Herrick filed a lawsuit against the FAA, seeking information under FOIA; however, Herrick’s case was dismissed. Taylor filed a similar action less than a month later. The district court granted summary judgment to the FEAC and the FAA, concluding that Taylor’s case was barred by claim preclusion.
A plaintiff is not barred from bringing a similar claim under virtual representation when both claims involve the same project and the parties to each suit are represented by the same attorney.
Taylor sued the FAA and the FEAC in the United States District Court for the District of Columbia, seeking to obtain the plans for a F-45 airplane’s engine via FOIA request. Less than a month prior to Taylor’s lawsuit, his friend, Greg Herrick, filed a similar suit in another district court, seeking the same information. In Herrick’s case, Herrick filed a FOIA request seeking copies of any technical documents about the F-45 contained in the FAA’s records. The FAA denied the request, stating that they would not release the information because it constituted FEAC’s trade secrets. When Herrick produced a letter written by FEA in 1955 that appeared to be a repudiation of trade secret protection on FEAC’s part, the FAA contacted the company, which exercised its trade secret protection. Herrick’s suit was then dismissed. In the current case, Taylor sued, represented by the same attorney, arguing, in addition to claims raised in Herrick’s suit, that FEAC was not able to now use trade secret protections when it appeared to dispense with them years prior. In this litigation, FEAC intervened and filed a motion to dismiss based on virtual representation. The district court agreed, granting summary judgment to the FAA and Fairchild on the grounds of claim preclusion. The United States Court of Appeals for the District of Columbia Circuit affirmed, finding that Taylor was “virtually represented” by Herrick. Taylor appealed.
Is Taylor barred from bringing a similar claim under virtual representation when both claims involve the same project and the parties to each suit are represented by the same attorney?
No. The court vacated the judgment and remanded the case for a new trial.
A plaintiff is not barred from bringing a similar claim under virtual representation when both claims involve the same project and the parties to each suit are represented by the same attorney. A nonparty to a suit generally has not had a “full and fair opportunity to litigate the claims settled in that suit. Therefore, there is a general rule against nonparty preclusion. There are six recognized exceptions to the rule, of which the doctrine of virtual representation is not a part. The court noted that to apply claim preclusion to nonparties on the grounds of adequate representation, two things must be met at the minimum: 1) the interests of the nonparty and her representative must align, and 2) the previous litigant must know he or she was acting in a representative capacity for future parties in future lawsuit or the original court took care to protect the interests of the nonparty. Additionally, sometimes, adequate representation also required that there was notice of the original suit to the nonparties who were alleged to have been represented.
Here, the court noted that this doctrine is an inappropriate application of claim preclusion for three reasons. First, litigants are generally not bound by the actions of another (i.e., rule against nonparty preclusion) in order to ensure that parties are held liable only for their own actions. Although there are discrete exceptions to this broad rule, virtual representation is not one of them because this doctrine contravenes that idea of holding parties liable only for their own actions. Second, the virtual representation doctrine would hold a litigant responsible for a suit for which they were not noticed. Although this is acceptable in certain lawsuit types, those exceptions are not creatures of common law. Third, litigating these kinds of claims would take up a significant amount of judicial resources, which would go against the purpose of claim preclusion. Therefore, the court did not recognize the doctrine of “virtual representation.” However, if a legal relationship between Taylor and Herrick existed, then claim preclusion would apply. Therefore, the court vacated the judgment and remanded the case to give the lower courts a chance to determine whether Taylor, in pursuing the FOIA lawsuit, is acting as Herrick’s agent.