Tillery stands to collect $17 million settlement fee from Sears via Byron

Steve Korris Nov. 20, 2007, 10:41pm

In a few weeks attorney Stephen Tillery of St. Louis will win a $17 million class action settlement fee from Madison County Circuit Judge Nicholas Byron.

Byron has set a Jan. 18 hearing to approve a settlement between Tillery and retailer Sears Roebuck, in a suit about gas or electric ranges that might tip over.

Tillery substituted three judges off the case so Byron could hear it.

Illinois law allows each party only one free substitution of a judge, but Tillery dodged the rule by substituting once for each of his plaintiffs.

Former Chief Judge Edward Ferguson allowed this practice, but as soon as Chief Judge Ann Callis replaced Ferguson she adopted a rule forbidding it.

Tillery has set up a constitutional challenge to Callis's single substitution rule in a separate case pending before Circuit Judge Daniel Stack.

In the case of the tipping ranges, Tillery sued in 2004 on behalf of Darrell Nash, Charles Parker and Joyce Sumpter.

They claimed Sears should have installed brackets on free standing or slide-in ranges.

Tillery wrote that if anyone opened an oven door and put too much weight on it, or pulled out a lower shelf and put too much weight on it, the range would tip forward.

Ferguson assigned the case to Circuit Judge Andy Matoesian.

Tillery moved for substitution. Matoesian allowed it, and Ferguson assigned Circuit Judge George Moran.

Sears exercised its right of single substitution, and Moran departed. Ferguson assigned Circuit Judge Philip Kardis.

In 2005 Sears moved to dismiss, and Kardis denied the motion.

Nash dropped out, voluntarily dismissing his claims.

Kardis retired, and his cases passed to Circuit Judge Don Weber.

Tillery moved to substitute Weber on behalf of one of the remaining plaintiffs.

Weber allowed it, and Ferguson assigned Stack.

In February 2006, Tillery moved to substitute Stack on behalf of the other plaintiff.

Stack allowed it, and Tillery at last got his wish. Ferguson assigned Byron.

Tillery and Byron share reputations as class action titans.

Byron once identified himself at a hearing as captain of the ship of consumerism.

In 2003 Byron awarded Tillery $1.8 billion in a class action judgment against cigarette maker Philip Morris, though the Illinois Supreme Court later reversed the judgment.

For the last few months of 2006, Tillery's team and Sears attorneys tried to mediate through retired judge Donald O'Connell, without success.

Byron held a hearing on class certification this February and took it under advisement.

For Sears, Jason Rankin of Edwardsville followed through two weeks later with a 19-page memorandum and 446 pages of attachments opposing class certification.

He wrote that plaintiffs failed to allege deception and individual issues predominated over class issues.

Two days later, in mediation, O'Connell proposed a settlement and both sides agreed to think it over.

Byron rendered no decision on class certification, and for months the suit sat still.

On Sept. 18, Tillery and Sears attorney Larry Hepler of Edwardsville broke the silence to announce a settlement.

They agreed to certify a settlement class of range buyers in 50 states, the District of Columbia and Puerto Rico, back to July 2, 2000.

In a joint motion for preliminary approval they wrote, "…the gist of the settlement is that a class member can request installation of an anti-tip device on his or her range from Sears free of charge…"

Alternatively, they agreed, a class member can request a $50 gift card on a Sears range.

A class member who has paid for anti-tip installation can receive reimbursement up to $100, they agreed.

Sears agreed to install anti-tip devices as part of normal delivery for three years.

The class excluded anyone who filed a personal injury suit over a tipping range, anyone who moved since buying a range, and anyone who might opt out of the settlement.

The attorneys agreed, "The class will also exclude those customers for whom installation of a range stability device is not reasonably feasible due to the physical condition of the class member's range or home…"

"…[C]lass members must acknowledge that a certain amount of damage to building materials (i.e. – screw holes, etc.) is a necessary byproduct of installation…," they wrote.

They even agreed that the settlement would not obligate Sears to install a device if the repair person showed up at the appointed time to find the stove hot.

They wrote that at a hearing on final approval, class counsel would petition for attorney fees and costs not to exceed $17 million.

Byron granted preliminary approval and set a fairness hearing Jan. 15.

Settlement administrator Rust Consulting of Minneapolis mailed notices to the class.

The notices stated that range buyers who submitted claim forms might be included in the settlement, while those who did nothing would be included in the class but would receive no benefits.

The notices advised range buyers that they could ask to be left out of the settlement.

The notices stated, "If you remain part of the class and you don't like the proposed settlement, or any part of it, you can write to the court to explain why."

When a notice reached Donald Moon of Mesa, Ariz., he chose the last option and mailed an objection to the clerk of the court.

"The action has wasted my precious time and energy for what?," Moon wrote. "A visit by a Sears representative to correct the supposed problem?

"I don't have a problem with my installation, but I do have a problem with the time and postage wasted…

"No one but the lawyers involved receive any real compensation. Millions?"

"Furthermore taxpayer monies are spent on the court action involved. Our judiciary should concentrate on more important issues.

"This action does more harm than good by raising consumer prices to cover the cost of any such class suits as this."

At the end he wrote, "I do not wish to address the court."

More News