Author: Baker Hostetler: Deborah Renner
“Class Action Law Suit Defense”
In Thorogood v. Sears, Roebuck & Co., 2012 WL 1508226 (7th Cir. May 1, 2012), the Seventh Circuit considered the propriety of an All Writs Act injunction in the face of a copy-cat class action for a “near-frivolous” claim. After detailing the abuse of the class action device by the plaintiffs’ lawyers, the Court nevertheless held that consistent with the Supreme Court’s decision in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011), the injunction had to vacated. The Seventh Circuit’s decision is a sobering reminder to companies of the difficulties involved in enjoining copy-cat litigation after defeating class certification in light of Bayer.
In Thorogood, the named plaintiff sued Sears alleging that the clothes dryers he had bought from Sears had stained his clothes with rust because the drum of the dryer was not made entirely of stainless steel, as Thorogood alleged he believed it to be because of the words “stainless steel” imprinted on the dryer. Instead of being made entirely of stainless steel, part of the front of the drum was made of a ceramic-coated “mild steel.” The Court had previously held that the suit could not be maintained as a class action for lack of commonality, as “[i]t was inconceivable that all or even many other members of the proposed class had the same understanding of Sears’ advertising as Thorogood claimed to have.” The Court mused that “[o]ne would have to have a neurotic obsession with rust stains (or be a highly imaginative class action lawyer) to worry about Sears’ drum.”