Thorogood v. Sears, Roebuck and Co.

• Decision Date: 02 December 2010
• Docket Number: No. 10-2407,10-2407
• Citation: 627 F.3d 289
• Parties: Steven J. THOROGOOD, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

627 F.3d 289

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.

Dec. 2, 2010.

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

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

Before RICHARD A. POSNER, Circuit Judge, MICHAEL S. KANNE, Circuit Judge and TERENCE T. EVANS, Circuit Judge.

ORDER

The plaintiff-appellee filed a petition for panel rehearing, and rehearing en banc, on November 16, 2010. All the judges on the panel have voted to deny the petition, and no judge has requested a vote on rehearingthe case en banc. But in 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, beyond merely reporting the denial of the petition, would be helpful to readers of the panel opinion (624 F.3d 842; our earlier opinions in this protracted litigation are reported at 547 F.3d 742 and 595 F.3d 750), readers of the petition for rehearing-and perhaps even Mr. Krislov, whose accusations are over the top, as we shall now explain, and who may wish to moderate his fury.

The petition expresses in tones of outrage (1) disagreement with the merits of our decision, including the scope of the injunction that we ordered the district court to enter; and (2) outrage at the panel's characterization of Krislov's and Boling's litigation tactics. Mark Boling is Krislov's cocounsel in the California copycat class action suit that we ordered enjoined on the authority of the All Writs Act. Krislov is the colorful attorney (and Illinois politician ¹) who in the oral argument of the first appeal in this lawsuit about alleged rust stains in clothes dryers sold by Sears Roebuck 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." This may be an unacknowledged ground on which he is seeking not only panel rehearing but rehearing en banc.)

The petition notes a tension between our injunction (against the California class action), and our similar injunction in In re Bridgestone/Firestone, Inc. Tires Products Liability Litigation, 333 F.3d 763 (7th Cir.2003), on the one hand, and the Supreme Court's decisions in Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008), and Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985), on the other hand. But its failure to acknowledge the grant of certiorari in Smith v. Bayer, --- U.S. ----, 131 S.Ct. 61, 177 L.Ed.2d 1150 (2010) (discussed in our opinion), is telling: the holdings in the cases that Krislov cites do not rise to the level of a "clear directive" from the Supreme Court. Instead a circuit split has developed concerning whether and when class certification orders can serve as the basis for collateral estoppel in other forums. Our opinion notes this tension and the possibility that the merits decision in Smith v. Bayer, when it is issued, may warrant modification of the injunction that we have ordered.

The petition ignores the principal reasons our opinion gave for enjoining thecopycat class action. It says virtually nothing about the All Writs Act, though that was the very ground of our decision, and makes a number of disingenuous statements such as that "rather than seeking interlocutory review in the Ninth Circuit, Sears filed an All Writs Act, 28 U.S.C. § 1651 ('All Writs Act') petition in the closed Thorogood case in the Northern District of Illinois seeking to enjoin the previous unnoticed class members from bringing class claims elsewhere." Sears could not appeal the California court's order because it was not an appealable order.

The petition ignores our point that class certification is improper given the nature of the rust-stains claim, which does not present "common issues of law or fact" that can support a class action. It ignores our point that Murray's suit is indeed a copycat. It ignores our criticisms of the two district court opinions. It says that "the Panel ... ordered the district judge to enjoin class members from pursuing causes as a class action against Sears, anywhere," yet ignores that the opinion is explicit that individual claims are not to be enjoined. Even class actions "against Sears, anywhere" are permitted, provided they are not based on theories rejected in our decision. And it ignores that the pressures on Sears to settle in the face of Krislov's onslaught of litigation amounts to irreparable harm; we explained that "there is no way in which Sears can recoup the expense of responding to Murray's extravagant discovery requests and of filing preclusion defenses against duplicative class actions in other states. The harm it faces from the denial of the injunction is irreparable and its remedy at law against settlement extortion nonexistent."

The petition states, without substantiation, that "this case was brought by a highly educated metallurgic engineer, Steven Thorogood ('Thorogood'), who carefully evaluated his claims against Sears before taking action." Even if this is true, there is no suggestion that Murray, the named plaintiff in the copycat action, has any relevant background that might have helped him to "carefully evaluate his claims against Sears before taking action."

The focus of Krislov's concern is language in our opinion that he regards as ad hominem. He insists that "the tone and rampant mischaracterizations of the opinion must be modified even if the conclusion remains, because the opinion unjustifiably portrays the case as meritless, lawyer-driven litigation, an accusation thoroughly belied by the record and the distinguished careers of the lawyers involved.... [T]he merits of the claims, the suitability of certifying the case as a class action and the refusal to enjoin plaintiff's California-only state class action have been legitimized by two independent federal district courts. Thus, to disparage the merits or professional motivations of the parties or their counsel [i.e., Krislov and Boling] is unjustified and must be corrected because it runs afoul of the Code of Conduct for United States Judges." 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.

Krislov criticizes what he calls "the Panel's choice to personally attack Plaintiff's counsel [himself], in lieu of recognizing the sound discretion of two federal district courts" (emphasis in original).The opinion explains that the district judge in Illinois, whose decision we were reviewing, appeared to have overlooked several relevant considerations: "He seems to have believed that pleading res judicata or collateral estoppel always provides adequate relief against vexatious litigation. This case shows that it does not, as do the similar cases we cited earlier and the cases that say that enjoining vexatious litigation is preferable to the harassment of an expensive, time-consuming procedure to prove [a defendant's] res judicata or estoppel claims in another court." And the district judge in California-whose ruling, to repeat, cannot be appealed, even though, if it stands, it forces Sears to engage in costly discovery, as emphasized by Boling in urging a settlement favorable to the class-was confused about the record, as our opinion explains.

Krislov says that "Sears' resort to this Circuit for the preclusive shot is transparent forum shopping, looking for this Court's derisory view of the claim to influence it into binding all class members nationwide, because the Ninth Circuit's standards are decidedly more favorable to plaintiffs' claims." This is what is known as chutzpah, since Krislov brought his copycat suit in California because, as he says unguardedly, "the Ninth Circuit's standards are decidedly more favorable to plaintiffs claims." Sears was not engaged in forum shopping. Only one forum offered the possibility of relief. Because it could not appeal the interlocutory order of the California judge, the only place to go to seek relief against being sued all over the country on frivolous grounds aimed at securing a settlement was the district court in Illinois.

Krislov says: "If the logic of Rhone-Poulenc [ In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir.1995) ] remains accurate, then Sears had an adequate remedy to seek mandamus in the Ninth Circuit, over the Northern District of California's denial of Defendants' Motion to Strike." This misses the point: the All Writs Act permits courts to issue injunctive relief to protect and effectuate their own judgments, so that winning parties will not be forced to litigate a defense of collateral estoppel (or seek mandamus orders) in every subsequent forum in which they are harassed with the same legal claim until they cry "Uncle!"

He says: "Just as the court is entitled to be treated with the respect [ sic ] by litigants and their counsel, litigants and their counsel are entitled to be treated with respect by the court." Well, he...