Litigation

Thorogood v. Sears

By Ted Frank

Attempts to bring a class action against Sears over its washing machines repeatedly failed in the Northern District of Illinois and Seventh Circuit. So the plaintiffs' lawyers tried for another bite at the apple in a California federal court—and then threatened Sears with heavy litigation expenses if they did not agree to settlement. Sears asked for an injunction in the Illinois court to enforce the collateral estoppel, and the Seventh Circuit, in an opinion by Judge Posner, held that the All Writs Act entitled them to one. Posner's opinion is a must-read on the problem of extortionate class action practice. Lots of commentary in the blogosphere: Jackson, Trask, LNL, Drug and Device Law, Mass Tort Litigation. (And congratulations to Brian Anderson and Andrew Trask, whose Class Action Playbook was cited by Judge Posner.) As Professor Burch points out in her post, the pending Smith v. Bayer case in the Supreme Court may have an effect on the ability of federal courts to enforce collateral estoppel in such situations.

The need for Judge Posner's ruling becomes all the more apparent once one sees that the Northern District of California was prepared to permit the duplicate class action go forward.

Full post as published by Point of Law on November 12, 2010 (boomark / email).