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...