Thorogood v. SEARS, ROEBUCK AND CO., 678 F.3d 546

Thorogood sued Sears over alleged stainless steel drum not entirely stainless; class action certification issue in district court; Thorogood’s class was decertified on appeal; Murray filed a near-copycat California class action removed to federal court; Sears sought injunction under All Writs Act to prevent Murray and others from pursuing serial class actions; Supreme Court later remanded after Smith v. Bayer to reconsider in light of that decision; district court decertified Thorogood’s class and dismissed his individual suit as moot after an offer of judgment; district court in California had previously rejected collateral estoppel against Murray but later allowed discovery; this court previously ordered injunction to prevent further copycat class actions but acknowledged nonparties might not be bound.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Murray may be enjoined under the All Writs Act	Thorogood/Thorogood's counsel argue Murray's suit is a continuation of class action harassment.	Sears contends Murray is bound by our decertification and that injunction is proper to prevent systemic abuse.	Yes, injunction allowed against Murray and others to curb class-action harassment.
Whether nonparties to Thorogood are bound by its judgment	Thorogood argued adequate representation bound unnamed class members.	Sears argued nonparties could be bound by preclusive effects of the judgment.	Nonparties cannot be bound unless properly represented; Murray not bound by Thorogood's judgment.
Impact of Smith v. Bayer on binding nonparties	Smith supports extending preclusion to bind class members in similar actions.	Smith rejects binding nonparties by a rejected class action; policy considerations insufficient to override nonparty rule.	Smith disfavors binding nonparties; requires other avenues for relief.
Proper remedy for copycat class actions after Bayer decision	Remedial tools remain to prevent multiplicitous actions.	Need for alternative mechanisms (stare decisis, MDL, Rule changes).	Sears must pursue other paths; injunction against Murray was not sustainable under Bayer and related principles.

United States v. New York Telephone Co., 434 U.S. 159 (Supreme Court 1977) (All Writs Act power to aid court judgments; extends to nonparties under certain circumstances)
Hansberry v. Lee, 311 U.S. 32 (Supreme Court 1940) (Nonparty bound by class action judgment only if adequately represented)
Taylor v. Sturgell, 553 U.S. 880 (Supreme Court 2008) (Nonparty preclusion through adequate representation; principles of relatedness)
Smith v. Bayer Corp., 131 S. Ct. 2368 (Supreme Court 2011) (Class-action rulings cannot bind nonparties; alternatives to preclusion discussed)
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (Supreme Court 1985) (Due process considerations for class action effects on absent members)