Premier Electrical Construction Co. v. National Electrical Contractors Association, Inc.

This antitrust case presents questions concerning issue preclusion, horizontal price fixing with a union's assistance, and the Noerr-Pennington doctrine. The questions arise from an agreement in 1976 between the National Electrical Contractors Association, Inc. (the Association), which comprises firms doing 50-60% of the nation's electrical contracting work, and the International Brotherhood of Electrical Workers, AFL-CIO (the Union), which represents employees of these and many other contractors. The agreement established the National Electrical Industry Fund (the Fund), and members of the Association pay 1% of their gross payroll to the Fund to finance its activities. The Fund helps to defray the costs of the Association's bargaining with the Union on behalf of its members and administering their collective bargaining agreements. The Fund also pays for some research and educational programs. The 1976 agreement calls for the Union to obtain, as part of any collective bargaining agreement with a firm that is not a member of the Association, a requirement that the firm contribute 1% of its gross payroll to the Fund.

* Firms that were outside the Association objected to the Union's effort to divert 1% of each employer's payroll to the Fund. Characterizing the contribution requirement as a cartel, they filed an antitrust suit in the federal court in Maryland in 1977. Two of the plaintiffs in the Maryland case asked that it be certified as a class action on behalf of all electrical contractors that did not belong to the Association. Despite the requirement of Fed.R.Civ.P. 23(c)(1) that the court determine "[a]s soon as practicable" whether a suit may be maintained as a class action, the district court allowed that issue to slide for three years. It then simultaneously decided the merits and the application for certification of the class. National Constructors Ass'n v. National Electrical Contractors Ass'n, Inc., 498 F.Supp. 510 (D.Md.1980). The court held the contribution requirement unlawful per se under Sec. 1 of the Sherman Act, 15 U.S.C. Sec. 1, see 498 F.Supp. at 529-43. It also certified a class of electrical contractors that do not belong to the Association and have signed agreements with the Union requiring them to make the 1% contribution to the Fund. Id. at 544-51. The court denominated this as a class under Rule 23(b)(3), id. at 548, which required that each member be given notice and offered an opportunity to opt out. Certification under Rule 23(b)(3) was appropriate, the judge concluded, because all members of the class had identical claims for damages, which could be computed in a mechanical fashion. Id. at 549-50. The district court then deferred the required notice while the Association, Union, and Fund took an appeal under 28 U.S.C. Sec. 1292(a)(1) from the injunction against their demand that firms pay the 1% fee.

On September 16, 1980, seven days after the Maryland court filed its opinion, Premier Electrical Construction Co.--a member of the class that had been certified in Maryland--filed this suit in Chicago. Premier's complaint tracked that of the plaintiffs in Maryland, with one exception. The plaintiffs in the Maryland case wanted an injunction and damages of treble the amounts they had paid into the Fund. Although Premier had signed contracts containing the 1% requirement, it had refused to pay and therefore could not obtain the kind of damages the class representatives had requested. Because Premier had refused to pay, the Fund had filed three suits (one for each year of the contract) in state courts of Illinois. Premier defended these suits, arguing among other things that the contribution requirement violated the Sherman Act. These state suits proceeded for a while as the Maryland litigation was ongoing. They were stayed after a time, and the Fund dismissed them voluntarily when it lost the Maryland case. Premier's complaint in federal court asked for treble damages based on the expense, including attorneys' fees, of defending the contract actions in Illinois.

Two weeks after filing the suit in Chicago, Premier informed the Maryland court that it would move to consolidate the cases. It did not file the necessary motion, however, until February 1982, when the court in Chicago demanded that Premier show cause for its inaction. Premier quickly filed with the Judicial Panel on Multidistrict Litigation a motion to transfer the case under 28 U.S.C. Sec. 1407(c)(ii). This was a peculiar motion, because Sec. 1407 allows transfer and consolidation only for pretrial proceedings, and the Maryland case was already on appeal from a dispositive judgment. The Panel denied the motion in light of "the more advanced stage of the Maryland action" and the "minimal number of actions involved in this litigation". Premier did nothing further concerning the Maryland litigation until March 1983.

