In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2407, 11-2133
S TEVEN J. T HOROGOOD , individually and
on behalf of all others similarly situated,
Plaintiff-Appellee/Cross-Appellant,
v.
S EARS, R OEBUCK AND C OMPANY,
Defendant-Appellant/Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 1999—Harry D. Leinenweber, Judge.
A RGUED A PRIL 3, 2012—D ECIDED M AY 1, 2012
Before B AUER, P OSNER, and K ANNE, Circuit Judges.
P OSNER, Circuit Judge. This case is before us for the
fourth time. In the third appeal arising out of a near-
frivolous class action suit by Steven Thorogood, Sears
Roebuck, the defendant, asked us to reverse the
district court’s denial of Sears’ motion to enjoin a
copycat class action suit filed by Martin Murray in
a California state court and removed by Sears to a
2 Nos. 10-2407, 11-2133
federal district court in that state. Not only was it a
copycat suit, but Murray had been a member of
Thorogood’s proposed (and certified, but later decerti-
fied) class, and was represented in his own suit by
counsel who had represented Thorogood in the latter’s
class action suit. Murray v. Sears, Roebuck & Co., No. 4:09-
cv-5744-CW (N.D. Cal.). Judge Leinenweber, who had
presided over Thorogood’s suit and dismissed it, and to
whom Sears submitted its motion for an injunction,
denied the motion, ruling that Sears could obtain ade-
quate relief against being harassed by repetitive litiga-
tion by pleading collateral estoppel in Murray’s suit.
Sears appealed, and, its motion to dismiss Murray’s
class action suit as collaterally estopped by the judgment
in Thorogood’s suit having been rejected by the
California district court, we reversed Judge Leinenweber
and directed him to enjoin Murray’s class action suit.
He did, and Thorogood appealed. That is appeal No. 11-
2133. Meanwhile, Thorogood had petitioned the
Supreme Court for certiorari in the third appeal, No. 10-
2407, in which we had ordered Judge Leinenweber
to enjoin Murray’s suit. So Thorogood was both asking
us to dissolve Judge Leinenweber’s injunction and
asking the Supreme Court to vacate our decision that
had directed him to issue the injunction.
The Supreme Court granted certiorari, vacated our
decision ordering the district court to enjoin Murray’s
class action suit, and remanded the case to us for recon-
sideration in light of Smith v. Bayer Corp., 131 S. Ct. 2368
(2011), rendered after our decision. We have con-
Nos. 10-2407, 11-2133 3
solidated the proceedings on remand with Thorogood’s
appeal from the district court’s injunction, as the two
proceedings raise the common issue of the propriety of
enjoining Murray’s suit as a class action suit—he was
always free to file an individual suit, because the merits
of Thorogood’s complaint about Sears’ representations
concerning its dryer were never determined, as we’ll
see, though we had expressed profound skepticism
about the merits.
Sears’ motion to enjoin had been based on the “All
Writs Act,” which authorizes a federal court to issue
“all writs necessary or appropriate in aid of [its] juris-
diction[] and agreeable to the usages and principles
of law.” 28 U.S.C. § 1651(a). The Act has been inter-
preted to empower a federal court “to issue such com-
mands . . . as may be necessary or appropriate to
effectuate and prevent the frustration of orders it has
previously issued in its exercise of jurisdiction
otherwise obtained.” United States v. New York Telephone
Co., 434 U.S. 159, 172 (1977). This power “extends, under
appropriate circumstances, to persons who, though not
parties to the original action or engaged in wrongdoing,
are in a position to frustrate the implementation of a
court order or the proper administration of justice,
and encompasses even those who have not taken any
affirmative action to hinder justice.” Id. at 174 (cita-
tions omitted). The district court had at our direction
decertified Thorogood’s class, 547 F.3d 742 (7th Cir.
2008), and it later dismissed his suit (an individual suit,
no longer a class action, because of the decertification),
and we had affirmed the dismissal. 595 F.3d 750 (7th
4 Nos. 10-2407, 11-2133
Cir. 2010). Sears argued that by filing the nearly identical
Murray class action, Thorogood’s lawyer had defied our
decertification judgment.
