dissenting.
The district court below granted summary judgment to defendants on the basis that plaintiffs, a class of retirees who were employed by Tecumseh Products Co., were “virtually represented” by a previous group of Tecumseh retirees against whom judgment as a matter of law was rendered in an identical action. Because the virtual representation strain of res judicata has unquestionably been adopted as the law in this circuit, we are bound to affirm the district court under the undisputed facts of this case. Therefore, I dissent.
I.
The following is a list of the salient facts of this case, culled from the record:
1. The plaintiff class is comprised of retirees from Tecumseh. They allege that they were promised lifetime health insurance upon retirement and that defendants have unlawfully terminated this insurance coverage.
2. After their insurance benefits were reduced, the Tecumseh retirees formed a nonprofit organization for the explicit, sole purpose of “seeking] legal advice for reinstatement of promised benefits.” The organization was named Unified Tecumseh Products Hourly Retires (Tecumseh Division), or UTPHR.
3. UTPHR invited an attorney to address the group regarding the feasibility of suing Tecumseh. The first attorney who was consulted declined to represent the group.
4. UTPHR subsequently hired another attorney to file a claim against Tecumseh.
5. UTPHR authorized the filing of a claim against Tecumseh in the name of several of its members, including Spaulding, Carroll and Bishop.
6. UTPHR financed this initial suit. The president of UTPHR has testified that “[t]o the best of [his] ability,” UTPHR was to “foot the bill” for the first suit. Plaintiff argues that the secretary of the group “could recall no discussion regarding the financial liability for the lawsuit.” However, the deposition relied on for this contention indicates that the secretary did understand that UTPHR may be obligated to pay costs and attorney fees.
7. The claims advanced in this initial suit were virtually identical to those at issue in the present case.
8. This first suit was dismissed with prejudice.
9. Members of UTPHR and UTPHR itself both have an attorney-client rela*886tionship with plaintiffs counsel in the present case.
10. UTPHR authorized the filing of the present suit and the naming of Bittinger as the lead plaintiff.
11. Bittinger expected UTPHR to finance the present litigation. Contrary to plaintiffs contention, Bittinger’s deposition supports this fact. (“Q: Who is liable [for costs and fees]? A: The union members or retirees.”)
12. Bittinger is a member of UTPHR.
13. Bittinger has contributed to UTPHR with the understanding that the money was for litigation expenses, has attended at least two UTPHR meetings, and has attended at least one meeting at which an attorney was present to discuss the merits of a suit against Tecumseh.
14. Bittinger signed an affidavit in support of the first case, and has received communications from UTPHR regarding its litigation efforts.
15. Bittinger’s current counsel advised him that the first suit was in progress, and that his interests were being represented there.
16. Bittinger declined at that time to file independently.
17. Although UTPHR’s bylaws are not included in the Joint Appendix, it is an almost inescapable conclusion that the current class, which consists of all UTPHR members except those who lost the first action, constitutes a clear majority of UTPHR members, and would therefore be able to control UTPHR’s actions.
Although the plaintiff class has disputed some of these particulars in its briefs, the record evidence to which it has pointed undermines rather than supports its position. Most notably, the deposition testimony cited by plaintiff tends to bolster these factual conclusions. Thus, the unsupported statements in plaintiffs briefs are insufficient to raise an issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986) (citing Fed.R.Civ.P. 56).
In light of these facts, the district court held that Bittinger was “in privity” with UTPHR based on his participation and acquiescence in the first action; that his interests were “adequately represented” in the first suit; and that he was therefore precluded from raising claims that had already been adjudicated.
II.
A.
Our recent decision in Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 F.3d 1054 (6th Cir.1995), and the authorities cited therein, provide adequate guidance for the resolution of this case. Becherer involved separate lawsuits by two groups of investors in a luxury hotel against the developers of the hotel. The district court had barred the second group’s lawsuit on res judicata grounds, finding that the relationship between the two groups was “sufficiently close” to find privity. Both had the same interest in the case, “both were identically situated and both raise[d] the same causes of action.” Id. at 1070. Thus, the first group had virtually represented the second.