Meanwhile the Fourth Circuit affirmed the Maryland court's decision. National Electrical Contractors Ass'n, Inc. v. National Constructors Ass'n, 678 F.2d 492 (4th Cir.1982). The court of appeals agreed with the district court that the 1% requirement was unlawful per se as price fixing. Premier did not participate in the appeal, and apparently no one asked the Fourth Circuit to address the propriety of the class certification. The Association, Union, and Fund asked the Supreme Court to review the case. While the petition was pending, the case was settled. The defendants consented to the entry of an injunction against collecting the 1% contribution from firms that did not belong to the Association. They also offered to create a fund of $6 million, on which class members could draw in proportion to their contributions to the Fund since 1977.

On learning of the terms of the proposed settlement, Premier objected that only payments into the Fund could be a basis of access to the $6 million. In April 1983 it asked the Maryland court to defer still further the giving of notice under Rule 23 and to allow it to add and litigate claims on behalf of a new subclass that had incurred expenses of litigation. The subclass Premier proposed would include contractors sued, threatened with suit, or subject to any other efforts to collect the fee. Premier apparently wanted payments to this subclass to come on top of the $6 million. The Maryland court concluded that Premier had tarried far too long in proposing a new subclass and rebuffed its requests. It stated that the case had "progressed to the point that ... it would be totally unfair to interrupt it by permitting intervention along the lines requested and staying the distribution of the class notice and redefining the class. It seems to me that Premier, being a member of the class in this suit, should, if it so desires, object to the settlement, either that or seek to opt out of the settlement and pursue any further claims it may have elsewhere." The notices to the class were issued in April 1983 and told class members that they could accept the benefits of the settlement, object to the settlement (see Rule 23(e)), or opt out of the class. Premier opted out. The district court approved the settlement, and in August 1983 the defendants dismissed their petition for certiorari. 463 U.S. 1234, 104 S.Ct. 26, 77 L.E.2d 1449 (1983).

The Maryland case was over, but the Chicago case had just begun. There had been only limited discovery, and Premier wanted to keep things that way. It asked the Chicago court to hold that the defendants are bound by the Fourth Circuit's decision that they violated the Sherman Act. The defendants opposed this request and added the contention that the sort of damages Premier requested are unavailable under the Sherman Act unless the state litigation was a "sham". Both sides moved for summary judgment.

The district court held that the defendants are bound by the Maryland decision under principles of issue preclusion (collateral estoppel, here the offensive, non-mutual variety). Premier Electrical Construction Co. v. IBEW, 627 F.Supp. 957, 960-63 (N.D.Ill.1985). The court concluded that class members should be entitled to the benefit of preclusion even when they opt out, because preclusion will reduce claims on judicial resources.1 This did not carry the day for Premier, however, because the court also held that the Noerr-Pennington doctrine precludes the recovery as damages of the costs of defending the Fund's suits. Id. at 964-66. Premier had not alleged that the suits were shams in the sense that the Fund did not care whether it won, or that the Fund brought them for the sake of the costs they would impose rather than because of the prospect of winning.

The court did not grant the defendants' motions for summary judgment, however, because of the possibility that Premier could show some other kind of compensable injury. Premier asked the district court to certify its order for an interlocutory appeal under 28 U.S.C. Sec. 1292(b), arguing that the court's interpretation of the Noerr-Pennington doctrine warranted immediate review. In the course of requesting the certification, Premier conceded that it did not expect to be able to show any other injury--at least not enough other injury to make further litigation worthwhile. The district court took this as a concession that the case is over and entered judgment for the defendants.

We start with the district court's conclusion that Premier is entitled to the benefit of the Maryland court's holding that the defendants violated the Sherman Act. If the question of preclusion had arisen in 1967, there would have been a ready answer. Most federal courts would apply estoppel only among the parties to the original suit. This is the mutuality requirement--the rule that unless a party would have obtained the full benefit of any victory against the person relying on preclusion, it does not bear the risk of loss. See Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 127, 32 S.Ct. 641, 642, 56 L.Ed. 1009 (1912); Restatement of Judgments Sec. 93 (1942). Had the settlement broken down and the defendants won this case in the Supreme Court, Premier would not have been bound. Until recently, that would have prevented Premier from taking advantage of a loss by the defendants in the Maryland case.

