United States: Comity And Commonality: A Tale Of Two Identical Class Actions Brought By Forum-Shopping Plaintiffs’ Counsel

In Murray v. Sears, Roebuck and Co., No. C 09-5744, 2014 WL 563264 (N.D. Cal. Feb. 12, 2014), the U.S. District Court for the Northern District of California denied a motion for class certification that was practically identical to a motion brought in the U.S. District Court for the Northern District of Illinois that was initially granted, but subsequently reversed by the Seventh Circuit.  In doing so, the court considered the relative weight and "comity" of identical class actions filed in other states, finding that they were entitled to "respect" but not "preclusive effect."  Nonetheless, the court denied certification on the same grounds, finding a complete lack of commonality among the proposed class' claims.

The Murray decision details, at length, another class action dispute pending in the Northern District of Illinois, Thorogood v. Sears, Roebuck & Co.  In both cases, the plaintiffs (represented by the same counsel) alleged that their clothes dryers were falsely advertised because a portion of the machine was subject to rusting and caused damage to their clothing.  Although the Thorogood suit was brought under the Tennessee consumer protection laws and Murray was brought under California's UCL and CLRA statutes, the asserted claims were practically identical.

In Thorogood, although a class was initially certified, the Seventh Circuit Court of Appeals reversed the decision in 2008.  Thorogood v. Sears, Roebuck & Co., 547 F.3d 742, 747 (7th Cir. 2008).  The Murray action was filed in 2009 (i.e., after the reversal) by the same plaintiffs' lawyers representing Thorogood, who sought to certify a California-only class that was practically identical to the class they tried (but failed) to certify in Thorogood.

The court first addressed the relevance of the Thorogood opinions and the extent to which they controlled the result.  The defendant argued that the decision denying certification in Thorogood controlled because the Northern District of California must show "comity" with the Seventh Circuit (which denied certification on practically identical facts).  The court noted that, while the United States Supreme Court's decision in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011), "requires federal courts to show respect for prior class certification rulings, it does not require that they mechanically adopt those prior rulings whenever they are presented with a motion to certify a class in a copycat lawsuit."  Murray, 2014 WL 563264 at *5.  Even while the court acknowledged the risk of abuse (where a lawyer could keep bringing identical class actions until she/he finds a judge who will certify it), no district court was bound by the certification decisions of another court (particularly if the class was not certified).  Id. at *5.  Thus, the Thorogood decision denying class certification, by itself, was not dispositive of the issues in the case.

Just because Thorogood did not preclude certification, however, does not mean it was not persuasive.  The court noted that the motion in Murray suffered from the same problems as the motion in Thorogood, namely a lack of commonality.  This lack of commonality hinged on the failure to identify any advertisement that was common to the class that addressed the problem of the rusty machine part.  Id.  Even if an advertisement included the phrase "stainless steel drum," each class member "would have to testify to what he understands to be the meaning of [that] label or advertisement...."  Id. at *6.  At best, Murray could only point to conversations he had with salespeople at the store who (allegedly) said the stainless steel drum was less prone to rusting.  This, however, was insufficient to present common questions.  Id. at *7.  Thus, just as in Thorogood, without a class-wide representation, there were no common questions and there was no certifiable class.1

While Murray does not automatically preclude copycat class certification motions from other district courts, the deference the court pays to the Thorogood decisions (combined with its determination that the decision is "strong guidance" and must be paid "respectful attention") provides some measure of hope to defendants facing copycat class actions in multiple districts.  Given the propensity of class action plaintiffs' attorneys to bring these copycat suits, every little bit of support helps.

 Footnote

1 Separate and apart from the commonality questions, the court found that Murray was not "typical" because his case presented defenses unique to him, including the statute of limitations, that would threaten to consume the entire trial on the class claims.  Id. at *8-9.

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