Hylla hears arguments to stay or dismiss Sears washing machine class action

Amelia Flood Sep. 26, 2010, 1:13pm


Attorneys from both sides of a proposed Madison County class action over a malfunctioning washing machine haggled over the case's similarity to a pending federal case in California on Friday.

Sears Roebuck & Co. attorney Michael Williams argued that the younger Illinois suit led by lead plaintiff Therese Dalla Riva was a "second bite at the apple," for her team of attorneys.

Meanwhile Lori Andrus, who's team filed both the California case and Dalla Riva's, told Madison County Circuit Judge David Hylla that there were enough differences between the two to warrant Dalla Riva's suit continuing.

Sears had moved to stay or dismiss Dalla Riva's suit pending the outcome of a potential nationwide class action filed last year by lead plaintiff Renee Tietsworth in the U.S. Northern District of California.

After hearing arguments Friday morning, Hylla told both parties to prepare proposed orders and that he was taking the matter under advisement.

Dalla Riva claims that her Kenmore Elite Oasis automatic washing machines had defective electronic control boards that cause the machines to malfunction.

The suit includes warranty, consumer fraud and safety claims, including those that the washer potentially explodes.

Dalla Riva claims the company deliberately concealed the defects from her and a class of Illinois washing machine purchasers.

Williams told Hylla Friday that the Dalla Riva suit and Tietsworth suit alleged virtually the same claims and that an Illinois sub-class could easily be added to the California federal case helmed by U.S. District Judge Jeremy Fogel.

Williams pointed to discovery in the federal case where Sears has turned over all of its databases including those dealing with Illinois.

The defense attorney pointed out several times Andrus' involvement in the two cases, calling the two suits harassment and were just another attempt by Andrus and her team to sustain claims that Fogel had thrown out of the California suit.

He told Hylla that the Illinois class could seek remedy in the federal case and what ever claims were not addressed by it could be taken up in Illinois courts after the end of the Tietsworth case.

"There is no indication there that the judge is unfair and that he can't apply Illinois law to Illinois claims," Williams said of Fogel. "You've got some lawyers calling the shots and they didn't get what they wanted there so they've come here because they want a second shot here."

Hylla questioned Williams about the differences between the suit, particularly the "exploding washing machine" claims.

"We think the safety issue is really a red herring," Williams replied. "All we have are regurgitated reports from the Internet."

Andrus, in her argument, dismissed the similarities in the two cases, instead focusing on the distinct Illinois claims, including the fear of the possible washer explosion.

Andrus told Hylla the explosions were not rumors and that one washer that did blow up was sitting in storage in Nebraska.

Andrus said that although its owner had dropped out of the Tietsworth case, that evidence coupled with the uniqueness of the Illinois claims should allow Dalla Riva's suit to go forward.

"These are not made up claims," Andrus said.

Andrus told Hylla that the Illinois court could deprive Illinois residents of their recovery because Fogel would not be bound to honor the Illinois claims in his court and Sears would potentially fight their inclusion.

Hylla questioned Williams on that point.

"It does seem to me that these nationwide defendants are always in here arguing against a nationwide class," Hylla said.

Williams told Hylla that Fogel, as a federal judge, could certify a nationwide class, two state classes or take a different direction to work out the claims of the various states' residents.

Mark Goldenberg, Andrus' co-counsel, told Hylla his client preferred to stay in Illinois, all similarities and discovery overlap aside.

"We don't want to go try an Illinois case . . . in California," Goldenberg said.

Therese Dalla Riva's husband, Dr. James Dalla Riva, won a medical malpractice case tried before Madison County Circuit Judge Andreas Matoesian earlier this year.

Andrus is from the San Francisco firm of Andrus Anderson LLP.

Williams is from the Denver firm of Wheeler Trigg O'Donnell LLP.

Stephen Strauss of Bryan Cave LLP of St. Louis also represents Sears.

The Dalla Riva suit is Madison case number 10-L-203.

The Tietsworth federal case is case number 5:09-cv-00288-JF.

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