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The U.S. Circuit Court of Appeals for the 7th Circuit recently chastised Chicago plaintiffs’ lawyer Clinton Krislov by calling his accusations against the court “over the top” and by suggesting he “may wish to moderate his fury.” That admonishment came in an order denying rehearing of a class action about clothes dryers. Judges Richard Posner, Michael Kanne and Terence Evans jointly authored the Dec. 2 order in Thorogood v. Sears, Roebuck and Co. The order denied the plaintiffs’ petition for panel rehearing and rehearing en banc. It followed a Nov. 2 ruling by Posner ordering the lower court to issue a broad injunction against Krislov’s dryer litigation. Posner’s November opinion called Krislov’s case, which was on its third appeal, a “near-frivolous class action.” The lawsuit claimed that Sears falsely claimed that the drums in certain Kenmore dryers were made entirely of stainless steel. The case also claimed that a ceramic-coated steel section of the dryer rusted and stained clothing. Earlier in the case, Posner decertified a 29-state, 500,000-member class on the ground that consumers had individual issues and therefore didn’t form a true class. In their Dec. 2 ruling, the 7th Circuit judges “decided that a further statement beyond merely reporting the denial of the petition would be helpful to readers of the panel opinion.” The panel wrote that Krislov’s petition “expresses in tones of outrage” disagreement with its November injunction against a Northern District of California class action Krislov filed with co-counsel Mark Boling, Murray v. Sears, Roebuck and Co. Krislov was also incensed about how the panel characterized his and Boling’s litigation tactics. The panel noted that there’s a circuit split about “whether and when class certification orders” can serve as the basis for stopping cases in other forums. The panel also said its Nov. 2 opinion acknowledged that the U.S. Supreme Court recently granted certiorari in a case on that issue, Smith v. Bayer. That grant “may warrant modification of the injunction we have ordered.” In addition, the court said that Krislov “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,” according to the panel. The Dec. 2 ruling also sets the record straight about what the court meant by its various characterizations of Krislov in last month’s ruling, including terms such as settlement extortion; near-frivolous; pugnacious; pertinacious to a fault; and a nuisance. “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,” stated the panel ruling. “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.” The panel also shot down Krislov’s claim that Sears engaged in “transparent forum shopping” when it turned to the 7th Circuit for a ruling to stop other class litigation because the 9th Circuit is more favorable for 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,’” stated the panel. “Only one forum offered the possibility of relief,” stated the panel. “Because [Sears] 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.” The panel wrapped up its observations by noting that the class action, like many other good things,”is subject to abuse.” “It has been abused in the stainless steel clothes dryer litigation,” the court said. In a telephone interview about the ruling, Krislov, said “the personalities are a side issue at best.” “We regret the court’s holding that class members can be bound absent an opportunity to be heard or opt out,” Krislov said. “We don’t think that satisfies minimum due process. The Supreme Court will ultimately decide that.” Krislov said he expects the Supreme Court to address his clients’ case directly or indirectly, in the upcoming Smith case. He plans to ask the Supreme Court to address “the core legal issue of the injunction against absent class members.” Sears’ lawyer in the case, Phil Oliss, a Cleveland litigation partner at Squire, Sanders & Dempsey, said “it’s a very colorful opinion with some colorful language,” but ultimately, the story about the case is mundane. “The court did something that was clearly within its authority to do and consistent with 7th Circuit precedent,” Oliss said. “In that sense, there’s nothing spectacular going on here. It doesn’t raise any exciting new issues of law.” Earlier 7th Circuit rulings have thrown cold water on Krislov’s case. In February 2010 Posner attacked Krislov for spending $246,000 on the case. “No sane person incurs fees in that amount to prosecute a claim worth at most $3,000,” Posner wrote at the time. “The plaintiff’s effort to exalt his meager claim into a sprawling nationwide class action was a flop. Sears should not have to bear the entire cost of the flop.” Back in November, Krislov told The Am Law Litigation Daily, a National Law Journal affiliate, that the opinion was “cheap shot sarcasm” because he discussed his costs in response to Sears’ question and never asked for $246,000 in fees. Boling, a Lake Forest, Calif.-based lawyer, could not immediately be reached for comment about the Dec. 2 ruling. Sheri Qualters can be contacted at [email protected].

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