• Supreme Court Rejects "Virtual Representation"
  • July 1, 2008 | Authors: Linda T. Coberly; Brook R. Long; Gene C. Schaerr; Steffen Johnson
  • Law Firms: Winston & Strawn LLP - Chicago Office ; Winston & Strawn LLP - Washington Office ; Winston & Strawn LLP - Chicago Office
  • In a case with broad significance for civil litigation, the Supreme Court has held that “virtual representation” is not among the limited exceptions to the rule that a judgment binds only the parties to the litigation. In Taylor v. Sturgell, No. 07-371 (June 12, 2008), the Court rejected the D.C. Circuit’s holding that a person could be precluded from litigating a claim merely because he had a “close relationship” and “identity of interests” with a previous litigant who unsuccessfully litigated the same claim.

    The plaintiff in Taylor was the president of an antique aircraft association.  He had filed a Freedom of Information Act request with the Federal Aviation Administration, seeking technical information about the F-45, an airplane manufactured in the 1930s. The association president filed this request only after another member of the association had unsuccessfully litigated a similar request. The FAA denied the association president’s request for the same reason it had denied the previous one—because the information was a trade secret and the manufacturer objected to disclosing it.  In federal court, the association president challenged the manufacturer’s objection—based in part on an argument that had not been raised in the litigation following the earlier request. The district court and the D.C. Circuit both concluded that the association president’s claim was precluded because the other member of the association had acted as his “virtual representative” in the earlier suit. The D.C. Circuit reasoned that the two were close associates, shared information, had agreed to work together to restore an F-45, and had hired the same lawyer to represent them. 

    The Supreme Court disagreed. In an opinion written by Justice Ginsburg for a unanimous court, the Court rejected “virtual representation” as an unwarranted expansion of non-party claim preclusion. The Court clarified that its previous decisions limited any theory of “adequate representation” to situations where there were “either special procedures to protect the nonparties’ interests or an understanding by the concerned parties that the first suit was brought in a representative capacity.” The Court declined the FAA’s invitation to invent a new fact-intensive inquiry—an alternative to “adequate representation”—that would determine whether a non-party’s relationship to a prior litigant was “close enough” to justify claim preclusion. According to the Court, such an inquiry would be impractical and would effectively allow lower courts to create de facto class actions without the important procedural protections class actions entail. The Court left open the possibility that the association president was acting as the earlier litigant’s “agent” and remanded for consideration of that issue.

    Although this decision does not represent a significant departure from the Supreme Court’s existing precedent, it does serve as a caution to parties involved in repetitive litigation to be aware of who their adversaries do—or do not—represent.