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Posner Urges Lawyer|to ‘Moderate His Fury’

(CN) - Judge Richard Posner, responding to a lawyer's claim that the 7th Circuit acted "as the self-assured Simon Cowell of the circuits," said the attorney had "chutzpah" and defended the court's decision to toss a "near-frivolous" class action against Sears over its stainless steel dryers.

"Neither the judges on this panel nor other federal judges so far as we are aware have denied that the class action is a worthwhile device and indeed is indispensable for the litigation of many meritorious claims," Posner said, explaining his refusal to rehear the case. "But like many other good things, it is subject to abuse. It has been abused in the stainless steel clothes dryer litigation."

Attorney Clinton A. Krislov represented a Tennessee man in a class action claiming Kenmore stainless steel dryers leave rust stains on clothes because they contain parts made from mild steel coated with ceramic instead of stainless steel.

After Posner and two colleagues in Chicago decertified the class action, Krislov and co-counsel Mark Boling filed a nearly identical class action in federal court in California.

Krislov also demanded $246,000 in attorneys' fees for his Tennessee client, who won just $3,000. Krislov argued that the fees were a worthwhile investment, because Sears had offered his client a $20,000 settlement -- all but $3,000 of which the district court barred his client from collecting, because it exceeded the amount in controversy.

The settlement offer, Krislov claimed, vindicated his theory of liability.

Posner called this argument "beyond weak," saying the victory "could by no stretch of the imagination be thought a vindication of a threadbare, idiosyncratic claim worth at most $3,000."

Krislov fought back on appeal, saying the panel's Nov. 2 opinion "reads more like a posting in its author's well-known blog," referring to, which Posner maintains with University of Chicago economist Gary Becker.

Krislov said the ruling mischaracterized class counsel as having sold out their clients' claims for massive class-action settlement fees, and "substituted the authoring judge's personal economic theories and baseless factual declarations for the developed record."

"[T]he court's clearly prejudiced opinion presents an unsupported, op-ed style portrayal of class action attorneys that ... demonizes all class action attorneys ... and goes well over the top in its characterization of undersigned counsel's actions and motivations," Krislov argued.

He added that the ruling for Sears "appears to run afoul" of the codes of judicial conduct: "Indeed, the panel's role as the self-assured Simon Cowell of the circuits demeans not just us, but the court as well," he wrote. (Cowell is the notoriously hard-to-please judge on "American Idol.")

But Judge Posner refused to back down, saying Krislov "may wish to moderate his fury."

He pointed out that the 7th Circuit's views on the abuse of class-action litigation were backed by numerous legal scholars, sister circuits and Supreme Court rulings.

Posner also blasted Krislov for accusing Sears of forum shopping, when the attorney admitted to doing the same thing.

"This is what is known as chutzpah," Posner wrote, "since Krislov brought his copycat suit in California because, as he says unguardedly, 'the 9th Circuit's standards are decidedly more favorable to plaintiffs' claims.'"

The judge added that he and his colleagues took up Krislov's challenge, raised during oral arguments, to quiz their wives on whether they worry that a stainless steel dryer might cause rust stains on their clothes.

"The wives unanimously answered 'no,'" Posner reported.

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