                                                                                         10/24/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 July 18, 2018 Session

                      DESTINE JOHNSON, ET AL. v.
                 GENERAL MOTORS CORPORATION, ET AL.

              Appeal from the Chancery Court for Washington County
                      No. 35028 John C. Rambo, Chancellor
                      ___________________________________

                           No. E2017-01642-COA-R3-CV
                       ___________________________________


In this appeal, the plaintiffs alleged that the defendants conspired to prevent new cars
sold in Canada from being imported into Tennessee and the rest of the United States in
violation of Tennessee’s antitrust and consumer protection laws. The plaintiffs
contended that new car prices in Canada are significantly lower than prices for the same
cars in the United States and that the effect of the conspiracy was to restrict competition
and maintain significantly higher prices. The trial court approved a settlement agreement
and dismissed the case with prejudice against certain defendants. The plaintiffs appeal.
We affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.

Gordon Ball, Knoxville, Tennessee and Thomas C. Jessee, Johnson City, Tennessee, for
the appellants, Destine Johnson, Helen Jane Kerns, C. Wayne Bartley, and Melonie C.
Banks.

K. Erickson Herrin, Johnson City, Tennessee, and Carrie C. Mahan, Washington, D.C.,
for the appellees, Ford Motor Company, Ford Motor Company of Canada, Ltd., Daimler
Chrysler Canada, Inc., and Mercedes-Benz Canada, Inc..
                                          OPINION

                                     I. BACKGROUND

       In February 2003, various plaintiffs and plaintiffs’ counsel filed class action
complaints in federal and state courts throughout the United States, including the subject
action filed in the Chancery Court for Washington County (“the Chancery Court”). The
action in Washington County was filed against eighteen automobile manufacturers and
two automobile-dealer trade organizations.            The Washington County complaint
(“Complaint”) was filed by three law firms: Ball & Scott,1 Jessee & Jessee (two
Tennessee firms) and Cohen, Milstein, Hausfeld & Toll (“Cohen Milstein”). Cohen
Milstein is a national plaintiffs’ firm that also filed complaints in a number of other state
courts, teaming with local counsel in those jurisdictions just as they did in Tennessee.

       Complaint alleged antitrust claims under Tennessee law and sought to certify a
Tennessee-only class of consumers. The basis for these claims, in all of the federal and
state complaints, was that the automobile manufacturers and dealer trade associations had
conspired to restrict the export of nearly-new Canadian vehicles into the United States.

        The federal cases initially alleged a violation of the Sherman Act and sought the
certification of a national class of consumers. The federal cases were consolidated
through the Multidistrict Litigation (“MDL”) process before the Honorable D. Brock
Hornby in the United States District Court for the District of Maine. See In re New
Motor Vehicles Canadian Export Antitrust Litig., MDL No. 1532. In 2004, following
Judge Hornby’s dismissal of the federal plaintiffs’ damages claims, the federal plaintiffs
amended their complaint in the MDL action to assert claims under state laws, including
the Tennessee Trade Practices Act and the Tennessee Consumer Protection Act, the same
statutes the plaintiffs plead in Complaint. See Tenn. Code Ann. § 47-25-101 et seq.;
Tenn. Code Ann. § 47-18-101 et seq.

        In June of 2004, the federal court in conjunction with a number of state courts
entered a Joint Coordination Order, which established a unified process for pretrial
proceedings and discovery. This order designated the federal MDL as the “lead case”
and provided that all discovery, including the present action, proceed through the MDL.
The Coordination Order provided all signatories, including counsel in the present case,
not only with access to all discovery in the federal case but also specifically allowed them
to participate in all discovery in the federal case, so as to protect their interest. As a result
of the Coordination Order, there was no unique discovery to the case at bar. Lawyers
from Cohen Milstein signed the Coordination Order and were active participants in
discovery and in all the companion cases. There is no dispute that no attorney from
Cohen Milstein ever made a physical appearance on behalf of the plaintiffs in the

       1
           Ball & Scott is now known as Gordon Ball, PLLC.
                                              -2-
Chancery Court. However, Cohen Milstein was never removed from the case.

