                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                     July 21, 2009 Session

                      JOSEPH R. GRIFFIN
                             v.
  CROMPTON CORPORATION, UNIROYAL CHEMICAL COMPANY,
 INC., BAYER AG, BAYER CORPORATION, BAYER POLYMERS LLC,
 RHEIN CHEMIE CORPORATION, DOW CHEMICAL COMPANY, and
                     BASF CORPORATION

                       Appeal from the Circuit Court for Shelby County
                          No. CT-002450-04 Jerry Stokes, Judge



                  No. W2008-02669-COA-R3-CV - Filed December 14, 2009


This appeal involves competing class action lawsuits. The plaintiff/appellant filed a lawsuit in
Tennessee on behalf of similarly situated consumers in Tennessee, asserting antitrust claims against
various urethane manufacturers. Meanwhile, a separate class action was filed in Florida against
some of the same manufacturers, asserting similar misconduct throughout the United States. The
class in the Florida lawsuit included consumers in twenty-five states, including Tennessee. The
Florida litigation settled, and the Florida court approved a plan to provide notice of the pending
settlement to all class members. The notice plan did not include individual notice to the Tennessee
plaintiff. The Florida notice plan was implemented. The Florida court then entered an order
approving the settlement, finding that the notice plan satisfied the requirements of due process and
gave class members the best notice practicable under the circumstances. Subsequently, in the instant
Tennessee proceedings, the manufacturers filed a motion for summary judgment, asserting that the
doctrine of res judicata prohibited relitigation of the matters settled in the Florida case. The trial
court granted summary judgment in favor of the defendant manufacturers. The plaintiff/appellant
appeals, arguing that the Florida notice was insufficient because he did not receive individual actual
notice. We affirm, finding that the Tennessee lawsuit is barred by the doctrine of res judicata.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which DAVID R. FARMER , J., and J.
STEVEN STAFFORD , J., joined.
B.J. Wade, Memphis, Tennessee, and William M. Audet, San Francisco, California, for the
Plaintiff/Appellant Joseph R. Griffin

James D. Wilson, Memphis, Tennessee, and Lawrence D. Rosenberg, Washington, District of
Columbia, for the Defendants/Appellees Bayer Corporation, Bayer MaterialScience LLC f/k/a Bayer
Polymers LLC, and Rhein Chemie Corporation

                                                    OPINION

                                      FACTS AND PROCEEDING BELOW

       Some time prior to 2004, government agencies in the United States, Canada, and the
European Union began investigating possible price-fixing and other collusive behavior by
manufacturers of urethane and urethane chemicals, used to manufacture a wide variety of products,
such as tires, furniture, packaging materials, apparel, and footwear. The investigations spawned
numerous class action lawsuits throughout the United States.

        On April 28, 2004, Plaintiff/Appellant Joseph R. Griffin (“Griffin”) filed the instant lawsuit
against Defendants Crompton Corporation, Uniroyal Chemical Company, Inc., Bayer AG, Bayer
Corporation, Bayer Polymers LLC,1 Rhein Chemie Corporation, Dow Chemical Company, and
BASF Corporation (collectively “Manufacturers”). Griffin’s complaint asserted that the
Manufacturers engaged in a “conspiracy . . . to fix, raise, maintain and stabilize the prices of urethane
and urethane chemicals sold in the state of Tennessee at supra-competitive levels,” and alleged
violations of the Tennessee Trade Practices Act,2 violations of the Tennessee Consumer Protection
Act,3 and common law monopolization. The lawsuit was filed as a class action in which Griffin
sought to represent a class of “[a]ll natural persons in the State of Tennessee who indirectly
purchased urethane and urethane chemicals manufactured by [the Manufacturers] at any time during
the period January 1, 1994, to the present.” The class was not immediately certified, and discovery
ensued.

       Meanwhile, a similar class action was filed in Florida on behalf of indirect purchasers of
urethane products, styled Plum, et al. v. Bayer AG, Bayer Corporation, and Bayer MaterialScience
LLC. The Florida complaint alleged that the defendants, manufacturers of urethane and urethane
chemicals, had engaged in a “conspiracy . . . with the deliberate purpose and effect of fixing, raising,
maintaining and stabilizing the prices” of urethane chemicals sold in Florida and throughout the
United States. The class in Plum included purchasers from approximately twenty-five states,
including Tennessee.


         1
         From the record, it appears that during the course of the proceedings Bayer Polymers LLC later became
known as “Bayer M aterialScience LLC.” For the sake of clarity, this opinion uses the latter name in reference to this
entity.
         2
             Tennessee Code Annotated § 47-25-101, et seq.
         3
             Tennessee Code Annotated § 47-18-101, et seq.

                                                         -2-
        Shortly thereafter, a settlement was reached in Plum in which the plaintiff class agreed to
release inter alia Bayer AG, Bayer Corporation, Bayer MaterialScience LLC, and Rhein Chemie
Corporation (collectively “Bayer defendants”) from any and all claims related to the indirect
purchase of urethane chemicals. The Bayer defendants, named in both the Tennessee and Florida
lawsuits, were represented by the same law firm in both proceedings.