We choose 1967 as the benchmark because the preceding year the Supreme Court rewrote Fed.R.Civ.P. 23. One of the complaints about the old Rule 23 was that it allowed courts to entertain what were called "spurious class actions"--actions for damages in which a decision for or against one member of the class did not inevitably entail the same result for all. One party could style the case a "class action", but the missing parties would not be bound. A victory by the plaintiff would be followed by an opportunity for other members of the class to intervene and claim the spoils; a loss by the plaintiff would not bind the other members of the class. (It would not be in their interest to intervene in a lost cause, and they could not be bound by a judgment to which they were not parties. Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940).) So the defendant could win only against the named plaintiff and might face additional suits by other members of the class, but it could lose against all members of the class. This came to be known as "one-way intervention", which had few supporters. A principal purpose of the 1966 revision of Rule 23 was to end "one-way intervention". See the Advisory Committee's note to new Rule 23(c)(3), and, e.g., C. Wright, A. Miller & M. Kane, 7B Federal Practice and Procedure Sec. 1789 at 266-67 (2d ed. 1986). See also H. Kalven & M. Rosenfield, The Contemporary Function of the Class Suit, 8 U.Chi.L.Rev. 684 (1941).

The drafters of new Rule 23 assumed that only parties could take advantage of a favorable judgment. Given that assumption, it was a simple matter to end one-way intervention. First, new Rule 23(b)(3) eliminated the "spurious" class suit and allowed the prosecution of damages actions as class suits with preclusive effects. Second, new Rule 23(c)(3) required the judgment in a Rule 23(b)(3) class action to define all members of the class. These members of the class were to be treated as full-fledged parties to the case, with full advantage of a favorable judgment and the full detriments of an unfavorable judgment. Third, new Rule 23(c)(1) required the district courts to decide whether a case could proceed as a class action "as soon as practicable" after it was filed. The prompt decision on certification would both fix the identities of the parties to the suit and prevent the absent class members from waiting to see how things turned out before deciding what to do. Finally, new Rule 23(c)(2) allowed members of a 23(b)(3) class action to opt out immediately after the certification in accordance with 23(c)(1). So a person's decision whether to be bound by the judgment--like the court's decision whether to certify the class--would come well in advance of the decision on the merits. Under the scheme of the revised Rule 23, a member of the class must cast his lot at the beginning of the suit and all parties are bound, for good or ill, by the results. Someone who opted out could take his chances separately, but the separate suit would proceed as if the class action had never been filed. As the Advisory Committee put it: "Under proposed subdivision (c)(3), one-way intervention is excluded; the action will have been early determined to be a class or a nonclass action, and in the former case the judgment, whether or not favorable, will include the class".

The drafters of new Rule 23 did not anticipate that courts would give preclusive effect to judgments in the absence of mutuality. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), and Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), which severely curtailed the mutuality doctrine in federal litigation, washed away the foundation on which the edifice of Rule 23 had been built. A rule requiring each person's decision whether to be bound by the judgment to precede the decision on the merits works only when the choice is conclusive. The curtailment of the mutuality requirement meant that a decision to opt out might not be conclusive. The drafters also did not anticipate the degree to which district judges would disregard Rule 23(c)(1). Rules 23(c)(1) and (2) together force class members to choose the binding effect of the judgment in advance of decision on the merits. (If they can choose later, it's one-way intervention all over again.) But district courts frequently postpone deciding whether a case may be maintained as a class action until the case has been settled or a decision has been rendered on the merits. That is what happened in the Maryland litigation. The district judge decided the merits and certified the case as a class action simultaneously, more than three years after it had been filed. The judge then did not give the Rule 23(c)(2) notice for another 2 1/2 years, by which time the judgment had been affirmed and the case had been settled. So by the time Premier and the other members of the class were asked to choose, they knew how the case had come out. Delay in certifying the class is regrettably frequent, even though appellate courts continually condemn the practice. E.g., Glidden v. Chromalloy American Corp., 808 F.2d 621 (7th Cir.1986); Watkins v. Blinzinger, 789 F.2d 474, 475 n. 3 (7th Cir.1986) (collecting other cases, which in turn collect still more).

