In August 2001, George McCollins filed a putative class action in West Virginia state court against Bayer and other defendants. McCollins sought to represent a West Virginia class that alleged claims based on the sale of Baycol, a cholesterol lowering medication. After defendants removed the case to federal court, it was consolidated through multidistrict litigation with thousands of other Baycol cases in Minnesota.

In September 2001, Kevin Smith and two others filed a similar action in West Virginia state court against Bayer and other defendants. Defendants could not remove Smith to federal court because two West Virginia citizens were defendants, destroying diversity jurisdiction.

In August 2008, defendants in McCollins moved the federal court to deny certification of the proposed West Virginia class and to enter summary judgment. The federal court granted both motions. There was no appeal.

In September 2008, the Smith plaintiffs asked the West Virginia state court to certify the West Virginia class they proposed to represent. Defendants responded by asking the federal court that had decided McCollins to enjoin the Smith plaintiffs from litigating their request for class certification. Defendants contended that the Smith plaintiffs were members of the proposed McCollins class, and the federal court’s decision in McCollins barred members of the proposed McCollins class from re-litigating in state court whether the same class should be certified.

The federal court held that it had personal jurisdiction over the Smith plaintiffs because they were members of the proposed McCollins class, and the “relitigation exception” of the Anti-Injunction Act permitted the federal court to issue the requested injunction pursuant to the All Writs Act. The federal court then issued the injunction, finding that the Smith plaintiffs were collaterally estopped from seeking to certify the same class that the federal court refused to certify in McCollins. The Eighth Circuit Court of Appeals affirmed the order granting the injunction. In re Baycol Products Litig., 593 F.3d 716 (8th Cir. 2010).

The Smith plaintiffs then petitioned the United Sates Supreme Court for a writ of certiorari, asserting that the McCollins federal court could not exercise personal jurisdiction over them based on their membership in a class that was not certified, and the Anti-Injunction Act and the All Writs Act do not authorize the issuance of an injunction against their litigation of class certification issues in state court. On September 28, 2010, the Supreme Court granted the petition and decided to review the Eighth Circuit’s ruling. A decision in Smith v. Bayer Corp., No. 09-1205 is likely in 2011. The decision is expected to determine whether a defendant that defeats the certification of a class in a federal court case may use that decision to preclude certification of the same class in a state court case.