       In an order entered July 10, 2007, the Florida court in Plum granted preliminary approval
of the settlement, conditionally certified the class for that purpose, and appointed a notice
administrator to supervise a plan to provide notice of the pending settlement to all class members.
The Florida notice plan consisted of the following: publication in the national editions of USA
Today and the New York Times; publication online for four consecutive weeks in the USA Today
website; and publication through the creation and maintenance of a specific settlement website that
was registered with multiple Internet search engines. The Florida notice plan did not require that
individual notice be sent to Griffin or any other class members. The notice plan was implemented,
but apparently Plaintiff/Appellant Griffin remained unaware of the Florida settlement.

        After notice was given in accordance with the Florida notice plan, the Florida court in Plum
held a “Final Approval Hearing” to consider the fairness, reasonableness, and adequacy of the
proposed settlement. Approximately a week later, on October 15, 2007, the Florida court entered
an order granting final approval of the settlement. In the order, the Florida court in Plum found that
the notice given to the class complied with the Florida Rules of Civil Procedure, “satisfied the
requirements of due process, was the best notice practicable under the circumstances, and constituted
due and sufficient notice” of the settlement agreement.

        Meanwhile, in Tennessee, the case at bar was still pending. During the interim, Griffin’s
claims against Defendants Dow Chemical Company and BASF Corporation were voluntarily
dismissed. Defendants Crompton Corporation, Uniroyal Chemical Company, Bayer Corporation,
Bayer MaterialScience LLC, and Rhein Chemie Corporation unsuccessfully sought dismissal for
failure to state a claim. Later, Griffin’s claims against Crompton Corporation and Uniroyal
Chemical Company, Inc., were dismissed in an agreed order. The Tennessee litigation remained
pending against Defendants/Appellees Bayer Corporation, Bayer MaterialScience LLC, and Rhein
Chemie Corporation.

        Subsequently, after the Florida court in Plum entered the order granting final approval of the
Florida settlement, Bayer Corporation, Bayer MaterialScience LLC, and Rhein Chemie Corporation
filed a motion for summary judgment, asserting that the Plum settlement order barred Griffin’s
claim. In response, Griffin asserted, inter alia, that he did not receive adequate notice of the class
settlement in Plum, and therefore his claims were not barred. Finding that the Plum judgment
satisfied due process and was entitled to full faith and credit, the trial court granted the motion for
summary judgment. Griffin now appeals.4

         4
          The record indicates that the trial court did not adjudicate Griffin’s claim against Bayer AG. In oral argument
on appeal, counsel for both parties indicated that Bayer AG was never served with process and had never appeared in
the matter. Until a party is served or makes an appearance, it is not considered a party for the purposes of an appealable
                                                                                                             (continued...)

                                                           -3-
                                 ISSUE ON APPEAL AND STANDARD OF REVIEW

        Slightly rephrased, Griffin raises the following issue on appeal: whether the trial court erred
in granting summary judgment and holding that his cause of action was barred by the common law
doctrine of res judicata and by Article IV, Section 1 of the U.S. Constitution, when individual notice
of the proposed settlement was not given to him, as an identified plaintiff and member of the class.
The Defendants/Appellees contend that the issues before this Court on appeal are whether the
Florida judgment is entitled to full faith and credit under Article IV, Section 1 of the U.S.
Constitution and thus not subject to collateral attack in Tennessee, and, in the alternative, whether
the notice provided in the Florida litigation satisfied the requirements of due process as to absent
class members such as Griffin.

        The decision to grant full faith and credit to a judgment from the court of another state is a
question of law. First State Bank of Holly Springs, Miss. v. Wyssbrod, 124 S.W.3d 566, 573 (Tenn.
Ct. App. 2003). Similarly, the determination as to whether a prior judgment has res judicata effect
is a question of law. Tareco Props., Inc. v. Morriss, No. M2002-02950-COA-R3-CV, 2004 WL
2636705, at *12 n.20 (Tenn. Ct. App. Nov. 18, 2004) (citing Morris v. Esmark Apparel, Inc., 832
S.W.2d 563, 566 (Tenn. Ct. App. 1991)). As such, our review is de novo with no presumption of
correctness afforded to the trial court’s decision. Lacy v. Cox, 152 S.W.3d 480, 483 (Tenn. 2004)
(citing S. Constructors, Inc. v. Loudon Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001); Presley v.
Bennett, 860 S.W.2d 857, 859-60 (Tenn. 1993)).