The district court in Chicago concluded that these two unanticipated developments make all the difference. (Actually the district court did not refer to Rule 23, but its holding logically entails a belief that the decision made in 1966 to do away with one-way intervention is no longer binding.) It relied principally on Parklane, which allowed a private plaintiff in a securities case to obtain the benefit of a judgment against the defendant in an action brought by the Securities and Exchange Commission. The Court criticized the mutuality doctrine for "failing to recognize the obvious difference in position between a party who has never litigated an issue and one who has fully litigated and lost", 439 U.S. at 327, 99 S.Ct. at 649, and for wasting the time of courts (and parties) on the way to a duplication of the initial result. Even if the second case differed from the result of the first, this might mean that the second decision was the error. If the first litigation is complete, and the parties have good reason to present their cases fully, the decision is as likely to be accurate as any later outcome, and there is accordingly no reason to endure a series of similar cases. The application of the first outcome to all parties is as accurate as a sequence of cases with varying outcomes. Still, the Court recognized, the use of non-mutual, offensive issue preclusion might leave the defendant being pecked to death by ducks. One plaintiff could sue and lose; another could sue and lose; and another and another until one finally prevailed; then everyone else would ride on that single success. This sort of sequence, too, would waste resources; it also could make the minority (and therefore presumptively inaccurate) result the binding one. Parklane therefore gave the district courts discretion not to use offensive issue preclusion. It stated: "The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where ... the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel." Id. at 331, 99 S.Ct. at 651-52.

The parties concentrate their attention on this phrase, from which each draws comfort. Premier points out that both the Panel on Multidistrict Litigation and the Maryland court declined to allow it to press its theory of damages in Maryland. The defendants observe that Premier was a party to the Maryland case for six years before voluntarily opting out, and that it could have raised its damages theory there had it not slept through most of that period. The district judge in Chicago thought Premier closer to the mark. We doubt, however, that Parklane contains the answer to our problem. The Supreme Court did not address the extent to which class members may use issue preclusion after opting out of the class; indeed it did not mention Rule 23. The rules that govern the extent to which one judgment in a federal case precludes litigation in a second federal case are part of the federal common law. Cf. University of Tennessee v. Elliott, --- U.S. ----, 106 S.Ct. 3220, 3225-27, 92 L.Ed.2d 635 (1986) (even the effect of state judgments in federal litigation is a matter of common law when 28 U.S.C. Sec. 1738 is inapplicable). Issue preclusion is made available when it is sound to do so in light of the effects on the rate of error, the cost of litigation, and other instrumental considerations. When there are good reasons to allow relitigation of a category of disputes, preclusion does not apply. So the Court held in United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984), that offensive non-mutual issue preclusion may not be invoked against the federal government.

If the scope of issue preclusion is a matter of federal common law, then Parklane is not a sufficient reason to upset the balance struck in Rule 23. Under the Rules Enabling Act, 28 U.S.C. Sec. 2072, the Rules of Civil Procedure have the effect of statutes. A development in the common law of judgments is not a reason to undo a statute, to treat a thorough rethinking of the law as so much fluff. The revision of Rule 23 in 1966 does away with one-way intervention in class actions. It should stay done-away-with until the Supreme Court adopts a new version. Whether class members should get the benefit of a favorable judgment, despite not being bound by an unfavorable judgment, was considered and decided in 1966. That decision binds us still.

One could reply that the effect of the 1966 revision on one-way intervention was just a supposition of the drafters. They enacted the rule, not its effects, and the translation from rule to effects depended on mutuality of estoppel. When the mutuality requirement died, the effects of Rule 23 changed. It is not judicial legislation to recognize this alteration, so long as all of the actual commands of Rule 23 are obeyed. Compare Illinois Brick Co. v. Illinois, 431 U.S. 720, 733 n. 14, 97 S.Ct. 2061, 2068 n. 14, 52 L.Ed.2d 707 (1977) (distinguishing between a supposition that underlies a statute and the rule of law contained in the statute), with Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (treating a fundamental supposition, without which the statute would have made no sense, as a rule of law). Maintaining the line between the expected consequences of a rule and the contents of the rule itself is one of the most delicate tasks of the judicial system. Doubtless the Framers of the Constitution expected that a consequence of their structure of government would be a federal government small in relation to the states, and they predicted that political processes would protect property from regulation or expropriation. They did not anticipate the effects of cheap communications and transportation on the size of the national government, but that does not make the governmental structure unconstitutional; they did not predict how the commerce clause could be used to regulate property, see Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), but that does not make the regulation invalid. Courts have declined to treat the suppositions underlying the Constitution's structure as part of our governing law--but there are exceptions. The fourth amendment rests on some suppositions about privacy that have been the basis of rules regulating wiretapping, as the supposition underlying the first amendment that willing listeners would be allowed to hear the speech that the amendment protects has been turned into a rule of positive law. All of this is related to the difficult question whether the text, structure, history, or intentions underlying a rule should be given the primary role. That is, when is the rule of law to be found in the words (plus their structure and history), and when are the words just evidence of the "real" rule, which is to be teased out of the purposes of those who wrote and approved the rule and their expectations about the rule's consequences? Questions of this sort continue to divide the Supreme Court. E.g., Tashjian v. Republican Party of Connecticut, --- U.S. ----, 107 S.Ct. 544, 555-56, 93 L.Ed.2d 514 (1986), in which the majority treated the unqualified language of Art. I Sec. 2 as simply evidence of the real rule, which would be located in the reasons that text was adopted, while Justices Stevens and Scalia, in dissent, id. at 557-59, treated the language as definitive.