Agreeing, we emphasized the quixotic nature of the
quest on which Clinton Krislov, counsel for Murray
(as formerly for Thorogood) and would-be class
counsel (the California district court has not yet certified
Murray’s suit as a class action), had embarked. Thorogood
had bought a clothes dryer from Sears (Murray too
of course). The words “stainless steel” were imprinted
on the dryer, and point-of-sale advertising explained
that this meant that the drum in which the clothes are
dried was made of stainless steel. Thorogood, a self-
described “highly educated metallurgic engineer,”
claimed to have interpreted this to mean that the drum
was made entirely of stainless steel, whereas part of the
front of the drum—a part the user would see only if
he craned his head inside the drum—was made of a
ceramic-coated “mild” steel, which is not stainless
steel because it doesn’t contain the minimum amount
of chromium required to classify a steel as being stain-
less. Thorogood alleged that the “mild” steel in
the drum had rusted (even though it was coated with
ceramic, which is rust-proof), and stained his clothes.
He said he would not have bought the dryer had he not
thought the drum made entirely of stainless steel and
therefore rust-proof.
We held that his suit could not be maintained as a
class action because there were “no common issues of
law or fact.” 547 F.3d at 747 (emphasis in original). It
was inconceivable that all or even many other members
Nos. 10-2407, 11-2133 5
of the proposed class had the same understanding of
Sears’ advertising as Thorogood claimed to have. Sears
hadn’t advertised the dryers as preventing rust stains
on clothes, doubtless because such stains are not a
common concern of owners of dryers and because
the more common dryer drum, which is made of
ceramic, doesn’t rust either—and remember that the
small bit of “mild” steel in Sears’ drum was coated with
ceramic. The usual advertising claim for stainless steel
drums has nothing to do with rust stains (because
ceramic is rust-proof and staining caused by rust in
dryers is a rare, and maybe a nonexistent, problem) but is
rather that, for example, “Stainless steel drums are more
durable than plastic or porcelain drums and won’t chip,
crack or scratch. They also have the smoothest finish and
handle longer drying cycles better.” Home Depot, “Dryers:
New Models Handle Larger Loads in Less Time,”
www.homedepot.com/webapp/catalog/
servlet/ContentView?pn=Dryers_Electric (visited Apr. 16,
2012). Some of Sears’ ads do point out that stainless
steel doesn’t rust, but no one likes rust, whether or not
the rust rubs off on clothes. And a few consumers
who know that ceramic doesn’t rust may not know
that stainless steel doesn’t rust either, since iron rusts
and steel is made from iron—though steel subject to
rusting could hardly be thought “stainless.”
Consumers whose preference for stainless steel was
unrelated to an anxiety about rust stains (almost certainly
the vast majority) would not be upset to discover that
an inconspicuous portion of the drum had been made of
a different kind of steel that anyway was coated with
6 Nos. 10-2407, 11-2133
ceramic and hence was rust-proof. One would have to
have a neurotic obsession with rust stains (or be a
highly imaginative class action lawyer) to worry about
Sears’ drum. We said that, judging from the record and
the argument of his lawyer, the concerns expressed by
Thorogood were a confabulation. 547 F.3d at 747-48.
But those were peripheral observations. The important
legal point was that there would be no economies
from allowing his suit to be litigated as a class action
because there would be no issues that could be
resolved in a single, class-wide evidentiary hearing.
After we ordered the class decertified Thorogood’s
counsel told the district court that he wanted a
judgment in his client’s individual case, for however
little money. He wanted it not only as a premise for
an award of attorneys’ fees but also so that he could
use it as “offensive” res judicata in other cases (that is,
to preclude Sears’ defending similar cases on the mer-
its); for he was already planning to circumvent our
order decertifying the class by bringing class actions
elsewhere. The California suit sought to be enjoined
was thus foreordained. The judge declined to oblige
him. Sears had made an offer of judgment that covered
the statutory damages that were the only damages
Thorogood was seeking in his individual capacity, and
this mooted the case, which the judge therefore dismissed.
