The Seventh Circuit Court of Appeals has issued a sharp rebuke to the attorney who sought rehearing of a panel ruling that ordered a district court to enjoin copycat litigation under the All Writs Act in a case involving allegations that Sears, Roebuck & Co. misled consumers by claiming that a certain model clothes dryer had a stainless steel drum. Thorogood v. Sears, Roebuck & Co., No. 10-2407 (7th Cir., decided December 2, 2010). Additional information about the panel ruling appears in the November 11, 2010, issue of this Report. Denying the petition for panel rehearing and rehearing en banc, the court addressed the attorney’s “over the top” accusations and suggested that he “may wish to moderate his fury.”

According to the court, counsel did not discuss any of the panel ruling’s legal merits, instead focusing on “language in our opinion that he regards as ad hominem” and his contention that “the opinion unjustifiably portrays the case as meritless, lawyer-driven litigation.” Counsel apparently argued that the opinion “must be corrected because it runs afoul of the Code of Conduct for United States Judges” and claimed that the court’s “clearly prejudiced 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 collusive settlement.” The attorney also apparently alleged that “the Panel’s role as the self-assured Simon Cowell of the Circuits demeans not just us, but the Court as well.” The court explains that Cowell was “the cantankerous judge on ‘American Idol.’”

In response, the court reiterates the soundness of its legal ruling and cites numerous authorities that have explained how class actions can have a coercive effect on defendants to settle and can lead to lawyers’ “sweetheart deals” that sacrifice the interests of class members. The court concludes, “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.”