The "Stainless Steel Dryer That Wasn't" Saga Continues

On Monday, the Supreme Court granted certiorari in Thorogood v. Sears, Roebuck, vacated the judgment, and remanded for reconsideration in light of Smith v. Bayer.  The remand will be Mr. Thorogood's fourth appearance before the Court. In October, 2008, the Court reversed a class certification order (opinion and intheiropinion). In February of last year, it affirmed the dismissal of the case as moot (opinion and intheiropinion). In November of last year, it reversed and remanded to the district court for the entry of an order barring the continued prosecution of a mirror class action in a California court (opinion and intheiropinion). Two weeks ago, the Supreme Court decided Smith. In Smith, a federal court denied a class certification motion and later enjoined a state court proceeding by a different plaintiff seeking class certification in a case with similar allegations. The Supreme Court reversed, holding that the case did not fit within the relitigation exception to the Anti-Injunction Act.

The cases are distinguishable. For example, both Thorogood cases are in federal court and would apply the same Rule 23 analysis - not so in Smith. And the Thorogood panel was familiar with the issues raised in Smith and did not think it necessary to await the Supreme Court's ruling.

I anxiously await the next chapter of this compelling saga.