judge in ten believes that a nationwide class is lawful, then if the plaintiffs file in ten different states the probability that at least one will certify a nationwide class is 65% (0.9¹⁰ = 0.349). Filing in 20 states produces an 88% probability of national class certification (0.9²⁰ = 0.122). This happens whenever plaintiffs can roll the dice as many times as they please — when nationwide class certification sticks (because it subsumes all other suits) while a no-certification decision has no enduring effect. Section 2283 permits a federal court to issue an injunction that will stop such a process in its tracks and hold both sides to a fully litigated outcome, rather than perpetuating an asymmetric system in which class counsel can win but never lose.

Nonetheless, class counsel tells us, the legal system entitles them to the benefit of this heads-I-win, tails-you-lose situation. This is so, class counsel contend, for three principal reasons: first, this federal action has not produced a final judgment; second, states may employ their own rules of preclusion; third, the federal court lacks personal jurisdiction over state-court plaintiffs who did not participate in the federal proceeding. None of these arguments is sound.

Although claim preclusion (res judicata) depends on a final judgment, issue preclusion (collateral estoppel) does not.

The rules of res judicata are applicable only when a final judgment is rendered. However, for purposes of issue preclusion (as distinguished from merger and bar), "final judgment" includes any prior adjudication of an issue in...