It would seem self-evident that abusing the appellate judges who ruled against you isn’t the best way to obtain rehearing or rehearing en banc.
But it apparently wasn’t so clear to class action attorney Clinton A. Krislov, whose petition was so “over the top,” according to the 7th Circuit panel that denied it, that they issued a lengthy order explaining themselves in the hopes that Krislov would “moderate his fury” in the future.
The Dec. 2 order came in the case of Thorogood v. Sears, Roebuck & Co., No. 10-2407, which has already been before the court twice.
Krislov sought class certification for consumers who purchased stainless steel clothes dryers from Sears. Krislov claims that the dryers were misrepresented as being “stainless steel,” because the dryers’ drums were not entirely made of stainless steel, and therefore, the dryers might leave rust stains on clothes being dried.
The first time the panel heard the case, it held that the class should not be certified. The second time, the court enjoined an identical lawsuit from proceeding in a California district court.
Krislov petitioned for rehearing and rehearing en banc, but none of the judges voted to rehear the case.
Krislov took issue with characterizations in the earlier opinions suggesting that the litigation was brought not to benefit plaintiffs, but to enrich the attorney.
He charged in the petition, “the tone and rampant mischaracterizations of the opinion must be modified even if the conclusion remains, because the opinion unjustifiably portrays the case as meritless, lawyer-driven litigation, an accusation thoroughly belied by the record and the distinguished careers of the lawyers involved….”
Krislov complained about the court’s use of the terms “settlement extortion,” “near-frivolous,” “pugnacious,” “pertinacious to a fault,” and “a nuisance.”
But the court defended its original opinion, asserting, “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.”
The order includes two lengthy paragraphs, consisting entirely of cites to law review articles and case law critical of class actions.
Krislov’s petition also complains that the opinion doesn’t show the proper respect to counsel.
But the court retorted, “Well, he doesn’t treat us with much respect, stating in the petition for rehearing en banc that he filed after our first opinion: ‘the Panel’s opinion reads more like a posting in its author’s well-known blog (www.becker-posner-blog.com), declaring its view of class actions, mischaracterizing class counsel as being inherently corrupted by the inducement to sell out its clients’ small claims for its own fees obtained through a collusive settlement….”
The petition also derides the court as the “self-assured Simon Cowell of the Circuits.” The court responded to this allegation merely by identifying Simon Cowell as “the cantankerous judge on ‘American Idol.'”
Concluding its rejection of the petition, the order states, “Neither the judges on this panel nor other federal judges so far as we are aware have denied that the class action is a worthwhile device, and indeed is indispensable for the litigation of many meritorious claims. But like many other good things it is subject to abuse. It has been abused in the stainless steel clothes dryer litigation.”
David Ziemer can be reached at email@example.com.