We’ll have more about it later, but anybody seeking to defend repetitive class action litigation should look at Judge Posner’s latest, Thorogood v. Sears Roebuck & Co., No. 10-2407, slip op. (7th Cir. Nov. 2, 2010), filed yesterday. The plaintiff filed a meritless – ordered decertified by a prior Seventh Circuit opinion – consumer class action involving “stainless steel” washing machine parts. After losing, his counsel skulked off to California and filed an identical claim. After unsuccessfully seeking relief in the California District Court, the defendant came back to the Seventh Circuit and argued the suit was barred by collateral estoppel.
Notwithstanding the California ruling, the Seventh Circuit, per Judge Posner held that the determination that individualized issues predominated was collateral estoppel and prevented other plaintiffs (represented by the same lawyer) from bringing essentially the same class action claims in other jurisdictions – even though the California only class was smaller in size than the prior nationwide class ordered decertified. Slip op. at 20. The court issued an injunction against plaintiffs pursuing the same class claims elsewhere:
[P]recluded is the filing (by members of [plaintiffs’ original] class, which includes the members of [the California] class, or by the lawyers for those classes) of class action suits that are indistinguishable, so far as lack of commonality among class members’ claims is concerned, from [the original plaintiff’s].
Id. at 23. With a few additional Anti-Injunction Act limitations, this injunction applies to state court filings as well. Id. at 23-25.
There’s plenty of good stuff in here for defense class action counsel – about collusive litigation, legal extortion, asymmetrical discovery, and the like. The facts were good for the defense, in that the plaintiffs’ lawyers were particularly blatant about their effort to render the prior Seventh Circuit decision nugatory. We’ll cover these matters later, but thought our readers would like to know right away.