A panel of this court reversed, holding that merely having a close relationship and identical interests was insufficient to find res judi-cata. Id. at 1070-71. However, we noted a “strong possibility” that, on remand, the facts would demonstrate the need for applying the virtual representation doctrine and barring the claim. We stated that, if plaintiffs had, through a mutual association, “authorized, financed, and controlled the investigation and prosecution of the [first] plaintiffs suit, including hiring an attorney and arranging to pay him a combination retainer and contingency fee,” virtual representation would apply. Id. at 1071. In light of the facts in the ease at bar, this observation in Becherer should end our inquiry.
Here, UTPHR authorized, financed, and controlled the investigation and prosecution of both sets of plaintiffs’ suits. In fact, the group was explicitly formed for this purpose. And, in both cases, UTPHR made the decision who the named plaintiffs would be, hired the attorney, and assumed financial liability *887for the litigation. Thus, UTPHR is precluded from relitigating claims it has already lost; it should not be able to escape the effects of res judicata merely by naming a different plaintiff.
The majority opinion holds that, merely because the former class was never certified, the Bittinger plaintiffs cannot be claim precluded. However, this fact by itself provides insufficient grounds for reversing the district court. Under this interpretation, a group of allegedly injured persons with identical interests could form an organization through which to pursue their common claims against a common defendant, name a handful of members as representatives of the putative class, and then, if, for whatever reason, the action was dismissed before the class was certified, the organization could name several more members and bring the identical claim against the same defendant, with the sole exception that the first named plaintiffs would be precluded from being part of the class. Theoretically, under the majority’s reasoning, an organization such as UTPHR could follow this strategy until it was out of members. Not recognizing virtual representation under these facts is tantamount to holding that the doctrine does not exist at all. A leading commentator has noted as much: “It seems clear enough that an association should not be able to evade preclusion continually by averring that unidentified members are not bound and bringing successive suits by claiming injury to different identified members.” 18 Charles A. Wright, Arther R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4456.
B.
Besides the fact that UTPHR “authorized, financed, and controlled” both suits, the particular virtual representation factors upon which we relied in Becherer also require the preclusion of the claims at issue here. In Becherer, we distinguished three situations in which a nonparty to the first action will be considered “in privity” with an actual party: 1) when the nonparty has succeeded to a party’s interest; 2) when the nonparty controlled the first action; and 3) when the nonparty’s interests were “adequately represented” by a party in the first suit. Becherer, 43 F.3d at 1070. This case fits easily within either the second or third strains of privity, even when viewed from the vantage of Bittinger and the rest of his class, as opposed to UTPHR.
1.
“Control” means actual control in determining the legal theories and strategies to be employed. Benson and Ford, Inc. v. Wanda Petroleum Co., 833 F.2d 1172, 1174 (5th Cir.1987). In Benson and Ford, a person who testified for the plaintiff in the first suit, had the same attorney as the plaintiff, and later asserted the same facts and same legal theories in his own suit was not precluded from pursuing his claim. Id. at 1173. The Benson and Ford court held that “control” required a relationship akin to that between a president/sole shareholder and his or her company, a parent corporation and its subsidiary, an indemnitor and its indemnitee, or a liability insurer and an insured. Id. at 1174.
Here, we have just that sort of relationship. Bittinger and the other members of his class formed UTPHR to regain, through legal channels, their insurance benefits. Collectively, they owned and controlled the organization. The fact that UTPHR did not sue in its own name is immaterial and is a matter of form and not substance. UTPHR was the real party in interest in both cases. The current class of plaintiffs almost certainly formulated and adopted UTPHR’s litigation-related purpose and elected its board of directors. In this manner, the plaintiff class controlled UTPHR, and thus, the Spaulding litigation.