       To prosecute the companion federal and state cases, the plaintiffs’ counsel,
representing both federal and state plaintiffs, agreed upon and formalized a cooperative
representation of the state and federal plaintiffs. In these efforts, a Coordinated Action
Counsel committee was formed, with representation from state plaintiffs’ counsel, and
unified the decision making process by entering into a “confidential joint prosecution
agreement.” Both state and federal counsel were involved in this agreement.

       As the federal litigation moved forward, state plaintiffs’ counsel participated in
and made appearances and arguments on the record in the federal action. D. Small of
Cohen Milstein reported to the federal court the status of state cases, including
Tennessee, on June 16, 2004. Cohen Milstein has explicitly stated that they appeared in
the federal case on behalf of the state plaintiffs, including Tennessee.

        Cohen Milstein worked closely in the negotiations for the settlement agreements
with the settling defendants. Cohen Milstein also signed, on behalf of their state plaintiff
clients, each of the settlement agreements reached with the settling defendants. When the
plaintiffs’ counsel sought an award of attorney’s fees from the federal court, Cohen
Milstein submitted a sworn declaration from one of its lawyers to the court describing its
activities on behalf of the state plaintiffs in the federal litigation:

              Drafted and reviewed pleadings and other papers for filing,
              including complaints, motions, regarding class certification,
              discovery, summary judgment, and settlement papers;
              investigated the claims asserted in the coordinated action,
              including     discovery    through     document      requests,
              interrogatories, and examination by deposition; corresponded
              with experts; corresponded with coordinated action counsel;
              engaged in settlement discussions with opposing counsel;
              reviewed and analyzed briefs filed by the defendants; traveled
              to and attended status conferences and hearings before the
              courts.

       The plaintiffs in the MDL moved to certify 20 state damage classes, including a
class of Tennessee consumers. The court granted this certification, but on March 28,
2008, the First Circuit vacated the district court’s decision. See In re New Motor Vehicles
Canadian Exp. Antitrust Litig., 522 F. 3d 6, 8-9, 29 (1st Cir. 2008). The First Circuit held
that the theory was deficient, speculative and could not establish the impact. Id. at 28-
29.

    While this was occurring, the defendants moved for summary judgment in the
MDL action. The consolidated plaintiffs’ group filed a joint opposition to the motion.
                                        -3-
Cohen Milstein signed on to the brief in opposition on behalf of the various state
plaintiffs.

       On July 2, 2009, the federal court granted summary judgment and entered
judgment on the claims of all remaining federal plaintiffs, which were brought under the
laws of 19 different states, including Tennessee. In re New Motor Vehicles Canadian
Exp. Antitrust Litig., 632 F. Supp. 2d 42, 51 n. 13, 62-63 (D. Me. 2009). The district
court held that the federal plaintiffs could not prove harm from their claims. Id. at 58-59,
63. The court examined the law of all 19 states and determined that each state –
including Tennessee -- requires evidence of injury, and this was not proven. Id. The
federal court entered judgment in favor of the defendants on August 24, 2009.

       All the while, this case was pending in the Chancery Court. On September 8,
2005, the Chancery Court entered an order deferring further action in the case until Judge
Hornby ruled on the certification issues. Several defendants were voluntarily dismissed
from this action: BMW of North America; BMW Canada, Inc.; DaimlerChrysler AG;
NADA; Nissan North America, Inc.; American Honda Motor Co., Inc.; Honda Canada
Inc.; CADA; Toyota Motor Corporation; Toyota Motor Sales, U.S.A., Inc.; and Toyota
Canada, Inc.