Although normally “ ‘one is not bound by a judgment
in personam in a litigation in which he is not designated
as a party or to which he has not been made a party
by service of process,’ Hansberry v. Lee, 311 U.S. 32, 40
Nos. 10-2407, 11-2133 7
(1940) . . . [,] in a class action . . . a person not named as
a party may be bound by a judgment on the merits of
the action, if she was adequately represented by a
party who actively participated in the litigation. See id.,
at 41 . . . . Representative suits with preclusive effect
on nonparties [thus] include properly conducted class
actions.” Taylor v. Sturgell, 553 U.S. 880, 884, 894 (2008).
And so the district judge in California ruled initially
that Murray was collaterally estopped to bring his suit
as a class action. But after Murray amended his com-
plaint to allege additional facts, in an effort to show that
he had a different case, one more amenable to class
action treatment than Thorogood’s case had been, the
judge reversed her earlier ruling and having thus
rejected the defense of collateral estoppel allowed dis-
covery to begin. Murray then issued bulky discovery
requests to Sears.
We discussed at length in our decision ordering the
district judge presiding over Thorogood’s case to enjoin
Murray’s class action suit the extortionate character of
the Murray suit, and more generally of class counsel
Krislov’s crusade against the Sears stainless steel dryer.
We unsay nothing we said in that opinion, and in our
other opinions in this protracted litigation, in criticism
of the suits and of lawyer Krislov and his cocounsel
(in Murray’s case), Boling; nothing we said about the
susceptibility of class action litigation to abuse; and no
part of our statement that abuse of litigation is a
proper ground for the issuance of an injunction under
the All Writs Act. See Green v. Warden, 699 F.3d 364, 368
(7th Cir. 1983); Miller v. Donald, 541 F.3d 1091, 1096 (11th
8 Nos. 10-2407, 11-2133
Cir. 2008); Molski v. Evergreen Dynasty Corp., 500 F.3d
1047, 1057 (9th Cir. 2007) (per curiam); Newby v. Enron
Corp., 302 F.3d 295, 302-03 (5th Cir. 2002); Tripati v. Beaman,
878 F.2d 351, 352 (10th Cir. 1989) (per curiam). Without
such an injunction a defendant might have to plead
the defense of res judicata or collateral estoppel in a
myriad of jurisdictions in order to ward off a judgment,
and would be helpless against settlement extortion if a
valid defense were mistakenly rejected by a trial
court—a mistake we thought (and think) the district judge
in California had committed.
And so we ordered our district court to enter an in-
junction, and not only against Murray but also against
the other members of Thorogood’s decertified class so
that additional Murrays wouldn’t start popping up,
class action complaint in hand, all over the country.
We acknowledged that an unnamed class member (of
whom there were some 500,000 in Thorogood’s class)
could be bound by the judgment in a class action suit
only if “adequately represented by a party who actively
participated in the litigation.” Taylor v. Sturgell, supra,
553 U.S. at 884. But we noted that Thorogood had par-
ticipated actively in seeking class certification and that
his representation by lawyer Krislov had been ade-
quate—indeed had been energetic and pertinacious to
a fault. And we noted that the injunction would not
preclude any of the class members from filing
individual suits. For we had not ruled on the merits of
any class member’s claim. (Nor had the district judge,
who dismissed Thorogood’s claim on the ground of
mootness, as we noted earlier.) All we had ordered en-
Nos. 10-2407, 11-2133 9
joined was the filing by members of Thorogood’s class,
thus including Murray, and their lawyer Krislov, of class
action suits indistinguishable, so far as lack of com-
monality among class members’ claims was concerned,
from Thorogood’s.
We noted, finally, the grant of certiorari in Smith
v. Bayer Corp., 131 S. Ct. 61 (2010), to decide whether
a district court, without running afoul of the Anti-Injunc-
tion Act, could enjoin a litigant from seeking class certifi-
cation in state court when the district court had
previously denied certification of a similar class
under federal class action rules that differed from
the state rules. We thought the answer might be “no”
but doubted that the Supreme Court would go so
far as to hold that injunctive relief against class action
harassment is impermissible when the class action
suits sought to be enjoined are suits in federal rather
than state courts. But it seems we were wrong. The Su-
preme Court’s decision—rendered after we ordered
the injunction issued and the district court in
compliance with our order issued it—although it does
not refer to the All Writs Act, inclines us to doubt that
Murray, not having been a party to the Thorogood suit,
can nevertheless be bound by a ruling in it, including
the ruling decertifying the class.
