For years we've advocated for legal reform to curb tort abuse, but we've never lost sight of the fact that legislative remedies would not be necessary if judges simply acted judiciously.
A good model to follow is Judge Richard Posner of the U.S. Seventh Circuit of Appeals in Chicago. Judge Posner has frequently deplored tort abuse during the course of his career and nipped it in the bud more than once with his decisions.
A case in point is the ruling he and his colleagues handed down last week in a class action suit against Sears.
Steven Thorogood of Tennessee originally sued Sears in Illinois state court, alleging that the retail chain falsely advertised stainless steel drums on its Kenmore clothes dryers. Claiming that the drum on his dryer corroded and stained his clothes, the ironically named Thorogood sought to represent half a million rust-threatened dryer buyers in 28 states.
Sears got the suit removed to federal court in Chicago, where District Judge Harry Leinenweber certified it as a class action. Posner and his fellow Seventh Circuit judges reversed Leinenweber and ordered the case to be decertified. They also instructed that any similar actions against Sears in state or federal courts be enjoined.
Posner and his bench mates denounced the extortion-like tactics of Thorogood's counsel, Clinton Krislov and Mark Boling, offering a textbook deconstruction of tort abuse in their decision.
Skeptical of Thorogood's claims, Posner considered the case a weak candidate for class treatment and anticipated that plaintiff's counsel were "already planning to circumvent our order decertifying the class by bringing class actions elsewhere." Whence the injunction.
"If Krislov and the other class counsel are not enjoined," Posner warned, "they will continue their state by state quest for certification and will doubtless be able to find at least one lead plaintiff in every state."
Thanks to Judge Posner and his colleagues, an unconscionable waste of time, talent, and treasure has been averted. More judges need to say no to wasteful class actions where the biggest payout often is in legal fees awarded.