OCTOBER TERM, 1993
TICOR TITLE INSURANCE CO. ET AL. v.
BROWN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 92-1988. Argued March 1, 1994-Decided April 4, 1994
Respondents were members of a class whose money damages claims were settled in a suit filed against petitioner title insurance companies. The class was certified under Federal Rules of Civil Procedure 23(b)(1)(A) and (b)(2), which do not permit class members to opt out of a class. When respondent Brown subsequently filed the present action on behalf of Arizona and Wisconsin title insurance consumers, the District Court granted petitioners summary judgment on the ground that respondents were bound by the earlier judgment. The Ninth Circuit reversed, holding that it would violate due process to accord res judicata effect to a judgment involving money damages claims where a plaintiff to the previous suit had not been afforded a right to opt out.
Held: Because deciding this case would require the Court to resolve a constitutional question that may be entirely hypothetical, the writ is dismissed as improvidently granted. The Court would not have to reach the question whether absent class members have a constitutional right to opt out of actions involving money damages if it turned out that classes in such actions can be certified only under Rule 23(b)(3), which permits opt out. However, the determination that respondents' class fit within Rules 23(b)(1)(A) and (b)(2) is conclusive upon these parties, and the alternative of using the Federal Rules instead of the Constitution as a means of imposing an opt-out requirement on this settlement is no longer available. Further, it is not clear that our resolution of the constitutional question will make any difference even to these litigants.
Certiorari dismissed. Reported below: 982 F.2d 386.
Richard G. Taranto argued the cause for petitioners.
With him on the briefs were Joel 1. Klein, Frank D. Tatum, Jr., Paul J. Laveroni, John C. Christie, Jr., Patrick J. Roach, John F. Graybeal, Robert H. Tiller, and David M. Foster.
Gerald D. W North argued the cause for respondents.
With him on the brief were Ted M. Warshafsky, Aram A. Hartunian, and Ronald L. Futterman. *
For the reasons discussed below, we have concluded that deciding this case would require us to resolve a constitutional question that may be entirely hypothetical, and we accordingly dismiss the writ as improvidently granted.
In 1985, the Federal Trade Commission initiated enforcement proceedings against petitioners, six title insurance companies, alleging that they conspired to fix prices in 13 States including Arizona and Wisconsin. Shortly after that, private parties in the affected States filed 12 different "tagalong" antitrust class actions, seeking treble damages and injunctive relief. Those private suits were consolidated for pretrial purposes pursuant to 28 U. S. C. § 1407 (the federal multidistrict litigation statute), and were transferred to the
*Briefs of amici curiae urging reversal were filed for the American Insurance Association et al. by Herbert M. Wachtell, Douglas S. Liebhafsky, Stuart Philip Ross, Sean M. Hanifin, Merril J. Hirsh, Craig A. Berrington, Paul J. Bschorr, Richard W Reinthaler, and Rebecca L. Ford; for the Lawyer's Committee for Civil Rights Under Law by Michael A. Cooper, Herbert J. Hansell, Thomas J. Henderson, Richard T. Seymour, Sharon R. Vinick, Edward Labaton, and Bernard Persky; and for the National Football League by Frank Rothman, William L. Daly, Herbert Dym, and Gregg H. Levy.
Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Jeffrey Robert White, James E. Rooks, Jr., and Barry J. Nace; for Owens-Illinois, Inc., by James Dabney Miller and David L. Gray; for Public Citizen by Alan B. Morrison and Brian Wolfman; for Trial Lawyers for Public Justice by Roberta B. Walburn, Arthur H. Bryant, and Leslie A. Brueckner; for James Menendez et al. by Brent M. Rosenthal; and for Leslie O'Neal et al. by Don Howarth and Suzelle M. Smith.