U.S. Court of Appeals for the Seventh Circuit
Civil Procedure — class actions
Where the defendant presented no evidence that a class action alleging it sent junk faxes would effectively compel it to settle despite a defense on the merits, the petition to appeal class certification is denied.
“If the expected damages are so great in relation to the defendants’ assets that if the class certification order stands, the defendants may well be forced—even if they have a strong case on the merits—to settle, in order to avoid the risk of a catastrophic judgment, we would give careful consideration to the request for leave to appeal the order. Kohen v. Pacific Investment Management Co., 571 F.3d 672, 677–78 (7th Cir. 2009); Blair v. Equifax Check Services, Inc., 181 F.3d 832, 834–35 (7th Cir. 1999). But the defendants haven’t told us what their assets are—just that the corporate defendant is ‘a small family owned business.’ It is no doubt small in relation to such family-owned businesses as Koch Industries and Walmart, but maybe not so small that a contingent liability of $15 million would force it to settle; it hasn’t settled yet, and this suit will be celebrating its fifth birthday later this year.”
Petition for Leave to Appeal from the United States District Court for the Northern District of Illinois, Tharp, J., Posner, J.