2.
A nonparty may have been “adequately represented” in one of two instances in a ease such as this: either the nonparty has the power to hold the party legally accountable, or the nonparty acquiesces in being represented by the party. Becherer, 43 F.3d at 1070. As we indicated in Becherer, virtual representation “ ‘demands the existence of an express or implied legal relationship in which parties to the first suit are accountable to *888non-parties who file a subsequent suit raising identical issues.’ ” Id. (quoting Benson and Ford, 833 F.2d at 1175). It does not require, despite the connotation of its title, that the first party have been competent in its prosecution of the first suit. Benson and Ford, 833 F.2d at 1175.
This court has previously bound the chairperson of a board of directors and the president of a company to a decision against the company, because the chairperson and the president controlled the company and therefore were in privity with it. Sanders Confectionery Prods., Inc. v. Heller Fin., Inc., 973 F.2d 474, 481 (6th Cir.1992). In Sanders, a shareholder in the company may not have been a privy. The district court held that the board owed a fiduciary duty to the shareholder, and thus “absent bad faith, collusion, or negligence by the board, the stockholder is deemed adequately represented.” Id. We reversed, finding that the company could not have brought one of the stockholder’s claims, and therefore could not have adequately represented him. Id. at 482.
Here, however, UTPHR is legally accountable to its members, and the claims it brought in Spaulding are essentially identical to the claims at bar. The Michigan Nonprofit Corporation Act provides in part:
A director or an officer shall discharge the duties of that position in good faith and with that degree of diligence, care, and skill which an ordinarily prudent person would exercise under similar circumstances in a like position.
Mich. Comp. Laws § 450.2541(1). Furthermore, subsection (5) of section 450.2541 indicates that members have a cause of action against directors for failing to perform the duties imposed by that section. Thus, there need be no implied legal relationship of accountability; here, it is express. And, as the district court found, all the claims involved in Bittinger were or could have been brought in Spaulding. Bittinger v. Tecumseh Prods. Co., 915 F.Supp. 885, 890 (E.D.Mich.1996).
Although the claims of this class of retirees could easily be dismissed based on control or accountability, the majority argues that the Federal Rules of Civil Procedure and the Restatement of Judgments preclude doing so. Neither Fed.R.Civ.P. 23 nor § 41 of the Restatement is irrelevant, but neither controls the result in this case. In the first place, the majority erroneously concludes that § 41 establishes a minimum threshold for finding privity. However, as the majority’s own opinion concedes, the Supreme Court has indicated that § 41 is but one example of privity, and that, in addition, adequate representation will also suffice. See Richards v. Jefferson County, Ala., — U.S. —, —, 116 S.Ct. 1761, 1766, 135 L.Ed.2d 76 (1996).
Additionally, the majority’s unhappiness with the doctrine of virtual representation and preference for the “crisp rules with sharp corners” of Rule 23 is water over the dam. As made obvious in Becherer, virtual representation is with us, and the only question is whether the district court erred in finding that Bittinger and the rest of the class were adequately represented in the first case, Richards in no way calls into question our analysis in Becherer, either directly or by implication.
Although the Richards Court reversed a finding of res judicata, its judgment rested on the facts that 1) the nonparties had no notice of the first suit in which an identical issue was litigated, and 2) the party to the first suit and the nonparty allegedly bound in the subsequent suit were “mere ‘strangers’ ” to each other. Richards, — U.S. at —, 116 S.Ct. at 1768. Obviously, Bittinger and the rest of the members of UTPHR had notice of the first suit; they initiated it. Further, Bittinger’s counsel informed him while Spaulding was pending that his interests were being represented there, and that filing separately would be duplicative. Also, the members of a common organization formed for bringing the instant litigation can hardly be said to be “mere strangers.”
3.
