The "Simon Cowell" Of The Circuits?
The "Stainless Steel Dryer That Wasn't" Saga Continues
.jpg)
The Seventh Circuit Court of Appeals has issued three opinions in Thorogood v. Sears, Roebuck and Company, an action brought on behalf of a class allegedly harmed because Sears marketed a "stainless steel" clothes dryer that was not 100% stainless steel. It reversed the district court's certification order (opinion and intheiropinion), it affirmed the dismissal of the case as moot after Sears made an offer of judgment that exceeded the plaintiff's possible individual damages (opinion and intheiropinion), and it recently reversed and remanded to the district court for the entry of an injunction under the All Writs Act barring the continued prosecution of a mirror class action in California (opinion and intheiropinion). In its All Writs opinion, the panel made some fairly strong comments about potential for abuse in class actions, including a characterization of counsels' tactics as "close to settlement extortion." Class counsel took exception to several of the panel's remarks in its petition for rehearing and for rehearing en banc, at one point characterizing the panel as the "Simon Cowell of the Circuits.” The panel voted to deny the petition, and no judge requested a vote on rehearing en banc. But the "over the top" accusations in the petition prompted a six page response from the panel instead of the more typical one-liner. The panel stood quite firm on the merits, pointed out the many instances where class counsel actually ignored the points made in the opinion, and repeated and expanded upon the potentials for abuse inherent in class action litigation. The bottom line is that the Seventh Circuit believes the stainless steel dryer class action litigation is a classic example of class action abuse. Only time will tell if class counsel accepts the message.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select