       Following the federal summary judgment decision and the active participation of
the state action plaintiffs in the joint prosecution of the federal action, the Ford Motor
Company defendants (“Ford”) moved on behalf of certain defendants for judgment in the
Minnesota companion case. The Minnesota court ruled that the federal judgment bound
the Minnesota plaintiffs and entered judgment for all the defendants. See Lerfald v. Gen.
Motors Corp., No. 27-CV-03-3327 (Minn. Dist. Ct. Hennepin Cnty. Sept. 17, 2010).
Applying the doctrine of claim preclusion, the court explained that the states are bound
by the federal judgment even though they were not formally parties. Id. The court set
forth the manner in which plaintiffs, through counsel, actively participated in the joint
prosecution of the federal action, and determined that because plaintiffs “were adequately
represented . . . in the federal litigation upon the same subject matter, res judicata
principles bar plaintiffs from reasserting their claims before state . . . court.”

       Following their success in the Minnesota court, Ford filed a similar motion in the
Arizona companion case. Arizona likewise held that res judicata bars the claim because
the plaintiffs were adequately represented in the MDL action. See Maxwell v. Gen.
Motors Corp., No. CV 2003-003925 (Ariz. Super. Ct. Maricopa Cnty. Mar. 1, 2011).
The court found that both sets of plaintiffs made the same claims under the same theories.
Further, the court noted, “it is difficult to imagine a more compelling case for preclusion
based on adequate representation.” A very similar motion has also been successful in
New Mexico and Wisconsin. See Corso v. Gen. Motors Corp., No. D-1010-CV-2003-
00668 (N.M. 1st Jud. Dist. Ct. Jan. 19, 2018); Rasmussen v. Gen. Motors Corp., No. 03-
CV-001828 (Wisc. Cir. Ct. Mar. 19, 2018).
                                               -4-
       In the midst of these successful motions, the Chancery Court of Washington
County was faced with considering a similar res judicata motion. The Chancery Court
rejected the plaintiffs’ arguments and held:

             Plaintiffs here were in privity with the plaintiffs in the federal
             action because the same Tennessee statutes were at issue in
             both cases and the interests of both sets of plaintiffs were
             aligned; the federal plaintiffs understood themselves to be
             acting in a representative capacity and the federal court took
             care to protect the interests of the non-party state plaintiffs,
             including the Tennessee state plaintiffs; and notice of the
             federal action was clearly provided to the Plaintiffs here. For
             these reasons, the Plaintiffs here were adequately represented
             in the federal action.

      The Chancery Court further held that privity existed due to the representation by
Cohen Milstein,

             who actively participated in the federal action on behalf of the
             state plaintiffs, including the Tennessee state plaintiffs, by
             entering into a confidential Joint Prosecution Agreement
             between the state and federal plaintiffs’ attorneys, which was
             designed to protect the interests of all plaintiffs, state and
             federal; by being part of the Coordinated Action Counsel
             Committee, which was also created to represent and protect
             the interests of all plaintiffs, state and federal; by participating
             in strategic decisions regarding the claims, theories,
             discovery, and hiring of experts; by appearing in the federal
             action on behalf of these Plaintiffs; and by signing on to the
             opposition to the summary judgment motion that ended the
             federal action.

       Based on the Chancery Court’s finding that Ford was entitled to judgment, the
court held that the reasoning of the judgment applied equally to all remaining defendants
in the action, and thus entered judgment in favor of FCA Canada, Inc. f/k/a
DaimlerChrysler of Canada, Inc., and Mercedes Benz Canada, Inc. (“Chrysler
Defendants”), the only other remaining defendants. In granting Ford’s res judicata
motion, the Chancery Court explicitly considered and rejected that Cohen Milstein did
not represent the plaintiffs. The court noted that Cohen Milstein had been one of the
firms filing the complaint that initiated the case and that they were never withdrawn. The
court reviewed the facts showing Cohen Milstein’s involvement in the federal action on
behalf of state plaintiffs and concluded that there was no dispute as to whether adequate
                                              -5-
representation is present.