The final strain of virtual representation is that of acquiescence. “A person having a claim or defense paralleling or related to other litigation may agree that the outcome of the other litigation will be determinative of the issues in his ease.... An agreement to *889be bound by the result of another action ... may be implied from conduct and manifestations of intention.” Restatement (Second) of Judgments § 40 cmt. a. In Cauefield v. Fidelity and Casualty Co. of New York, 378 F.2d 876 (5th Cir.1967), nonparties had acquiesced to a judgment in light of the fact that their federal case had been continued in order for a state case, the result of which ultimately bound them, to be resolved. As the Fifth Circuit later pointed out in discussing Cauefield, the preclusive effect of the state court proceeding on the federal litigants arose out of a “tacit agreement” to “resolve all the numerous identical claims” in state court. Benson and Ford, 833 F.2d at 1176.
Bittinger acting individually would be unable to control UTPHR and arguably unable to hold it legally accountable. But Bittinger acquiesced in UTPHR’s representation in Spaulding, and cannot now be heard to complain about the result. He helped form the group for purposes of litigation. He was there on at least one occasion when an attorney spoke to the group about suing Tecumseh. He contributed money to support the group’s efforts, and signed an affidavit in furtherance of the litigation strategy. He received communications from UTPHR updating him on the progress of the litigation. He even consulted independent counsel who then specifically told him of his legal rights and that they were being represented by the Spaulding plaintiffs. Contrary to the assertion by the majority, this last fact demonstrates anything but that Bittinger did not believe Spaulding, Carroll, and Bishop were representing his interests. If Bittinger or his counsel had truly believed that, they could have filed an independent claim.
Further, it is unlikely that finding virtual representation in this case actually thwarts Rule 23’s preference for potential plaintiffs to wait and see, and not file multiple, independent claims. In the normal ease, in which potential plaintiffs merely have identical interests, and have not banded together to litigate their claims, these potential plaintiffs would not have to each file separately. Without taking the affirmative step of joining a litigation organization and without the class being certified, these plaintiffs would not have acquiesced in the representation of, nor controlled, nor could hold legally accountable, the named plaintiffs. A putative plaintiff could have merely refused to participate in the group in order to protect his or her right to present a future claim. Or, having participated, the individual could have withdrawn from the voluntary association once he or she became dissatisfied with its representation. Or, having participated and not withdrawn, the individual could have filed independently. Thus, adequate protection, consistent with Rule 23, exists for potential plaintiffs who have, and also those who have not, formed a litigation group.
Essentially, the Bittinger plaintiffs’ argument is no different than one which the indisputably precluded Spaulding plaintiffs could make. The Spaulding plaintiffs, too, could argue they had an insufficient chance to “opt out” before summary judgment was rendered, and that a rule precluding them from relitigating would in the future influence them to file three separate claims and to attempt to enforce issue preclusion against Tecumseh if any of them won. The majority attempts to make an untenable distinction between the Spaulding plaintiffs who were actual parties to the first litigation and the Bittinger class which was not. The fact that Bittinger was not an actual party to Spauld-ing cannot end the virtual representation inquiry; rather, it begins there.
III.
The district court’s findings that Bittinger’s interests were identical to the first plaintiffs’, that he participated in the initial suit, that he acquiesced in that suit, and that an “express or implied legal relationship” existed between Bittinger and UTPHR, are sufficiently supported by the essentially undisputed facts in the record. These facts indicate that the spirit and the letter of the claim preclusion doctrine are met by barring Bittinger’s claim.
All the members of the plaintiff class retired from the same company; they joined together in an association with the express purpose of reclaiming their retirement benefits; they chose to file suit, decided who should represent the class, and took up collections to pay for the legal fees; many or *890most completed affidavits in support of the litigation; and they were periodically appraised of the status of the suit. Bittinger not only knew of and participated, at least minimally, in the first suit, he declined to file his own action because his own counsel informed him that his interests were already being represented. At the very least, he acquiesced at that point to the representation, however unwise, of UTPHR counsel in the first case.
Therefore, the judgment of the district court should be affirmed.