by Richard W. Millar, Jr.
Not too long ago, my wife and I bought a new washer and dryer. By the time we got around to it, the old washer sounded like a freight train at perilously high speed and the dryer had two settings: damp and burned. So off we went to stores large and larger. I had three criteria: the washer had to wash, the dryer had to dry and the combined cost could not require taking out a second mortgage. I remember when a washer and dryer were a relatively routine, even humdrum purchase, but those days, alas, are no more. My wife had additional criteria, but to be honest, I don’t remember them. What I do remember is being bewitched, bothered and bedazzled by the selection process. There were those like the ones I remembered. You put soap in the washer, turned it on and it washed. You put wet clothes in the dryer, turned it on and it dried them. Now many of these machines have more lights than a Nevada brothel at Christmas, and I think you can’t turn them on except by email.
Ultimately we were, or more accurately, she, was more successful. We are now the proud owners of a new twosome of laundry appliances. I think they work because I take the laundry basket with dirty clothes downstairs and later bring the basket back upstairs with clean, folded clothes. For all I know, the machines fold the clothes and put them in the basket, but I am afraid to voice this suspicion.
What I didn’t know is that I could be a plaintiff. In a class action no less.
Like many good ideas, class actions have a downside. Some are, in a word, declasse. They provide an opportunity for someone to take a frivolous claim and turn it into a serious one simply by the numbers involved. I have written before of those who were befuddled by finding that Crunchberries were not real berries despite the predicate belief that Captain Crunch was a real person and those who were flim-flammed into buying Froot Loops without knowing that they contained no real fruit (despite the spelling).
Back to washers and dryers, or, more specifically, dryers. One Steven J. Thorogood, a self described “highly educated metallurgic engineer,” from Tennessee was conned by Sears into buying a Kenmore dryer because it was said to have a stainless steel drum. He “says he thought it meant that the drum was made entirely of stainless steel [but] part of the drum, a part the user would see only if he craned his head inside the drum, is made of a ceramic-coated ‘mild steel’ which is not stainless steel because it doesn’t contain chromium; stainless steel is a steel alloy that is at least 11.5 percent chromium.” The so-called “mild steel” allegedly rusted and stained his clothes. (I am not sure that this would create a social liability in Tennessee, but I digress.)
In any event, Mr. Thorogood filed an action in federal district court in Tennessee “on behalf of himself and the other purchasers, scattered across 28 states plus the District of Columbia, of the half million or so Kenmore dryers advertised as containing stainless steel drums.” The district court certified the class and Sears appealed. Seventh Circuit Judge Richard Posner (almost always a treat to read) wrote the opinion throwing out the class.
Referring to the economies of class actions, Judge Posner wrote: “The fixed costs of litigation make it impossible to litigate a $50 claim (our guess—there is no evidence—of what the average claim of a member of the plaintiff’s class in this case might be worth) at a cost that would not exceed the value of the claim by many times.” This estimated evaluation did not, as you would expect, bode well for Mr. Thorogood.
Nor did the fact that the plaintiff wanted to “litigate in a single federal district court half a million claims wrested from the control of the courts of 29 jurisdictions . . . the laws of which govern the claimants’ entitlement to and scope of relief” sit well with the reviewing court. But it was the claim itself that raised judicial eyebrows the most.
After noting that this was a “notably weak candidate for class treatment” where “apart from the usual negatives, there are no positives,” the court honed in on the dryers.
“The plaintiff claims to believe that when a dryer is labeled or advertised as having a stainless steel drum, this implies, without more, that the drum is 100 percent stainless steel because otherwise it might rust and cause rust stains in the clothes dried in the dryer. Do the other 500,000 members of the class believe this? Does anyone believe this besides Mr. Thorogood?”
In response to a challenge by the plaintiff’s lawyer during oral argument, the judges went beyond the usual appellate court resources and talked to their wives. “At argument, the plaintiff’s lawyer, skeptical that men ever operate clothes dryers—oddly, since his client does—asked us to ask our wives whether they are concerned about rust stains in their dryers. None is.”
The court concluded that the “deal breaker” was that there was no reason to believe there was a “single understanding” of the significance of labeling a stainless steel drum.
The case did not end there, however. Using a different but equally deceived plaintiff, a “copycat suit” was brought in California. Two years after the initial Seventh Circuit opinion, the case ended up before the same panel after lower courts had refused to enjoin the new suit. The panel ruled that an injunction was warranted and reversed. The plaintiff filed a petition for an en banc hearing which drew a further order from Judge Posner noting that no judge in regular active service had voted in favor of a rehearing. Because of accusations by the plaintiff’s lawyer which the court characterized as “over the top” Judge Posner wrote that “a further statement beyond merely reporting the denial . . . would be helpful . . .” and that the plaintiff’s lawyer “may wish to moderate his fury.” Noting that the lawyer had complained that the litigants and counsel were entitled to be treated with respect, the court said, “Well he doesn’t treat us with much respect,” listing, among other accusations, the “Panel’s role as the self-assured Simon Cowell of the Circuits . . .” Fortunately at least for me, the court explained that Simon Cowell was the “cantankerous judge on “American Idol.”
Well I think the panel was too harsh on the lawyer.
After all, he was just trying to drum up business.
Mr. Millar is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at email@example.com.