"Supreme Court Vacates Another No-Injury Washing Machine Class Action"

by Skadden, Arps, Slate, Meagher & Flom LLP
Contact

Earlier today, the U.S. Supreme Court summarily vacated and remanded the U.S. Court of Appeals for the Seventh Circuit’s decision in Butler v. Sears, Roebuck & Co., 702 F.3d 359 (7th Cir. 2012), for further consideration in light of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (Comcast), which was decided earlier this year. See Butler v. Sears, Roebuck & Co., No. 12-1067 (U.S. June 3, 2013).

In Butler, the Seventh Circuit held that a class of consumers of allegedly mold-producing washing machines and a class of consumers with washing machines that allegedly had a manufacturing defect in their central control units were appropriate for class treatment. In an opinion authored by Judge Posner, the court held that the predominance standard was satisfied as to both classes because it would be more efficient to resolve the question whether the machines were defective in a single class trial than in individual proceedings. 702 F.3d at 362. The court did so on the supposed basis that a common defect was alleged, even though the proposed mold class implicated 27 different washing machines. The Seventh Circuit also determined class certification to be proper despite the fact that the vast majority of individuals in each class had never experienced the alleged mold or central control unit problems with their washers — effectively ignoring the well-established principle that the predominance inquiry must take account of whether each element of a claim can be proven with classwide evidence.

The Supreme Court’s decision to vacate and remand the Butler ruling comes on the heels of its recent order vacating and remanding a similar washing machine class action in Whirlpool Corp. v. Glazer, 678 F.3d 409 (6th Cir. 2012). Thus, today’s summary order marks the second time in several months that the Supreme Court has asked a federal appeals court to determine whether consumer class actions encompassing substantial numbers of uninjured class members are certifiable in light of Comcast. As we reported in a previous client alert, the Supreme Court in Comcast reversed a sweeping class action encompassing more than two million current and former Comcast cable subscribers who alleged violations of federal antitrust laws. See Comcast, 133 S. Ct. 1426. The Supreme Court held that the class at issue failed the requirements of Rule 23(b)(3) because the plaintiffs’ damages theory did not fit their theory of liability, and “[q]uestions of individual damage calculations will inevitably overwhelm questions common to the class.” Id. at 1433.

While it is unclear how the Seventh Circuit will rule when it reconsiders the Butler case, the rationale behind the Supreme Court’s analysis in Comcast is clearly in tension with the Seventh Circuit’s prior ruling. Specifically, Judge Posner ruled that “[p]redominance is a question of efficiency,” which is satisfied any time “it [is] more efficient, in terms both of economy of judicial resources and of the expense of litigation to the parties, to decide some issues on a class basis or all issues in separate trials.” Butler, 702 F.3d. at 362. This reasoning is contrary to Comcast’s affirmation that each of the Rule 23 prerequisites for class certification must be subject to a “rigorous analysis,” including the predominance requirement of Rule 23(b)(3). The Comcast decision also makes clear that a plaintiff must put forth a method sufficient to calculate damages on a classwide basis in Rule 23(b)(3) class actions. Both of these aspects of the Comcast ruling have the potential to influence the Seventh Circuit’s reconsideration of Butler on remand. Sears has argued, for example, that the Seventh Circuit’s predominance analysis was insufficiently rigorous, relegating its inquiry to an efficiency-only calculus. The Comcast decision’s requirement that damages must be proven on a classwide basis also could prompt additional scrutiny of the lack of injury for the majority of class members, since any damages evidence would have to take account of differences within the class.

Download PDF

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Skadden, Arps, Slate, Meagher & Flom LLP | Attorney Advertising

Written by:

Skadden, Arps, Slate, Meagher & Flom LLP
Contact
more
less

Skadden, Arps, Slate, Meagher & Flom LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!