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Appellate Practice

7th Circuit Says Plaintiffs Lawyer ‘May Wish to Moderate His Fury’

Posted Dec 6, 2010 9:15 AM CDT
By Debra Cassens Weiss

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A Chicago plaintiffs lawyer who compared a federal appeals panel to Simon Cowell of American Idol fame “may wish to moderate his fury,” according to an opinion denying the lawyer’s petition for a rehearing.

The lawyer, Clinton Krislov of Krislov & Associates in Chicago, objects to a ruling by the 7th U.S. Circuit Court of Appeals that ordered a broad injunction barring his class action litigation against Sears Roebuck, the National Law Journal reports. In a petition for rehearing, Krislov expressed his objections “in tones of outrage” that were “over the top,” according to a Dec. 2 opinion (PDF posted by the National Law Journal) by the Chicago-based appeals court.

Krislov contends Sears engaged in deceptive advertising by touting its stainless steel clothes dryers without revealing that some parts could rust and stain clothes. According to the opinion denying rehearing, Krislov’s strategy is to bring similar suits against Sears in different jurisdictions until he wins. Then he uses the judgment as res judicata or collateral estoppel in the next suit “and the next, and the next, until Sears gives up.” The opinion acknowledges a circuit split on the collateral estoppel issue and a pending Supreme Court case on the question.

In court documents seeking a rehearing, Krislov criticized the panel’s “exceedingly facile approach” and labeled the opinion requiring an injunction “clearly prejudiced.”

“The panel’s opinion reads more like a posting in its author’s well known blog (www.becker-posner-blog.com),” Krislov wrote, “declaring its view of class actions, mischaracterizing class counsel as being inherently corrupted by the inducement to sell out its clients’ small claims for its own fees obtained through a collusive settlement.”

Krislov also alleged the opinion’s characterization of his motivations appears to violate judicial conduct rules. “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.

The panel notes Krislov’s assertion that he is entitled to respect. “Well, he doesn’t treat us with much respect,” the appeals court responded. "He ignores the right and indeed the duty of judges to criticize lawyers who try the patience of other members of the bar, and the courts." He also "overstates the case" since the prior opinion generally criticized class actions and incentives to settle, the court said.

Prior coverage:

ABAJournal.com: “Posner Targets Lawyer’s Remark about Wives and Clothes Dryers (Take Our Poll)”

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