December 9, 2010
It’s not every day that an appellate judge weighs in on allegedly rusty dryers, sexist comments, Simon Cowell, and what motivates attorneys in class-action lawsuits – all in a single decree.
It all starts with a man from Illinois who buys a clothes dryer from Sears. According to Sears, the appliance features a stainless-steel drum. But according to the dryer buyer, the supposedly rust-proof drum is leaving rust stains on his clothes. So the man sues Sears, accusing the company of deceptive advertising. No, wait…let’s make that a class-action lawsuit.
The state court in Illinois denies the petition and decertifies the class action. Undeterred, the dryer buyer’s attorney files a copycat suit in California on behalf of another Sears dryer buyer. Sears responds by petitioning the U.S. District Court for the Northern District of Illinois to enjoin the copycat class action. This time, the judge rules against Sears.
Sears appeals the ruling to the U.S. Court of Appeals for the Seventh Circuit, where the company prevails. In his decree denying en banc rehearing, Judge Richard Posner takes the opportunity to respond in detail to the accusations made by the plaintiff’s attorney in the case, which the court had earlier characterized as a “near-frivolous” lawsuit.
Here’s an excerpt from the opening paragraphs of the order:
… [I]n view of the accusations leveled in the petition by the plaintiff’s lawyer, Clinton A. Krislov, against the panel’s decision, we have decided that a further statement […] would be helpful to readers of the panel opinion and perhaps even Mr. Krislov, whose accusations are over the top, as we shall now explain, and who may wish to moderate his fury.
[…] Krislov […] asked us to quiz our wives as to whether they worry that a “stainless steel” clothes dryer might cause rust stains on the clothes being dried unless the dryer’s drum was made entirely of stainless steel. The wives unanimously answered “no.” Given Krislov’s challenge (ask your wives), that should have ended this litigation. (And speaking of gender, we note Krislov’s remark at the oral argument: “Not to be sexist, your honor, but maybe we should have this en banc so some of the female judges on this court could sit and might weigh in.”[…])
A few paragraphs later, Judge Posner writes:
The focus of Krislov’s concern is language in our opinion that he regards as ad hominem. […] His specific concern is with the phrases “settlement extortion,” “near-frivolous,” “pugnacious,” “pertinacious to a fault,” and “a nuisance” that appear in the opinion. He ignores the evidence and analysis that supports these characterizations, and similar characterizations by other judges, and commentators, concerned with class actions that are believed to be abusive. He ignores the right and indeed the duty of judges to criticize lawyers who try the patience of other members of the bar, and the courts.
[…] And in his current petition he says that “the Court’s clearly prejudiced opinion presents an unsupported, op-ed style portrayal of class action attorneys that paints with a brush so broad that it demonizes all class action attorneys as inherently motivated to sell out their clients for small recoveries, to obtain large fees […] Indeed, the Panel’s role as the self-assured Simon Cowell of the Circuits demeans not just us, but the Court as well.”
Judge Posner concludes:
The criticisms in our opinion of the tactics employed by some class action lawyers are not criticisms made by judges alone, let alone by judges of the Seventh Circuit alone or members of this panel alone. Our opinion gave some examples: “The defendant wants to minimize outflow of expenditures and the class counsel wants to increase inflow of attorneys’ fees. Both can achieve their goals if they collude to sacrifice the interests of the class.”
The judge underscores his point by listing examples of similar concerns expressed in law reviews (12 articles), other circuit court opinions (10 cases), and decisions handed down by the Supreme Court (4 cases). You can find links to all 26 at the end of the order, available on Westlaw (Thorogood v. Sears, Roebuck and Co. (7th Cir.)).
For more entertaining “Hot Docs” like this one, plus timely news and analysis of litigation developments around the country, be sure to check out the Westlaw News & Insight – National Litigation website.