Plaintiff in this wage and hour class action was an absent member of a class in an earlier class action, wherein a class was certified, but later decertified. Defendant says Plaintiff is collaterally estopped from certifying a class here by the force of the decert order in the earlier case.
Under an earlier line of cases, California law ultimately settled on the rule that an absent class member is not precluded by an order denying class certification in an earlier case. That’s because, prior to certification, an absent member of a class isn’t really a party or in any privy or representative relationship with any party. So the mutuality element is absent.
But once a class has been certified, the lead plaintiff takes on a representative role with the rest of the class and is capable of taking action in the litigation that can have a binding effect on the rest of the class. According to the Court of Appeal, however, that still isn’t enough to bind Plaintiff here to the decertification ruling in the prior case.
First, in contrast to federal law, California law has long viewed members of a certified class as non-parties. So, for instance, a class member who objects to the settlement needs to intervene before he or she has standing as a party to appeal.
More importantly, perhaps, is that preclusion generally applies to members of a properly certified class. The whole purpose of the class certification process is make sure the class is structured such that lead plaintiffs and their lawyers can adequately represent the interests of absent class members. But a class that gets de-certified is a class where those features are lacking in some meaningful way. And the fact that flaws in the structure don’t become clear until sometime after a class has been improvidently certified doesn’t mean that the class was properly certified in the interim.
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