        The plaintiffs filed a timely appeal in this case after the Chancery Court ruled on
the res judicata motion.

                                        II. ISSUES

       A.     Whether the Chancery Court correctly granted the res judicata
              motion below and entered judgment for the appellees based
              upon a 2009 ruling and subsequent entry of a judgment in the
              companion federal action, thus providing the due process
              protections required for the application of res judicata.

       B.     Whether the Chancery Court was correct when it entered
              judgment for all remaining defendants against whom identical
              claims were asserted because res judicata precludes the
              appellants from asserting those claims in their entirety.

                             III. STANDARD OF REVIEW

       A trial court’s decision that a lawsuit is barred by principles of res judicata
presents a question of law reviewed de novo by this court. In re Estate of Boote, 198
S.W.3d 699, 719 (Tenn. Ct. App. 2005). The Chancery Court’s decision carries no
presumption of correctness. In re Estate of Goza, 397 S.W.3d 564, 566 (Tenn. Ct. App.
2012).

                                    IV. DISCUSSION

       The Chancery Court held that the appellants, who advanced the same Tennessee
antitrust and consumer protection claims as the federal Tennessee plaintiffs, based on the
same evidence and theory of harm, are bound by that earlier judgment. Under accepted
principles, “res judicata bars a second suit between the same parties or their privies on the
same cause of action with respect to all issues which were or could have been litigated in
the former suit.” Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn.
1995); Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989) (quoting Massengill v. Scott,
738 S.W.2d 629, 631 (Tenn. 1987)).


                                             A.

       The appellants, who advance the same theories and arguments based on the same
facts as the federal plaintiffs, had a full and fair opportunity to litigate the matter in the
MDL action. This action is almost a copy of the federal action, arising out of identical
                                             -6-
factual circumstances. Judge Hornby’s decision in the federal action constitutes a final
decision on the merits of those claims, and therefore, this action is barred. Five other
state courts have ruled on this same issue of whether the plaintiffs in the companion state
actions are bound by the federal summary judgment decision.2 The findings of these
states support the Chancery Court’s ruling. Based on the relevant principles of law, prior
case law and the facts of the present case, we find that the Chancery Court’s decision
must be affirmed.

       In Taylor v. Sturgell, the United States Supreme Court recognized several
exceptions to the rule against nonparty preclusion. 553 U.S. 880, 894-895 (2008). Of
these exceptions, two apply to the case at hand: where plaintiffs (1) were “adequately
represented” in a prior litigation or (2) exercised control over that prior litigation. Id.
The evidence supports the Chancery Court’s determination that both of these exceptions
are easily satisfied. It is commonly accepted in Tennessee that “different parties are in
privity if they stand in the same relationship to the subject matter of the litigation.”
Trinity Indus., Inc. v. McKinnon Bridge Co.,77 S.W.3d 159, 185 (Tenn. Ct. App. 2001).
There can be no dispute that both the federal plaintiffs, as well as the plaintiffs in this
case, stood in the same relationship to the subject matter of the litigation in their
respective courts.

                                             1.

       In Taylor, the Court made clear that representation of a nonparty is “adequate” for
preclusion purposes if: (1) the interest of the nonparty and its representative are aligned;
(2) either the party understood itself to be acting in a representative capacity or the
original court took care to protect the interests of the nonparty; and (3) notice of the
original suit has been given to the persons alleged to have been represented. Taylor, 553
U.S. at 900 (citing Richards v. Jefferson Cnty., 517 U.S. 793, 801-802 (1996); Hansberry
v. Lee, 311 U.S. 32, 43 (1940)).

