Thorogood v. Sears

• Decision Date: 02 November 2010
• Docket Number: No. 10-2407.,10-2407.
• Citation: 624 F.3d 842
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Steven J. THOROGOOD, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellant.

624 F.3d 842

Steven J. THOROGOOD, individually and on behalf of all others similarly situated, Plaintiff-Appellee,

v.SEARS, ROEBUCK AND COMPANY, Defendant-Appellant.

No. 10-2407.

United States Court of Appeals,Seventh Circuit.

Submitted Oct. 12, 2010.

Decided Nov. 2, 2010.

Clinton A. Krislov, Krislov & Associates, Chicago, IL, for Plaintiff-Appellee.

Philip M. Oliss, Squire, Sanders & Dempsey, Cleveland, OH, for Defendant-Appellant.

Before POSNER, KANNE, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

In this third appeal arising out of a near-frivolous class action suit by Steven Thorogood, Sears Roebuck, the defendant, asks us to reverse the district court, which has denied Sears's motion to enjoin a virtually identical class action suit-a suit filed in the name of Martin Murray by counsel who represented Thorogood, and pending in a federal district court in California. Murray v. Sears, Roebuck & Co., No. 4:09-cv-5744-CW (N.D.Cal.). Judge Leinenweber, who had presided over Thorogood's suit and to whom Sears's motion for an injunction was referred, ruled that Sears could obtain adequate relief against being harassed by repetitive litigation by pleading collateral estoppel in Murray's suit. Sears appeals.

Class counsel challenge the jurisdiction of the district court over Sears's motion and our jurisdiction over Sears's appeal. Thorogood's suit was resolved by the entry of a final judgment in favor of Sears without reservation of jurisdiction, and so was no longer pending when Sears asked the district court to enjoin the California suit. But Sears's motion had been filed under the “All Writs Act,” which authorizes a federal court to issue “all writs necessary or appropriate in aid of [its] jurisdiction[ ] and agreeable to the usages and principles of law,” 28 U.S.C. § 1651(a), and which has been interpreted to empower a federal court “to issue such commands ... as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” United States v. N.Y. Tel. Co., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). This power “extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.” Id. at 174, 98 S.Ct. 364 (citations omitted). For the application of these principles in class action suits, see, e.g., In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, 333 F.3d 763, 768 (7th Cir.2003); In re VMS Securities Litigation, 103 F.3d 1317, 1323-24 (7th Cir.1996); Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1200-01 and n. 4 (7th Cir.1996).

A person seeking such an order applies to the court that issued the judgment. No other basis of jurisdiction need be shown. In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation, supra, 333 F.3d at 768; Bryan v. BellSouth Communications, Inc., 492 F.3d 231, 236 (4th Cir.2007); Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir.2004). So class counsel's jurisdictional challenge fails.

The district court at our direction had decertified Thorogood's class, 547 F.3d 742 (7th Cir.2008), and Sears argues that by filing a nearly identical suit Thorogood's lawyer has defied that judgment. Consistent with the principles set forth above, “the All Writs Act empowers a federal court to enjoin parties before it from attempting to relitigate decided issues and to prevent collateral attack of its judgments.” In re March, 988 F.2d 498, 500 (4th Cir.1993); see also TBG, Inc. v. Bendis, 36 F.3d 916, 925-27 (10th Cir.1994); Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1524 (9th Cir.1983). Thus the only question is whether the district judge abused his discretion in ruling that a plea of collateral estoppel in the California litigation would give Sears adequate relief from the consequences of the refusal of Thorogood's lawyer-who found someone (Murray) willing to be the nominal plaintiff in a copycat suit in California-to accept defeat.

We remind the reader of the quixotic nature of the quest on which Clinton Krislov, the plaintiff's lawyer in Thorogood's case (including the current appeal), as well as in the California litigation (though he has co-counsel there, as we'll have occasion to note), has embarked. Thorogood, a Tennessean, bought a Kenmore-brand clothes dryer from Sears (Kenmore is a Sears brand name). The words “stainless steel” were imprinted on the dryer, and point-of-sale advertising explained that this meant that the drum in which the clothes are dried was made of stainless steel. Thorogood claimed to have thought that this meant that the drum was made entirely of stainless steel, whereas part of the front of the drum-a part the user would see only if he craned his head inside the drum-is made of a ceramic-coated “mild” steel, which is not stainless steel because it doesn't contain chromium. Thorogood alleged that the “mild” steel in the drum rusted, and stained his clothes.

