“Bad to the Bone” – Judge Posner Meets the Destroyers

Thorogood v. Sears, Roebuck and Company, __ F. 3d __, 2010 WL 476653 (7th Cir. Feb. 12, 2010)

As long-time readers of the CAFA Law Blog know, we’re huge music fans. We’re also huge fans of George Thorogood and the Destroyers. And of Seventh Circuit Judge (and fellow blogger) Richard Posner. Some of us even know that an early iteration of the band was known as the “Delaware Destroyers,” and that George was a very talented semi-pro baseball player back in the 70s. And that nobody plays slide on a Gretsch White Falcon like he does. (In fact, we don’t know anyone else who plays slide on a White Falcon.)

I walked 47 miles of barbed wire …

That’s probably about how Steven Thorogood, the plaintiff in our case (OK, so we got a little side-tracked talking about George and the Destroyers – bear with us) felt when this Seventh Circuit decision came down. Actually, it was the second time this case had been up to the circuit court. The first time, Sears appealed the district court’s order certifying a class of purchasers of Sears Kenmore stainless steel washers (which the plaintiff alleged don’t really have stainless steel drums and shouldn’t be called “stainless steel” – hence, false advertising claims). The Seventh Circuit reversed, and ordered the class decertified. After the maneuvering discussed below on remand, Thorogood (Stephen, the plaintiff, not George – yeah, we knew you figured that out by now, but wanted to say it anyway) appealed a second time, primarily on the denial of attorney’s fees. This time, Judge Posner said something along the lines of:

You talk too much, you talk too much.

I can’t believe the things that you say everyday.

If you keep on talking, baby,

You know you’re bound to drive me away.

Well, not quite, but hey, he could have. What he actually said: this case was “a notably weak candidate for class treatment. Apart from the usual negatives, there were no positives …” Whew, that’s cold. That’s the blues, pure and simple. George might have said,

Who do you love?

And the answer was, certainly not the plaintiff’s case. OK, back in the district court the second time around – Thorogood and Sears agreed that the maximum damages he could recover under applicable Tennessee law was $3,000. No big deal. That’s all.

So Sears cleverly makes him a Rule 68 offer of judgment of $20,000, inclusive of attorney’s fees. Now, interestingly, the Tennessee Consumer Protection Act makes attorney’s fee awards discretionary, and the district judge decided to diss this piece of junk case by finding that the plaintiff should receive no attorney’s fees at all. None. Nada. Nothing. And, since the offer of judgment exceeded the amount in controversy, the district judge declared the case moot. Well, the plaintiff’s lawyer was probably pretty upset (understandably so), and might have said something like this:

Well I get up in the morning,

Kick the covers from my bed,

The sunlight in my eyes,

Playing tricks on my head.

I work like a dog

On the job everyday.

Tryin’ to make some money,

So I can go and play.

At least that’s what George says. And so, the second appeal was perfected. As readers of this blog know, we talk a lot about the Class Action Fairness Act, and our readers are probably wondering, “What does all of this have to do with CAFA? Are these guys just using this case as an excuse to play George Thorogood and the Destroyers tunes? (And make references to the Destroyers?)” Well, sort of. But hey, it has something to do with CAFA – we’re getting there.

The plaintiff argued that the district court lost jurisdiction under the Class Action Fairness Act when the Seventh Circuit decertified the class as part of the first appeal, and that the case should have then been remanded not to the district court, but to the state court from which it began. Judge Posner made quick work of that argument, citing Cunningham Charter Corp. v. Learjet, Inc., 210 WL 199627 (7th Cir. Jan. 22, 2010) (which recognized an exception for cases in which the claim that the suit can be maintained as a class action is frivolous. Judge Posner observed that the claim in this case was “not (quite) frivolous” in rejecting that argument. Not quite frivolous? Cold, dude. That’s enough to make the plaintiff say,

I drink alone, yeah.

With nobody else.

I drink alone, yeah.

With nobody else.

You know when I drink alone,

I prefer to be by myself.

And that’s about it for the CAFA part of the case. But the rest is kind of interesting, even if it’s not about CAFA. So, read on.

The plaintiff (really his lawyer, we bet, reading between the lines, since all the money at stake was attorney’s fees) then argued alternatively that the district court erred in not awarding attorney’s fees, despite the fact that the offer of judgment was $17,000 more than the maximum to which the plaintiff was entitled under the Tennessee act. In any event, the plaintiff asked for $246,000 in attorney’s fees, presumably with a straight face. Hey, we’d like a $246,000 fee in a $3,000 case, too.

He argued that $246,00 was really a bargain under the circumstances – even though the requested fees exceeded the value of the relief by a factor of about 82, which beats about any lodestar we’ve seen in awhile. His justification? Because his theory of liability was (get this) “vindicated” by Sears’ offer of judgment. And that vindication will undoubtedly help other dissatisfied “stainless steel” Kenmore purchasers in their future individual cases. If anyone would bring one after this Charlie Fox.

As all real fans know, George brags,

I’ll make a rich woman beg,

I’ll make a good woman steal,

I’ll make an old woman blush,

And make a young girl squeal.

Apparently, both courts thought that Stephen asking for $246,000 in attorney’s fees in a $3,000 case was probably closer to stealing. Maybe the plaintiff’s lawyer should have blushed, rather than begging. We don’t know who squealed, but we can guess.

In any event, the Seventh Circuit court was unimpressed with this “alternate argument” that the plaintiff was “successful” in obtaining relief on his individual claim and thus, justifying an attorney’s fee of more than the $17,000 he got (the difference between the $20,000 offer of judgment and the $3,000 max value of the claim) or that his efforts conferred a benefit on the class worth at least $246,000. Yeah, right. Judge Posner quickly disposed of that argument: “The district judge did not abuse his discretion in accessing the benefit to the class that we resoundingly ordered be decertified at $0.”

After this decision, Thorogood (Steven, not George – yeah, yeah, we know you already know that) and his attorney probably should have taken some more advice from Lonesome George:

Gotta get drunk, man, ‘til I can’t even speak.

Gotta get high, man, listen to me.

One drink ain’t enough, Jack, you’d better make it three.

I wanna get drunk, I’m gonna make it real clear.

I want one bourbon, one scotch and one beer.

That’s one bourbon, one scotch and one beer.

And after the Seventh Circuit threw this one out, the plaintiff – or more likely, his attorney – was probably singing,

Cruisin’ and playing the radio,

With no particular place to go.