       The Chancery Court held that there was no dispute as to the presence of adequate
representation. The first element is the alignment of the interest of the nonparty and its
representative. This element is clearly satisfied. The parallel proceedings between
federal and Tennessee plaintiffs were identical. They contained the same subject matter,
claims, and evidence. The Chancery Court noted that: “[t]he subject matter[,] claims, the
record, it’s all the same.” This led the Chancery Court to conclude: “the federal and
Tennessee plaintiffs had identical interests because the actions, the parallel actions were
identical.” We agree with the trial court on this finding. It is perfectly reasonable to

       2
         Minnesota, Arizona, New Mexico, and Wisconsin granted motions essentially identical
to the motion before the Chancery Court and entered judgment for all defendants on all claims.
The California court also found that res judicata barred plaintiffs’ claims in the parallel
California case, based upon that state’s “primary rights doctrine.”
                                            -7-
believe that two separate parties suing for exact claims on the exact same theory would
have an exact same interest in the action.

        The next element that must be proven to establish “adequate representation” is the
party acting in a representative capacity. Counsel for the plaintiffs’ actions in the federal
case could be described as a highly active role. Cohen Milstein vigorously participated in
litigating the federal case from the start. There was a written joint prosecution agreement
that was, according to counsel’s sworn declaration, “intended to protect the interests of
all plaintiffs.” Further, plaintiffs concede this element in their brief by stating that “[a]s
State Action Counsel . . . Cohen Milstein was actively involved in the representation of
state plaintiffs in other state courts and in the coordinated federal actions.”

       The national collaboration of counsel, giving the states a voice in the federal suit,
exemplifies that the federal plaintiffs knew they were acting as representatives to the
states. Coordinating plaintiffs’ counsel is on the record informing the federal court that
they had “reached a confidential agreement providing for coordinated prosecution of all
the actions.” This protection and representation results from those attorneys in the
federal suit acting as counsel for the state plaintiffs.

        Counsel for the plaintiffs represented them in federal court, in the negotiation of
the joint prosecution agreement, in the committee that participated in controlling all of
the litigation against the defendants, in the development of the legal and expert theory of
the case, in the negotiation of settlements, and finally in the unsuccessful opposition to
the defendants’ motion for summary judgment. Therefore, we find that the appellants in
this case are bound by the decision on that motion. Accordingly, we agree with the trial
court on this finding. Based on the record presented, we agree that the party acted in a
representative capacity.

       Further the Chancery Court held that even if there was no action in a
representative capacity, the second element was met based on the court taking care to
protect the interest of the nonparty. As stated in the Joint Coordination Order, the federal
court understood itself to be responsible for conducting “the lead case.” The joint
discovery plan provided for state plaintiffs’ protection in all phases of discovery, and the
federal court permitted state plaintiffs’ counsel to participate to protect their interests in
the federal forum. Further, Judge Hornby sent updates to the state court judges to keep
them advised on the developments in the federal case. All of this information led the
Chancery Court to hold that, “the federal court took care to protect the interests of the
nonparty state plaintiffs, including the Tennessee state plaintiffs.” Accordingly, we agree
with the Chancery Court that the federal court carefully protected the interests of the
present plaintiffs.

      The final factor that is required to satisfy “adequate representation” is that notice
of the original suit has been given to the persons alleged to have been represented.
                                           -8-
Taylor states that notice is not always required. 553 U.S. at 901 n.11. However, in the
present case, it is undisputed that the appellants here had such notice.

       Based on the satisfaction of these three elements, we hold that the plaintiffs were
“adequately represented” in the federal action. Therefore, an exception to the rule against
nonparty preclusion is present. We agree with the trial court that res judicata bars this
claim.

                                              2.

       The plaintiffs are also bound by the outcome of the federal proceeding on the
independent ground that they were part of the group of plaintiffs that ‘“assumed control’
over the litigation in which that judgment was rendered.” Taylor, 553 U.S. at 895.
Tennessee courts have described this standard as:

              [W]henever one has an interest in the prosecution or defense
              of an action, and he, in the advancement or protection of such
              interest, openly takes substantial control of such prosecution
              or defense, the judgment . . . is conclusive for and against him
              to the same extent as if he were . . . the real party to the
              action.

