Civil Procedure II, Pages 728–733

Taylor v. Sturgell

Supreme Court of the United States, 2008


Herrick, an F-45 owner, filed a FOIA request asking the FAA for any technical documents on the F-45. The FAA denied the request, finding that the documents were exempt as trade secrets. The district court granted summary judgment to the FAA, and the Tenth Circuit affirmed.

Petitioner, Herrick's friend, then submitted his own FOIA request and also sued when his request was likewise denied.

Procedural History:

  • The district court granted the FAA summary judgment because of claim preclusion.

  • Court of appeals affirmed.


Does virtual representation preclude petitioner's claim?

Respondent's Argument:

Virtual representation is a proposed seventh exception to the rule against nonparty preclusion. It would allow claim preclusion whenever the relationship between a party and a non-party is close enough to bring the second litigant within the judgment. Court should adopt this rule and make the "close enough" determination.


LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 732, Paragraph 3

A party's representation of a nonparty is "adequate" for preclusion purposes only if, at a minimum:

  1. The interests of the nonparty and her representative are aligned; and
  2. either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty. In addition, adequate representation sometimes requires
  3. notice of the original suit to the persons alleged to have been represented. In the class-action context, these limitations are implemented by the procedural safeguards contained in Federal Rule of Civil Procedure 23.


  1. The fundamental nature of the general rule is that a litigant is not bound by a judgment to which he was not a party.
  2. Virtual representation would authorize preclusion based on identity of interest and some kinds of relationship between parties and nonparties without the procedural protections of Rule 23.
  3. A diffuse balancing approach to nonparty preclusion would likely create more problems than it solves.


Virtual representation does not apply her. Court of appeals's J vacated, and case remanded.


Does not seem to reject VR, but defines it very narrowly.