This article, the third in our current series on class action imbroglios, rounds out our brief survey of systemic and institutional ills attending consumer fraud, products liability and warranty class action litigation, as reflected in recent case law.1 Weeks ago, Judge Richard A. Posner, writing for a panel of the U.S. Court of Appeals for the Seventh Circuit, dramatically exposed unwholesome class action dynamics in Thorogood v. Sears, Roebuck & Co.,2 a decision issued on Nov. 2. The court further denied a petition for rehearing on Dec. 2, issuing a pungent statement responding to “over the top” accusations by plaintiffs’ counsel. If the name of the Thorogood case sounds familiar it may be because we wrote about a 2008 decision in the very same litigation in our column last month. This new Thorogood decision bristles sharply as it deals afresh with “the specific tactics of class counsel, which include…something close to settlement extortion.”3
In a nutshell, here is what happened in this third appeal arising out of what Judge Posner calls “a near-frivolous class action suit.”4 An attorney named Clinton Krislov filed a class action suit on behalf of Thorogood (we will call him T) and a half million other purchasers scattered across 28 states and 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 thereby stain clothes in the dryer. T claimed the advertising deceived him because the front of the drum was made of ceramic-coated “mild” steel that did not contain chromium.