The Supreme Court has not decided when predictions about the effects of a rule should be treated as part of the rule. If suppositions are themselves law, then judges must rummage the minds of the drafters, and what they find there may have more in common with the judges' beliefs than with the authors'. Worse, a transmutation from "intent" to law bypasses the processes that form the heart of the constitutional method of legislation. Cf. INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Yet laws are designed to produce effects by the application of prescribed means. When the court can both perceive the planned effect and follow the means to the letter, it can fulfill the whole plan, and almost always should. Perhaps it is not possible to reduce to a verbal formula the complex process by which the domain of a rule is fixed. It is unlikely we shall make much headway in this opinion. We need not. Even if a court sometimes may allow the effects of the 1966 revision of Rule 23 to diverge from the course planned by the Advisory Committee, such a modification would not be appropriate when the very problem at hand was anticipated and resolved. See Polk v. Montgomery County, 782 F.2d 1196, 1202 (4th Cir.1986) (holding that a class member who opts out may not take advantage of a judgment favoring the class); Sarasota Oil Co. v. Greyhound Leasing & Financial Corp., 483 F.2d 450, 452 (10th Cir.1973) (same, although before Parklane ). But see Saunders v. Naval Air Rework Facility, 608 F.2d 1308, 1312 (9th Cir.1979) (stating, without much discussion, that a class member who opts out of the damages portion of a class suit seeking an injunction may use the preclusive force of the decision granting an injunction as the jumping-off point in pursuit of damages).

We also lack a sound reason to deviate from the plan of 1966. The district court concluded that application of issue preclusion would produce judicial economy. 627 F.Supp. at 962-63. See also In re Transocean Tender Offer Securities Litigation, 455 F.Supp. 999 (N.D.Ill.1978). "Judicial economy" sounds like a sure-fire Good Thing--especially to the ears of judges. Conservation of resources is the principal reason the Supreme Court gave for its decision in Parklane. And it has been used as a reason for preclusion when there are two actions, one for injunction and one for damages. For example, we held in Crowder v. Lash, 687 F.2d 996, 1011-12 (7th Cir.1982), that a member of the class in an injunctive case may use the findings underlying the grant of injunctive relief to preclude defendants from relitigating certain issues in a separate suit for damages. Cf. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) (a judgment that an employer did not discriminate against an entire class does not necessarily preclude a member of the class from showing, in a separate action, that the employer discriminated against her, because the issues in the pattern-or-practice class suit may be different from the contentions in the individual action). When there are bound to be two separate actions, as we assumed in Crowder, a plaintiff who does not opt out of the injunctive action is entitled to keep his victory, as he will be bound by defeat. (Crowder is a case of mutual estoppel.) It serves the interest of economy to have as few issues litigated in the second suit as possible. The district court took our case as a similar situation. Yet this assumes that there will be two suits against the Association, Union, and Fund. Parklane was a case of this type. The SEC's suit and the private suit were bound to go forward independently; nothing the court could do would reduce the number of cases that had to be litigated. If there are bound to be two suits, why not cut down on the number of issues? The district court treated this case as similar to Parklane, but it is not. Here there were not bound to be two suits. There were two suits in fact, but there need not have been.

An approach that asks how to hold down the costs of litigation given the existence of multiple suits is an ex post perspective on judicial economy. It is the wrong perspective when inquiring about the consequences of a legal rule. A decision to make preclusion available to those who opt out of a class influences whether there will be multiple suits. The more class members who opt out may benefit from preclusion, the more class members will opt out. Preclusion thus may increase the number of suits, undermining the economy the district court hoped to achieve. The effect of the legal rule may be the opposite of the effect of applying preclusion to a given case. To determine whether a rule is beneficial, a court must examine how that rule influences future behavior. The influence of a rule of preclusion cannot be known for sure, but we are not confident that there would be net benefits.