Sears’ counsel has made heroic efforts to distinguish
Smith v. Bayer Corp. from the present case, pointing out
for example that the Anti-Injunction Act, 28 U.S.C. § 2283,
limits the power of the federal courts to enjoin state
litigation, see, e.g., Chick Kam Choo v. Exxon Corp., 486 U.S.
10 Nos. 10-2407, 11-2133
140, 146-48 (1988), while the injunction in this case
was issued under the All Writs Act, which authorizes
federal courts to issue injunctions in aid of their judg-
ments—including, according to the Supreme Court’s
New York Telephone opinion, cited earlier, injunctions
against nonparties. But Smith v. Bayer Corp. says that
“neither a proposed class action nor a rejected class
action may bind nonparties. What does have this effect
is a class action approved under Rule 23 [of the Federal
Rules of Civil Procedure].” 131 S. Ct. at 2380. “Still less
does that argument [that an unnamed member of a pro-
posed but uncertified class is a party to the litigation]
make sense once certification is denied. The definition
of the term ‘party’ can on no account be stretched so far
as to cover a person like Smith, whom the plaintiff
in a lawsuit was denied leave to represent.” Id. at 2379
(emphasis in original).
The Court did add that “we cannot say that a
properly conducted class action existed at any time in
the litigation,” id. at 2380, and in this case there was
a time—between the district court’s certifying the class
and our ordering it decertified—during which a class
action “existed,” though not it seems one that was “prop-
erly conducted,” for the class was decertified on appeal.
The meaning of “properly conducted” in this context is
not as clear as it could be, but we think it implies that
Murray never became a party to Thorogood’s suit, and
that being neither a party nor in privity with one,
he could not be bound by the judgment in that suit.
If the district judge had, as we held he should
have, refused to certify the class, there would be no
Nos. 10-2407, 11-2133 11
obstacle to Murray’s filing his own class action—and it
would be odd if by virtue of a mistaken ruling by the
district judge Murray is barred.
Furthermore, we now learn that during the interval
in which a certified class existed in Thorogood’s suit,
the class members, including Murray, were not notified
of its pendency. It is unlikely that he had never heard of
it. But whether or not he had heard of it, he was never
offered an opportunity to opt out of it; such an offer
would have been contained in the notice he would
have received had notice been sent to the class mem-
bers, but it wasn’t sent. Had he opted out he could
not have been bound by our judgments, including
our ruling decertifying the class, which is the ruling
that the injunction that we ordered seeks to enforce
against him. Denied the opportunity to opt out, he was
not bound by our ruling and is therefore free to
file his own class action against Sears. Phillips Petroleum
Co. v. Shutts, 472 U.S. 797, 812 (1985).
The Supreme Court noted in Smith v. Bayer Corp. that
“Bayer’s strongest argument [for enjoining the Murray-
type class action in that case] comes not from estab-
lished principles of preclusion, but instead from policy
concerns relating to use of the class action device.” 131
S. Ct. at 2381. Indeed it’s a strong argument because
the policy concerns are acute, as explained at length
and with many references in our previous opinions in
this and other cases. But the Court rejected “this form
of argument” (policy) as a justification for enjoining
class action suits by class members who had never
12 Nos. 10-2407, 11-2133
become parties because it “flies in the face of the rule
against nonparty preclusion.” Id. The Court, which not
infrequently bases decision on policy concerns, for they
are legitimate tools for making rules of law, could
have changed the rule of nonparty preclusion but
decided to stick with it, and instead listed alternatives
to preclusion: stare decisis, comity, consolidation of
overlapping suits by the Panel on Multidistrict Litiga-
tion (not—yet—available in the dryer saga, because
Murray’s is the only pending suit, as far as we know,
and available when filed in a state court only if the
suit is removed to federal court, as Murray’s suit was),
changes to the Federal Rules of Civil Procedure, and
federal legislation. Sears will have to tread one or more
of these paths if it wants relief from this copycat
class action and perhaps more such actions to come;
we can’t save it.
The district court is ordered to vacate the injunction.
5-1-12