Last week, the Seventh Circuit handed down its new, post-Comcast opinion in Butler v. Sears Roebuck and Co., ___ F.3d ___ (7th Cir. Aug. 22, 2013).
This is one of the three cases in which the U.S. Supreme Court issued a "grant, vacate and transfer" (or "GVR") order post-Comcast. As it did in its original opinion, the Seventh Circuit (in an opinion by Judge Posner) reversed the district court's order denying class certification of claims for breach of warranty arising out of alleged defects in the defendant's front-load washers.
A lot of language from the original opinion was retained and appears in the new one. The discussion of Comcast appears at pp. 5-8. Here are a few sound bites:
- "Sears is wrong to think that anything a dissenting opinion approves of the majority must disapprove of." Slip op. at 7 (emphasis in original). (This brings to mind Justice Werdegar's concurrence in Brinker; some litigants have argued that the rest of the justices must have disagreed with everything she said, or they would have joined it. It is equally possible that they considered the matters unnecessary to the opinion.)
- "As we explained in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 491-92 (7th Cir.2012), distinguishing Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), a class action limited to determining liability on a class-wide basis, with separate hearings to determine—if liability is established—the damages of individual class members, or homogeneous groups of class members, is permitted by Rule 23(c)(4) and will often be the sensible way to proceed. " Slip op. at 7.
- "Sears thinks that predominance is determined simply by counting noses: that is, determining whether there are more common issues or more individual issues, regardless of relative importance. That's incorrect. An issue “central to the validity of each one of the claims” in a class action, if it can be resolved “in one stroke,” can justify class treatment. Wal–Mart Stores, Inc. v. Dukes, supra, 131 S.Ct. at 2551. That was said in the context of Rule 23(a)(2), the rule that provides that class actions are permissible only when there are issues common to the members of the class (as of course there are in this case). But predominance requires a qualitative assessment too; it is not bean counting." Slip op. at 8-9 (citing Amgen).
- "It would drive a stake through the heart of the class action device, in cases in which damages were sought rather than an injunction or a declaratory judgment, to require that every member of the class have identical damages. If the issues of liability are genuinely common issues, and the damages of individual class members can be readily determined in individual hearings, in settlement negotiations, or by creation of subclasses, the fact that damages are not identical across all class members should not preclude class certification. Otherwise defendants would be able to escape liability for tortious harms of enormous aggregate magnitude but so widely distributed as not to be remediable in individual suits." Slip op. at 9-10.
- "There is a single, central, common issue of liability: whether the Sears washing machine was defective. Two separate defects are alleged, but remember that this class action is really two class actions. In one the defect alleged involves mold, in the other the control unit. Each defect is central to liability. Complications arise from the design changes and from separate state warranty laws, but can be handled by the creation of subclasses." Slip op. at 10-11.
- "The concordance in reasoning and result of our decision and the Sixth Circuit's decision [in In re Whirlpool Corp. Front-Loading Washer Product Liability Litig., ___ F.3d ___, 2013 WL 3746205 (6th Cir. Jul. 18, 2013)] averts an intercircuit conflict." Slip op. at 11.
My post on the Sixth Circuit's post-Comcast Whirlpool opinion is here. In other blog coverage on Butler v. Sears, Paul Karlsgodt predicts that moldy washing machines will save the consumer class action from extinction.
We still await the Seventh Circuit's post-Comcast opinion in the third GVR case, RBS Citizens, N.A. v. Ross, no. 12-165. This one is an employment matter.