Lawyer Krislov filed a class action suit on behalf of Thorogood and a half million other purchasers, scattered across 28 states plus the District of Columbia, of Kenmore dryers that had been advertised as having stainless steel drums. The suit claimed that the sale of a dryer so advertised is deceptive unless the drum is made entirely of stainless steel because otherwise it might rust and by doing so stain the clothes in the dryer. Thorogood's individual claim was based on Tennessee's consumer protection statute but the suit alleged that the unnamed class members had identical claims under similarly worded state consumer protection statutes in their own states, including California.

The suit was originally filed in a state court but was removed to federal district court under the Class Action Fairness Act, 28 U.S.C. §§ 1332(d), 1453, 1711-1715. Judge Leinenweber certified the class. We accepted Sears's appeal from the order of class certification, Fed.R.Civ.P. 23(f), and reversed, ordering the class decertified. We called the case “a notably weak candidate for class treatment.” Not only did common issues of law or fact not predominate over the issues particular to each purchaser of a stainless steel Kenmore dryer, as Rule 23(b)(3) requires; there were, we said, “ no common issues of law or fact.” 547 F.3d at 746-47 (emphasis in original).

It was well-nigh inconceivable that the other members of the class had the same understanding of Sears's advertising as Thorogood claimed to have. Sears hadn't advertised the dryers as preventing rust stains on clothes; and it's not as if such stains are a common concern of owners of dryers-there was no suggestion of that either. Stainless steel appliances are popular even among consumers, undoubtedly the vast majority, who do not expect a dryer to cause rust stains. Stainless steel does not rust, and that is certainly a plus, clothing stains to one side. But ceramic doesn't rust either. Many people prefer a stainless steel appliance because it is highly durable, does not stain (we are referring here to stains on the machine, rather than on the clothes being dried in it), and, when polished, looks better (some people think) than ceramic-but not because they think that a dryer drum that contains a bit of “mild” steel, which anyway is coated with ceramic, would cause rust stains on their clothes. Consumers whose preference for stainless steel is unrelated to an anxiety (probably unreasoning) about rust stains would not be upset to discover that a small, inconspicuous portion of the drum was made of a different kind of steel that anyway was coated with ceramic and hence was rust proof.

Advertisements for clothes dryers mention a host of features that might matter to consumers, such as price, size, electrical usage, appearance, speed, and controls, but not the prevention of clothing stains attributable to rust. The litigation of the class members' claims would thus have devolved into a series of individual hearings in which each class member who wanted to pursue relief against Sears would testify to what he understood to be the meaning of a label or an advertisement that identified a clothes dryer as containing a stainless steel drum. Few if any of them, we imagine, would share Thorogood's concerns, which, judging from the record in his case and the argument of his lawyer, are a confabulation. But the important point is that there would be no economies of class action treatment because there would be no issues that could be resolved in a single, class-wide evidentiary hearing.

An additional consideration in deciding whether to allow the claims in a suit to be litigated as a class action is relief. Thorogood was seeking on behalf of himself and the members of the class actual damages rather than statutory damages; the latter might not require individual proof, but calculation of actual damages would. And even if there were other consumers who like Thorogood were prepared to testify that they wouldn't pay a premium for a dryer that contained a drum that was not 100 percent stainless steel, the amount of damages would vary from consumer to consumer. A few might (though we were and are dubious) have experienced rust stains, or be fearful of experiencing them, and therefore seek as damages either the cost of removing the stains, or the difference between the resale value of their stainless steel dryer and what a new dryer would cost, or both. Others may have bought a Kenmore at a discount and as a result ended up paying no more than they would have paid for a machine with a porcelain drum. And some-since the Kenmore's stainless steel drum is packaged with other premium features rather than offered as a separately priced option-may have...