Thorogood v. Sears, Roebuck & Company (7th Cir. 11/2/10) [pdf] involves the attempted litigation of multiple class action lawsuits in different states over the issue of whether the advertising of a stainless steel dryer drum was deceptive. In brief, after a district court dismissed a class action lawsuit brought by Thorogood against Sears in Tennessee, the same lawyers filed a similar claim in California on behalf of a different plaintiff, Murray. The case caught my attention because of judge’s scathing indictment of class action lawsuits (I apologize for the long quote, but it is worth reading):
The class action is a worthwhile device for economizing on the expense of litigation and enabling small claims, illustrated by Thorogood’s claim, capped at $3,000, to be litigated at all (though when the claim is deceptive advertising, a proceeding before the Federal Trade Commission is a more economical alternative to a class action suit). But the device also lends itself to abuse. [C]lass members are interested in relief for the class but the lawyers are primarily interested in their fees, and the class members’ stakes in the litigation are ordinarily (and in the present case or cases) too small to motivate them to supervise the lawyers in an effort to align the lawyers’ incentives with their own…. Defendants, wanting to minimize the sum of the damages they pay the class and the fees they pay the class counsel, are willing to trade small damages for high attorneys’ fees…. These convergent incentives forge a community of interest between class counsel, who control the plaintiff’s side of the case, and the defendants, but may leave the class members out in the cold….
An additional asymmetry, also adverse to defendants, involves the cost of pretrial discovery in class actions. One purpose of discovery—improper and rarely acknowledged but pervasive—is: “it makes one’s opponent spend money.” … In most class action suits, including this one, there is far more evidence that plaintiffs may be able to discover in defendants’ records (including emails, the vast and ever-expanding volume of which has made the cost of discovery soar) than vice versa. For usually the defendants’ conduct is the focus of the litigation and it is in their records, generally much more extensive than the plaintiffs’ (especially when as in a consumer class action the plaintiffs are individuals rather than corporations or other institutions), that the plaintiffs will want to rummage in quest for smoking guns.
The merit of Murray’s case, like Thorogood’s, of which it is a close copy, is slight. But the pressure on Sears to settle on terms advantageous to its opponent will mount up if class counsel’s ambitious program of discovery is allowed to continue. A letter from Mark Boling, Murray’s co-counsel, to Sears’s counsel, printed at the end of this opinion, illustrates the point. The letter reminds Sears that discovery is proceeding and “will involve Plaintiff’s counsel delving into the full extent of Defendants’ alleged wrongdoing” in order to justify not only equitable relief but also punitive damages—which are potentially very large given the size of the class and the possible preclusive use of any judgments favorable to the plaintiffs in suits brought in other states. The letter continues: “as we progress through the various stages of this litigation, the cost of settlement will necessarily increase…. At this point, we may want to consider whether an appropriate olive branch for resolution can be mutually created on a class wide basis commensurate with the status of the case. If interested, please pick up the telephone and call me. In the meantime, Plaintiff will continue to diligently and timely prosecute this case to an appropriate result.” In other words, unless Sears settles now (implicitly for modest relief for the class and an agreement with class counsel to recommend to the judge generous fees for Krislov and Boling), it will incur the considerable cost of responding to class counsel’s distended project of “delving” and assume the risk of a very large adverse judgment. And as Boling’s letter also points out, “if plaintiff is successful on a motion for class certification, the court as the gate keeper will demand a more significant recovery for resolution.”
This scenario is not all that much more different than the standard wage and hour class action.
Like the Sears example, employers in wage and hour class actions bear a disproportionately large share of time and expense in discovery. Employers have most, if not all, of the wage and hour records, many of which are archived and expensive to recover. Discovery of email exponentially adds to the discovery expense. These high costs bear heavily on an employer’s decision whether to settle or litigate a case.
Like Sears, employers feel an inordinate pressure to settle these claims. The exposure in wage and hour lawsuits can be large (sometimes, even “bet the company” like exposure). The risk of high attorneys’ fees award only serves to exacerbate that pressure to settle. It is not a secret that claimants use that exposure to their advantage to leverage early resolutions.
And, like the Federal Trade Commission in a consumer case, there exists a federal agency that can economically litigate a meritorious claim, the Department of Labor.
Now that we all know what dryer drums have in common with wages and hours, we can get back to defending class action lawsuits.
[Hat tip: PointofLaw.com]