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This week, we filed this cert. petition in Clark v. Wyeth. The case presents the question whether an absent class member may collaterally attack a class action judgment on the ground that the class representatives provided constitutionally inadequate representation. The court of appeals acknowledged a square circuit conflict. The Supreme Court previously granted certiorari to resolve the conflict in Dow v. Stephenson, but divided 4-to-4 with Justice Stevens not participating.

We also filed two cert. petitions last week.

Bahar v. Michigan Bell Telephone Co.
presents two questions: first, whether an individual’s suit seeking to vindicate a private interest may be extinguished on the ground that the government litigated the same claim; and if so, second, whether such a suit can be extinguished when the government pursued its own interests, which were not consistent with the interests of the individual plaintiffs in the later suit. Our clients are telephone company customers who are seeking a refund of illegally imposed charges, but the telephone company argued (and the lower courts agreed) that our clients’ suit was precluded by an earlier suit between the phone company and various Michigan officials, notwithstanding that our clients were not parties to the prior suit. Tom Goldstein was primarily responsible for the petition; our co-counsel in the case are Richard Dorman of Mobile, Alabama’s Cunningham Bounds and Lawrence Owen of East Lansing, Michigan.

We also filed this petition in Mouelle v. Gonzales, an immigration case out of the Eighth Circuit. At issue in the case is whether the Attorney General may issue a regulation that categorically prohibits paroled aliens (that is, aliens who have been given temporary leave to enter the country) in removal proceedings from applying to become permanent legal residents when Congress has specifically provided that such aliens may apply if they meet criteria specified in the statute. The Eighth Circuit held in our clients’ case that such a regulation is a valid, while three other circuits — the First, Third, and Ninth — have held to the contrary. We worked on this case in conjunction with Pam Karlan and the Stanford Law School Supreme Court Litigation Clinic, and in particular with Stanford students Angie Cha, James Darrow, and Pete Patterson.