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Eubank v. Pella Corp.

United States Court of Appeals, Seventh Circuit

June 2, 2014

KENT EUBANK, et al., Plaintiffs-Appellants,
v.
PELLA CORPORATION and PELLA WINDOWS AND DOORS, INC., Defendants-Appellees. and LEONARD E. SALTZMAN, et al., Plaintiffs-Appellees, APPEALS OF: RON PICKERING and MICHAEL J. SCHULZ, Objecting class members

Argued April 22, 2014.

Counsel Amended June 16, 2014.

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 4481 -- James B. Zagel, Judge.

For KENT EUBANK, THOMAS RIVA, WILLIAM EHORN, NANCY EHORN, Plaintiffs - Appellants (13-2091): David M. Oppenheim, Attorney, ANDERSON & WANCA, Rolling Meadows, IL.

For LEONARD SALTZMAN, individually and on behalf of all others similarly situated, Plaintiff - Appellee (13-2091): Jeffrey A. Leon, Attorney, COMPLEX LITIGATION GROUP LLC, Highland Park, IL.

For PELLA CORPORATION, an Iowa corporation, PELLA WINDOWS AND DOORS, INCORPORATED, a Delaware corporation, Defendants - Appellees (13-2091): Aaron D. Van Oort, Attorney, FAEGRE BAKER DANIELS LLP, Minneapolis, MN.

For THOMAS RIVA, NANCY EHORN, WILLIAM EHORN, KENT EUBANK, Plaintiffs - Appellees (13-2133): David M. Oppenheim, Attorney, ANDERSON & WANCA, Rolling Meadows, IL.

For LEONARD SALTZMAN, individually and on behalf of all others similarly situated, Plaintiff - Appellee (13-2133): Jeffrey A. Leon, Attorney, COMPLEX LITIGATION GROUP LLC, Highland Park, IL.

For MICHAEL J. SCHULZ, objecting class member, Appellant (13-2133): Theodore H. Frank, Attorney, Washington, DC; Peter F. Higgins, Attorney, LIPKIN & HIGGINS, Chicago, IL.

For PELLA CORPORATION, an Iowa corporation, PELLA WINDOWS AND DOORS, INCORPORATED, a Delaware corporation, Defendants - Appellees (13-2133): Aaron D. Van Oort, Attorney, FAEGRE BAKER DANIELS LLP, Minneapolis, MN.

For THOMAS RIVA, NANCY EHORN, WILLIAM EHORN, Plaintiffs - Appellees (13-2136): David M. Oppenheim, Attorney, ANDERSON & WANCA, Rolling Meadows, IL.

For LEONARD SALTZMAN, individually and on behalf of all others similarly situated, Plaintiff - Appellee (13-2136): Jeffrey A. Leon, Attorney, COMPLEX LITIGATION GROUP LLC, Highland Park, IL.

For LYLE SCHULTE, Plaintiff - Appellee (13-2136): Hall Adams, III, Attorney, LAW OFFICES OF HALL ADAMS LLC, Chicago, IL.

For DAVE THOMAS, Appellant (13-2136): Joseph Darrell Palmer, Attorney, LAW OFFICE OF DARRELL PALMER, Carlsbad, CA.

For PELLA CORPORATION, an Iowa corporation, PELLA WINDOWS AND DOORS, INCORPORATED, a Delaware corporation, Defendants - Appellees (13-2136): John Allen Roberts, Attorney, EDWARDS WILDMAN PALMER LLP, Chicago, IL.

For RON PICKERING, Plaintiff - Appellant (13-2162): John Jacob Pentz, III, Attorney, Sudbury, MA.

For LEONARD SALTZMAN, individually and on behalf of all others similarly situated, Plaintiff - Appellee (13-2162): Jeffrey A. Leon, Attorney, COMPLEX LITIGATION GROUP LLC, Highland Park, IL.

For PELLA CORPORATION, an Iowa corporation, PELLA WINDOWS AND DOORS, INCORPORATED, a Delaware corporation, Defendants - Appellees (13-2162): Aaron D. Van Oort, Attorney, FAEGRE BAKER DANIELS LLP, Minneapolis, MN.

For THOMAS RIVA, NANCY EHORN, WILLIAM EHORN, KENT EUBANK, Plaintiffs - Appellees (13-2202): David M. Oppenheim, Attorney, ANDERSON & WANCA, Rolling Meadows, IL.

For LEONARD SALTZMAN, individually and on behalf of all others similarly situated, Plaintiff - Appellee (13-2202): Jeffrey A. Leon, Attorney, COMPLEX LITIGATION GROUP LLC, Highland Park, IL.

For MICHAEL J. SCHULZ, objecting class member, Appellant (13-2202): Theodore H. Frank, Attorney, Washington, DC; Peter F. Higgins, Attorney, LIPKIN & HIGGINS, Chicago, IL.

For PELLA CORPORATION, an Iowa corporation, PELLA WINDOWS AND DOORS, INCORPORATED, a Delaware corporation, Defendants - Appellees (13-2202): Aaron D. Van Oort, Attorney, FAEGRE BAKER DANIELS LLP, Minneapolis, MN.

Before POSNER, WILLIAMS, and TINDER, Circuit Judges.

OPINION

Page 719

Posner, Circuit Judge .

The class action is an ingenious procedural innovation that enables persons who have suffered a wrongful injury, but are too numerous for joinder of their claims alleging the same wrong committed by the same defendant or defendants to be feasible, to obtain relief as a group, a class as it is called. The device is especially important when each claim is too small to justify the expense of a separate suit, so that without a class action there would be no relief, however meritorious the claims. Normally only a few of the claimants are named as plaintiffs (sometimes only one, though there are several in this case). The named plaintiffs are the representatives of the class--fiduciaries of its members--and therefore charged with monitoring the lawyers who prosecute the case on behalf of the class (class counsel). They receive modest compensation, in addition to their damages as class members, for their normally quite limited services--often little more than sitting for a deposition--as class representatives. Invariably they are selected by class counsel, who as a practical matter control the litigation by the class. The selection of the class representatives by class counsel inevitably dilutes their fiduciary commitment.

The class action is a worthwhile supplement to conventional litigation procedure, David L. Shapiro, " Class Actions: The Class As Party and Client," 73 Notre Dame L. Rev . 913, 923-24 (1998); Arthur R. Miller, " Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the 'Class Action Problem'," 92 Harv. L. Rev . 664, 666-68 (1979), but it is controversial and embattled, see Robert H. Klonoff, " The Decline of Class Actions," 90 Wash. U. L. Rev . 729, 731-33 (2013), in part because it is frequently abused. Martin H. Redish, Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit 1-2 (2009); Jonathan R. Macey & Geoffrey P. Miller, " The Plaintiffs' Attorney's Role in Class Action and Derivative Litigation: Economic Analysis and Recommendations for Reform," 58 U. Chi. L. Rev . 1, 3-4 (1991); John C. Coffee, Jr., " Rethinking the Class Action: A Policy Primer on Reform," 62 Ind. L.J . 625, 627 (1987). The control of the class over its lawyers usually is attenuated, often to the point of nonexistence. Except for the named plaintiffs, the members of the class are more like beneficiaries than like parties; for although they are authorized to appeal from an adverse judgment, Smith v. Bayer Corp., 131 S.Ct. 2368, 2379, 180 L.Ed.2d 341 (2011); Devlin v. Scardelletti, 536 U.S. 1, 9-10, 122 S.Ct. 2005, ...


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