Gene & Gene v. Biopay: No Second Chance On Class Certification After Interlocutory Appeal
Lest we fall behind with all the Nerdlaw fun and games, I feel compelled to highlight a new opinion that will be of interest to civil and appellate practitioners for its treatment of issues concerning class certification and law of the case.
The Fifth Circuit recently released Gene & Gene v. Biopay (pdf) in which the Court held that the putative class plaintiff did not get another whack at certifying a class after an interlocutory appeal rejecting their first effort had been remanded for "further proceedings not inconsistent with this opinion."
The opinion rejecting the second attempt invoked the "law of the case" doctrine providing that “an issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal.” Judge Clement wrote the Court's opinion.
The Court held that the District Court's continuing duty under Rule 23 to assess class certification orders did not trump the court's prior opinion denying class certification after discovery was complete, the issue fully briefed below and appellate resources already expended on the issue:
Discovery was complete when Gene successfully moved for class certification. When this court exercised its discretion and heard BioPay’s Rule 23(f) appeal, both parties had another full opportunity to argue the propriety of the class certification decision. When this court reversed, we held that “the determinative question of whether consent can be established via class-wide proof must, given the particular facts of this case, be answered in the negative. Gene has failed to advance a viable theory of generalized proof” concerning lack of consent. . . . The district court interpreted this language, along with this court’s remand “for further proceedings not inconsistent with this opinion,” as meaning “there is nothing in the opinion to preclude Gene from asserting a viable theory on remand.” . . .
[But] [t]he issue of class certification was expressly decided by this court in BioPay I and “that should be the end of the matter.”
Second, the "new evidence" on which the plaintiff relied was not really new at all and did not justify an exception to the law of the case:
Although BioPay did not produce the FileMaker Pro database in its native format in 2006, BioPay did produce selected screenshot printouts of that database at that time. Gene contends that it “now knows” that “an objective methodology exists to identify all class members who gave their consent” as a result of the disclosure of the database in its native format. But the screenshot printouts of the FileMaker Pro database produced in 2006 show every field needed to determine whether a particular contact may have consented to receive a fax. . . . [E]ven assuming that the “new” theory of identifying class members who did not give their consent to receive a fax is viable, the selected screenshot printouts demonstrate that this theory could have been advanced to the court in BioPay I. . . . [T]he evidence disclosed on remand was not “substantially different” from the evidence disclosed before BioPay I and that the “substantially different evidence” exception to the law of the case doctrine does not apply.
So, like Horton, everyone's favorite elephant, the Fifth Circuit "meant what it said and said what it meant." District courts and parties must follow the mandate, "one hundred percent."
A mulligan, in a game, happens when a player gets a second chance to perform a certain move or action. The practice is also sometimes referred to as a "do-over."(1).jpg)
I can no longer find the quote, but I heard it said somewhere that the definition of a "legal fiction" is "something only a lawyer could believe." I could not avoid that impression upon reading 
Sometimes I sits and thinks.
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