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From Products Liability Law Daily, October 8, 2013

Washing machine maker again challenges class certification

By Pamela C. Maloney, J.D.

A retail seller of appliances once again has challenged a decision by the U.S. Court of Appeals for the Seventh Circuit which, on remand from the U.S. Supreme Court, reinstated its earlier decision overruling a district court’s refusal to certify a class of consumers who had purchased brand-name, front-loading washing machines from the retailer and who claimed that an alleged defect in the design of the machine caused mold that emitted bad odors (Sears, Roebuck and Co. v. Butler, Docket No. 13-430, October 7, 2013). In light of its decision in Comcast Corp. v. Behrend, 569 U.S. __, 133 S.Ct. 1426 (2013), the U.S. Supreme Court had vacated and remanded (Sears, Roebuck and Co. v. Butler, Dkt. No. 12-1067, June 3, 2013) the Seventh Circuit’s earlier decision (Butler v. Sears, Roebuck & Co., August 22, 2013, Posner, R.) for reconsideration, but the Seventh Circuit determined that the holding of Comcast had not undermined the reasoning of its initial decision. According to the Seventh Circuit, a class trial on the purportedly common defect issue was the efficient procedure for this case.

Background. The consumers who had sought class status stated that because of the low volume of water and the low temperature used in the retailer’s high-efficiency machines in comparison to the volume and temperature of the water in a traditional top-loading machine, the machines did not clean themselves adequately. The consumers alleged that this resulted in a biofilm (a mass of microbes) that formed in the machine’s drum creating a mold that emitted the bad odors. A federal district court in Illinois had denied class certification, and the consumers appealed. In a second class action involving later-year models of the washing machine, consumers complained of a failure of the machines control units that resulted in the machines stopping erroneously. The district court granted certification of this class. The consumers involved in the mold class action appealed. Concluding that the question of whether the machines were defective in permitting mold to accumulate was common to all purchasers, the Seventh Circuit reversed the denial of class certification in the mold class action. Sears then filed for certiorari, which was granted by the High Court, and the case was sent back for reconsideration.

Upon reconsideration, the Seventh Circuit decided not to wait until the district court further considered the factual record because the question presented on remand from the High Court was one of law, the Seventh Circuit reinstated its grant of class certification to the mold class. According to the Seventh Circuit, Comcast had held that a damages suit cannot be certified as a class action unless the damages sought are the result of the class-wide injury alleged by the suit, and a methodology that identifies damages that are not a result of that injury cannot be used to calculate class damages. However, unlike the purported class in Comcast, there was no possibility that damages attributable to acts of the defendants were not the result of the class-wide injury. The plaintiffs in Comcast did not base all of their claim for damages on the antirust theory of which they had complained, and the district court in the present case did not consider whether to determine damages on a class-wide basis, unlike the district court in Comcast.

Basis for petition. In its petition, Sears argues that the Seventh Circuit’s most recent decision conflicts sharply with Supreme Court precedents, including the Comcast decision, and exacerbates an existing circuit split. In addition, ordering certification based on the supposed “efficiency” of trying one abstract issue—the defect question—in a class proceeding contradicts Rule 23(b)(3)’s predominance requirement and overlooks a previous Supreme Court decision holding that commonality requires common answers. Finally, because the class was filled with unharmed purchasers, its certification deviates from the requirement that class members must have suffered the same injury.

Question presented. The seller presented two issues for consideration: (1) whether the predominance requirement of the applicable federal rule was satisfied by the purported “efficiency” of a class trial on one abstract issue, without considering the host of individual issues that would need to be tried to resolve liability and damages and without determining whether the aggregate of common issues predominates over the aggregate of individual issues; and (2) whether a product liability class may be certified when it was undisputed that most members did not experience the alleged defect or harm.

The case number is: 13-430.

Attorneys: Stephen M. Shapiro (Mayer Brown LLP) and Michael T. Williams (Wheeler Trigg O’Donnell LLP) for Sears, Roebuck and Co.

Companies: Sears, Roebuck and Co.

MainStory: Top Story IndustryNewsStory

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