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If at First You Don't Succeed, File a Copycat Class Action?

By Robyn Hagan Cain | Last updated on

Just a Wisconsin is known for cheese, Illinois is known for shady politicians, Indiana is known for the 500, and the Seventh Circuit Court of Appeals' feeder courts are known as breeding grounds for class action lawsuits.

Some of those claims make the class certification cut. Others fail.

But even when one federal judge closes a class certification door, a different judge might open a certification window. This week, the Seventh Circuit Court of Appeals ruled that comity between federal district judges' rulings on class certification rulings is not preclusive.

John Smentek and other former inmates of Cook County Jail filed a civil rights class action suit against Cook County and its sheriff, Thomas Dart. The suit, filed in the federal district court in Chicago, charges that the defendants' failure to make more than a single dentist available to the jail's 10,000 inmates constitutes the imposition of cruel and unusual punishment.

This isn't the first time an inmate has complained about the lack of proper dental care.

Vincent Smith, another former inmate of Cook County Jail, brought a nearly identical suit prior to Smentek's claim, and asked the district court to certify a class consisting of "all persons who, while confined at Cook County Jail ... requested but were not given timely treatment for dental pain." The district judge denied class certification in May 2008.

In 2009, a different district judge in the same court denied class certification in a materially-identical class action suit by Lance Wrightsell, another former inmate of Cook County Jail.

Finally, Smentek's copycat class action claim popped up before a third district judge in the same court. The third district judge interpreted the Supreme Court's 2011 ruling in Smith v. Bayer Corp., (holding that class certification denial in a federal court does not preclude putative class members from seeking class certification in a state court), to mean that denial of class certification by one federal judge should not preclude putative class members from filing an identical claim in the same federal court.

Judge Richard Posner wrote the opinion reviewing class certification in Smentek's case. While Judge Posner can't explain why all three cases weren't assigned to the same judge, and withheld judgment on whether the class certification was the right decision, he noted that past class certification denials in copycat class actions didn't bar the district court from granting class certification in Smentek's case.

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