                                                      ANALYSIS

        On appeal, Griffin argues that the trial court erred in granting summary judgment on the basis
of res judicata and the full faith and credit clause of the United States Constitution, because he did
not receive actual notice of the pending settlement in the Florida court in Plum. He maintains that
Rule 23 of the Tennessee Rules of Civil Procedure5 and its counterpart in the Florida Rules of Civil
Procedure6 require individual, actual notice in this case. Griffin emphasizes that the same law firm

         4
          (...continued)
final judgment. See Griswold v. Income Properties, II, 880 S.W.2d 672, 677-78 (Tenn. Ct. App. 1993) (citing Fidelity
Sav. & Loan Ins. Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1475 (5th Cir. 1990); 59 A M . J U R . 2 D Parties § 8 (1987)).
Therefore, this Court has subject matter jurisdiction.
         5
          Rule 23 provides in pertinent part: “In any class action maintained under 23.02(3), the court shall direct to
the members of the class the best notice practicable under the circumstances, including publication when appropriate
or individual notice to all members who can be identified through reasonable effort.” T EN N . R. C IV . P. 23.03(2).
         6
             The pertinent Florida rule provides:

         As soon as is practicable after the court determines that a claim or defense is maintainable on behalf
         of a class, notice of the pendency of the claim or defense shall be given by the party asserting the
         existence of the class to all the members of the class. The notice shall be given to each member of the
         class who can be identified and located through reasonable effort and shall be given to the other
         members of the class in the manner determined by the court to be most practicable under the
                                                                                                           (continued...)

                                                           -4-
represented the Bayer defendants in both the Florida litigation in Plum and in the case at bar, and
thus individual actual notice to him, and not just notice by publication, would have been practicable
under the circumstances.

        The Full Faith and Credit Clause of the United States Constitution mandates that “ ‘[f]ull
faith and credit shall be given in each state to the public acts, records, and judicial proceedings of
every other state.’ ” Trustmark Nat’l Bank v. Miller, 209 S.W.3d 54, 56 (Tenn. Ct. App. 2006)
(quoting U.S. CONST. art. IV, § 1). “The full faith and credit clause requires that the common law
doctrine of res judicata be applied in one state to a judgment rendered in another state to the same
extent that it applied in the state of its rendition.” Wyssbrod, 124 S.W.3d at 573 (quoting Coastcom,
Inc. v. Cruzen, 981 S.W.2d 179, 181 (Tenn. Ct. App. 1998)). The doctrine of res judicata bars “a
second suit between the same parties or their privies on the same cause of action, with respect to all
the issues which were (or could have been) litigated in the former suit.” Id. at 573-74 (quoting
Sweatt v. Tenn. Dep’t of Corrs., 88 S.W.3d 567, 569 (Tenn. Ct. App. 2002)).

        In this appeal, Griffin argues that the notice given in the Florida litigation was insufficient
insofar as it did not include individual, actual notice to him. In the order granting final approval of
the Florida settlement, the Plum court explicitly considered, and resolved, this issue:

          The Court finds that the form and method of notice given to the Settlement Class,
          including extensive notice by publication through national publications, complied
          with the requirements of Fla. R. Civ. P. 1.220(e), satisfied the requirements of due
          process, was the best notice practicable under the circumstances, and constituted due
          and sufficient notice of the Settlement Agreement and its terms, Final Approval
          Hearing, and other matters referred to in the notice. The notice given to the
          Settlement Class was reasonably calculated under the circumstances to inform them
          of the pendency of the actions involved in this case, of all material elements of the
          proposed settlement, and of their opportunity to exclude themselves from, object to,
          or comment on the settlement and to appear at the Final Approval Hearing.

        This Court’s decision in First State Bank of Holly Springs, Miss. v. Wyssbrod, 124 S.W.3d
566 (Tenn. Ct. App. 2003), involved dissimilar facts but is nevertheless instructive. In Wyssbrod,
a Mississippi court entered a judgment against the appellant, a Tennessee attorney. The attorney
appealed the judgment to the Mississippi Supreme Court, and that Court affirmed the award against
the attorney. Id. at 570-71. Thereafter, a petition was filed in Tennessee to enroll and enforce the
Mississippi judgment. Id. at 571. Over the objection of the appellant attorney, the Tennessee trial
court enrolled the Mississippi judgment.

       On appeal to this Court, the appellant attorney asserted that the Mississippi trial court lacked
personal and subject matter jurisdiction and that insufficiencies in the service of process in the

          6
           (...continued)
          circumstances.

F LA . R. C IV . P. 1.220(d)(2).

                                                  -5-
Mississippi case violated due process. Id. at 574. In affirming the enrollment of the judgment, this
Court noted that the issues raised in the Tennessee appeal had been explicitly addressed and
considered by the Mississippi Supreme Court. Id. This Court then held that the appellant attorney’s
Tennessee appeal was barred by the doctrine of res judicata. Id. at 575.

        In the instant appeal, the Florida court in Plum explicitly addressed the issue of the adequacy
of the notice provided to all class members, including Griffin. The doctrine of res judicata bars
reconsideration of these issues by Tennessee courts. See Epstein v. MCA, Inc., 179 F.3d 641, 648
(9th Cir. 1999) (noting that absent class members’ due process rights are protected by the certifying
court initially, and thereafter by direct appeal within that state’s judicial system). Therefore, we find
no error in the trial court’s grant of summary judgment in favor of Defendants Bayer Corporation,
Bayer MaterialScience, LLC, and Rhein Chemie Corporation.

                                             CONCLUSION

       The decision of the trial court is affirmed. The costs of this appeal are taxed to the Appellant
Joseph R. Griffin, and his surety, for which execution may issue if necessary.




                                                        ___________________________________
                                                        HOLLY M. KIRBY, JUDGE




                                                  -6-