Tenn. Eastman Co. v. Adams, 381 S.W.2d 269, 272 (Tenn. 1964).

       The plaintiffs here exercised such control as part of the group of plaintiffs whose
attorneys collaboratively made strategic and procedural decisions pursuant to their joint
prosecution agreement. The Chancery Court explained that the plaintiffs:

              [e]xercised control over the federal litigation through their
              counsel Cohen Milstein, who actively participated in the
              federal action on behalf of the state plaintiffs, including the
              Tennessee state plaintiffs, by entering into a confidential Joint
              Prosecution Agreement between the state and federal
              plaintiffs’ attorneys, which was designed to protect the
              interests of all plaintiffs, state and federal; by participating in
              strategic decisions regarding the claims, theories, discovery,
              and hiring of experts; by appearing in the federal action on
              behalf of these Plaintiffs; and by signing on to the opposition
              to the summary judgment motion that ended the federal
              action.

Throughout the federal litigation, counsel for the state plaintiffs reiterated that the
strategic decisions were the result of coordination between the parties intended to protect
                                            -9-
the interest of all plaintiffs – state and federal. This is exemplified by the state plaintiffs’
joinder, through counsel, in the very summary judgment filings that led to the issuance of
the federal court judgment.

        Either adequate protection of the plaintiffs’ interest, or their exercise of control
over the federal litigation, is sufficient by itself to establish privity between the Tennessee
plaintiffs and the federal plaintiffs, making the federal judgment binding upon the
Tennessee plaintiffs. Both factors are clearly present in this case, as found by the
Chancery Court. We agree that the Chancery Court correctly granted Ford’s res judicata
motion and entered judgment for the defendant based upon a 2009 ruling and subsequent
entry of a judgment in the companion federal action, thus providing the due process
protections required for the application of res judicata.

                                              B.

       The Chancery Court entered judgment in favor of all the defendants remaining in
this case. The plaintiffs contend that the trial court erred in granting judgment based on
res judicata to all remaining defendants. We must agree that the Chancery Court acted
properly when it entered judgment for all remaining defendants against whom identical
claims were asserted because res judicata precludes the appellants from asserting those
claims in their entirety.

       Res judicata is a claim preclusion doctrine that bars the re-litigation of entire
claims – not individual defendants. State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178
(Tenn. Ct. App. 2000) (citations omitted); Brown v. Shappley, 290 S.W.3d 197, 201
(Tenn. Ct. App. 2008). In Tennessee, a trial judge can dismiss an action sua sponte,
whether one, all, or no defendants moved the court, based on res judicata. Patton v.
Estate of Upchurch, 242 S.W.3d 781, 791 (Tenn. Ct. App. 2007). Further, the Tennessee
Supreme Court has construed Rule 41.02 of the Tennessee Rules of Civil Procedure to
“authorize a trial judge, sua sponte, to dismiss an action upon adequate grounds.” Harris
v. Baptist Mem’l Hosp., 574 S.W.2d 730, 31 (Tenn. 1978) (citations omitted).

        The application of this law to the present case is pretty straightforward. Res
judicata bars the entire claim – not just individual defendants. Further, the judge can
dismiss an action sua sponte pursuant to res judicata. As previously explained, the
plaintiffs’ claims are barred due to res judicata. Therefore, the trial court properly
dismissed all remaining defendants from the action.




                                             - 10 -
                                 V. CONCLUSION

       The judgment of the trial court is affirmed, and the case is remanded for such
further proceedings as may be necessary. Cost of the appeal are taxed to the appellants,
Destine Johnson, Helen Jane Kerns, C. Wayne Bartley, and Melonie C. Banks.




                                                  _________________________________
                                                  JOHN W. MCCLARTY, JUDGE




                                         - 11 -
