Posner, Seventh Circuit Narrow Supreme Court’s Holding In Comcast – Certify Butler v. Sears, Roebuck And Co. Class (Again)

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Background: Butler v. Sears, Roebuck and Co. is two class action lawsuits rolled into one.  The classes have different members and different claims arising from alleged defects in Kenmore-brand Sears washing machines.  One class action complains of a defect that causes mold (“mold claim”), whereas the other claims that a defect stops the machine inopportunely (“control-unit claim”).  The Seventh Circuit granted class certification for both classes, however the “Comcast decision cut the ground out from under [the Seventh Circuit’s] decision ordering that the two classes be certified.”

Upon reconsideration, Judge Posner and the Chicago panel read the Comcast holding narrowly, deciding “Comcast holds that a damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide injury that the suit alleges.” 

According to the Seventh Circuit, common issues need only predominate, not outnumber individual issues and here, “there is a single, central, common issue of liability” in each of the Sears’ class actions. 

The following is a telling indication of how the Seventh Circuit will treat commonality and predominance requirements in the future:

It would drive a stake through the heart of the class action device, in cases in which damages were sought . . . 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 …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 tortuous harms of enormous aggregate magnitude”.