$17 million fee doesn't keep Tillery from revisiting settled Sears case

Steve Korris Jul. 30, 2008, 11:31am



Sears Roebuck paid St. Louis attorney Stephen Tillery and his associates $17 million to release the retailer from a class action claim that it sold stoves it knew would kill people.

Tillery repeated the claim in a local newspaper and Sears didn't deny it.

Last year, Sears settled a Madison County class action that Tillery filed in 2004.

Sears paid Tillery's team $17 million and agreed to install anti-tipping brackets.

Tillery released Sears from all other claims of class members under all laws.

Their agreement provided that neither side would contact news media without notifying the other side, but that didn't keep Tillery away from the Alton Telegraph.

Tillery told Alton Telegraph reporter Sanford Schmidt that Sears stoves tipped over and caused "lots of little children" and some elderly persons to die.

The Telegraph posted video of the interview on its Web site July 29.

Sears spokesperson Kimberly Freely initially said the interview surprised the company, but she said later in an official response that Sears would not comment.

Tillery told the Telegraph there wouldn't be people like him filing class actions if it weren't for the "failure of a system" to regulate consumer products.

"Complaints were made directly to the Consumer Protection Safety Commission (CPSC) by consumer groups, by parents of disabled children who were victims of the problem for 10 years and they did nothing," Tillery said in the interview.

"They didn't come out with a public statement or open an investigation until one month after the lawsuit I filed was settled."

The Consumer Product Safety Commission has not recalled stoves due to tipping hazards.

The commission reported last year that in the preceding 13 years, stoves of all brands tipped and fatally crushed six children and two adults.

Stronger safety standards that the industry adopted in 1991 reduced deaths 57 percent, the report showed.

Tillery told the Telegraph he didn't recall which judge approved the settlement because different judges handled the case.

Actually, seven judges presided over it and two approved the settlement, but none of them really handled the matter except Circuit Judge Nicholas Byron.

When Tillery filed the suit for plaintiff Darrell Nash, Chief Judge Edward Ferguson assigned it to Circuit Judge Andy Matoesian.

Nash moved for substitution.

In Illinois, anyone can substitute a judge once without cause if the judge has not made a substantial ruling.

Matoesian granted substitution, Ferguson assigned the case to Circuit Court Judge George Moran, and Sears substituted him.

Ferguson assigned it to Circuit Court Judge Philip Kardis, who in 2005 heard and denied a motion from Sears to dismiss the suit.

Plaintiff Nash dismissed his claims and Tillery proposed to certify Charles Parker, Annemarie Parker, David Sumpter and Joyce Sumpter as class representatives.

Kardis retired, and most of his cases passed to Circuit Court Judge Don Weber without specific reassignments from Ferguson.

In this case, Byron tried to prevent assignment to Weber.

Byron signed an order on Sept. 22, 2005, assigning the case to Circuit Court Judge Daniel Stack without explaining how he had obtained Ferguson's authority.

The order remains on file, but no one carried it out and the case passed to Weber with the rest of Kardis' load.

Plaintiff Charles Parker moved to substitute Weber, and Weber granted the motion.

This time the case really did shift to Stack, by order of Ferguson, but Stack didn't last because plaintiff Joyce Sumpter substituted him.

In 2006, Ferguson assigned the case to Circuit Court Judge Nicholas Byron.

Tillery and Sears took the case to mediation with retired Cook County Judge Donald O'Connell, and mediation led to agreement.

Last September, Byron granted preliminary approval and set a final fairness hearing for this Jan. 15.

On Nov. 26, five days after the Madison County Record reported that the settlement would go to Byron for final approval, Byron dropped the case.

"The undersigned Judge, hereby, recuses himself in this matter as he will be unavailable to hear any further matters," Byron wrote.

The recusal sounded peculiar then and it sounds more peculiar now, for Byron remains not only available but busy.

Chief Judge Ann Callis assigned the case to Circuit Court Judge Barbara Crowder.

Suspense began building, for the settlement featured an unusual provision that would cancel the agreement if 5,000 class members excluded themselves.

In most class actions only a handful of class members follow the legal procedure to "opt out," but in this case exclusions rolled in by the thousands.

Never has a class stopped a class action, but this class came close. Madison County Circuit Court received 4,896 exclusions.

Crowder granted final approval on the date Byron had set.
In the course of the suit three Tillery clients substituted three judges without cause, but he can no longer shop around so easily.

When Callis replaced Ferguson as chief judge in 2006, she adopted a local rule banning multiple substitutions from multiple plaintiffs in a single case.

Tillery asked the Fifth District appellate court to revoke the rule, but the Fifth District let the rule stand.

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