This case makes the point. The class action in Maryland lasted six years. If Premier had known that it must start from scratch in Chicago, it might well have stayed in the Maryland litigation. It had the right under Rule 23(e) to protest the settlement and obtain a decision about its adequacy. Instead of finishing the litigation in Maryland, Premier walked away to try again, fortified by its belief that it could win in Chicago but not lose. If others behave similarly, the application of issue preclusion would multiply the number of suits and undermine the benefit of class actions in centralizing litigation. Reducing the cost to a class member of carrying the litigation to another forum also would complicate and reduce the number of settlements. The defendants in Maryland thought that for $6 million and an injunction they would purchase peace. Premier wants to deny defendants that boon, but not to refund any of the $6 million. If enough other class members had opted out, the settlement would have collapsed, and the Maryland litigation would have dragged on--perhaps before the Supreme Court, perhaps in the district court as the defendants contested damages. If defendants anticipate significant opting out, they also will reduce the amounts they offer in settlement, which may in turn make it worthwhile for more parties to opt out. The more attractive it is to opt out--and giving the parties who opt out the benefit of preclusion makes it very attractive--the fewer settlements there will be, the less the settlements will produce for the class, and the more cases courts must adjudicate. This is not judicial economy at work!

Perhaps this is misleading. There may be economies in adjudicating liability in a single action while having separate actions to determine damages. See Note, Offensive Assertion of Collateral Estoppel by Persons Opting Out of a Class Action, 31 Hastings L.Rev. 1189 (1980) (arguing that issue preclusion should be available to those who opt out if and only if their theory of recovery is sufficiently distinctive from that pressed by the representative plaintiffs). The potential saving from breaking one complex case down into simpler ones accounts for decisions such as Crowder, which allow the plaintiff in a damages case to take advantage of the outcome of an injunctive case. But see Cooper, which, in declining to bind the single plaintiff by the adverse result of a class action seeking an injunction on a different theory of liability, establishes that a sequence of suits with preclusive effect is not always preferable.

We doubt that there are benefits in separating questions of liability and damages when the first class action also seeks damages. Different members of the class may suffer different kinds of damages, but this is a reason to establish subclasses (or to appeal the approval of a one-sided settlement) rather than to increase the number of separate suits. If the result of the first class action binds only the parties, then class members who have different theories of damages will be induced to present them as early as possible in order to have a subclass certified. If the differences in the kinds of damages suffered are indeed substantial, perhaps it is mistaken to certify any class. See Rule 23(b)(3) (class action appropriate only if common questions predominate). If, as Premier contends, a class member dissatisfied by the measure of damages selected by the representative party may pick up his portfolio and start again, there will be an incentive to stand on the sidelines and see how things turn out. If the first case proceeds well, the bystander will take the benefit, and if not it will try again. The benefits of presenting common claims in a single forum will be lost. Premier should have presented its theory of damages in the Maryland suit as quickly as possible, because it cast doubt on the district court's belief (498 F.Supp. at 545, 549-50) that common questions predominated and that damages could be computed mechanically. It would be an unwelcome development to induce class members to keep to themselves reasons to doubt the propriety of class certifications.

One more consideration. The district court believed that issue preclusion would ensure equal treatment of members of the class. Equality, like judicial economy, is desirable; the judicial system uses a variety of devices, including stare decisis and rules of preclusion, to treat likes alike. But the threat to equal treatment of class members came from Premier itself. The class members who stayed in the Maryland litigation were treated equally. Premier wanted to be treated differently; it wanted a unique measure of damages. This measure might well be appropriate (we discuss this below); it might even produce "equality" from a different standpoint. "Equality" is an open term. See P. Westen, The Empty Idea of Equality, 95 Harv.L.Rev. 537 (1982). Equal with respect to what is the essential question, the answer to which must come from some independent source. Maybe only a unique measure of damages will lead to equal treatment with respect to injury suffered (that is, to recompense for an equal percentage of the damage incurred). Still, Premier's decision to opt out is the best indicator that it wanted special treatment. It wanted a greater recovery without risk. It could have had equal treatment (though not necessarily with identical effect) by staying in the Maryland case.

We conclude that class members who opt out may not claim the benefits of the class's victory. Like the Supreme Court's decision in Mendoza, this is a categorical rule. The Court forbade application of nonmutual