Case Information
*1 Before P OSNER R IPPLE AND H AMILTON , Circuit Judges . P OSNER Circuit Judge . has vacated judgment suit (reported *2 8030 2012)) and remanded case to us recon ‐ sideration in light Corp. Behrend S. Ct. (2013). Sears, Roebuck & Co. Butler (2013) (mem.).
This suit, diversity suit based on breach ‐ warranty laws six states, really actions ‐ cause classes and different claims, though both arise defects in ‐ brand Sears machines sold overlapping periods beginning and 2004. One complains defect causes (the “mold claim”), other de fect stops machine inopportunely (the “control claim”). The district court denied certification complaining about defect causes granted certification complaining about causes sudden stoppage. plaintiffs asked us to re verse denial, so; Sears asked us reverse grant, refused. asks us remand case district court
fresh ruling on certification light alterna tively deny certification both actions. plain tiffs ask us reinstate judgment, granting certification both.
Sears’ request remand district court based significant degree new evidence has come light since district court ruled certification Septem ber 2011. remains pending district court, and, itself emphasizes, rulings certification suits tentative can revisited changed circumstances require. Fed. R. Civ. *3 ment of 23(c)(1); Amgen Inc. Connecticut Retirement Plans & Trust Funds n. (2013); Johnson Meriter Health Services Employee Retirement Plan 2012). What could mean remand case court before which the is pending?
The question presented by the Court’s remand is of law—whether the decision cut the ground out under our decision ordering the classes certified. There no point delaying re mand await consideration by factual moot basis decision. claim mold because low volume and temperature water front loading machines compared volume and temperature traditional top loading machines, they don’t clean themselves adequately result mold accumulates emits bad odors. Traditional household cleaners do eliminate molds odors. Roughly 200,000 these brand machines are sold year many thousands complaints bad odors ma chines’ owners. contends Whirlpool (the manufacturer
washing machines) made number design modifications, result models differently defective; contend any design changes elimi nated odor problem, they diminished it. basic question presented mold claim—are ma chines defective permitting accumulate gen erate noxious odors?—is entire class, although likely vary across (the owners machines). A *4 efficient procedure for litigation of a case such as this, a case involving a that imposed costs tens thousands consumers, yet not a cost any them large enough justify expense an individual suit. A determination liability could be followed by hearings determine sustained by class member. parties probably would agree schedule based cost fixing replacing mem bers’ mold contaminated washing machines. In that event hearings would be brief; indeed would probably quickly settled.
We added that if it turned out litigation unfolded that were large differences mold problem among differently designed washing machines, judge might decide create subclasses (and further reason that Sears’ might vary across states em braced action because differences among those states’ laws), but possibility was not an obsta cle certification single outset. argued most members plaintiff not experienced any problem. if so, pointed out, argument refusing certify but certifying then entering judgment would largely exonerate Sears—a course should welcome, who opt out bound judgment. second involves computer device gives instructions washing machine’s various moving parts. company supplied these control units machines altered manufacturing process way caused some units mistakenly *5 to “believe” that serious error had occurred therefore to order the machine to shut down, though actually no error. The plaintiffs allege that knew about the problem yet charged owner defective machine hundreds dollars to repair the central control unit, after was corrected continued ship machines containing earlier manufactured, defective units. principal issue control unit class action
whether control unit indeed defective. only indi vidual concern amount harm particular members, pointed out was more efficient for principal issue—common members—to be resolved single proceeding than be litigated sep arately hundreds different trials. added that, as with action, would want consider create different subclasses states because different state laws.
So how Court’s Comcast bear rulings, just summarized, first decision? holds damages suit cannot certified proceed action unless damages sought result wide injury suit alleges. antitrust suit, said “if [the plain tiffs] prevail their claims, they entitled only damages resulting reduced overbuilder competition, since only theory antitrust impact accepted treatment District Court. It follows model purporting serve evidence must measure those attributable *6 ‐ that theory. If the model not even attempt do that, cannot possibly establish that damages are susceptible of measurement across the entire class purposes of Rule 23(b)(3).” S. Ct. at 1433. “[A] methodology that identifies damages that not result of wrong ” is an impermissi ‐ ble basis calculating wide damages. Id . at (em phasis added). “For all know, cable subscribers Gloucester County overcharged because of petitioners’ elimination of satellite competition ( a theory of that is capable of classwide proof ).” Id . (em phasis added). And next page of opinion quotes approvingly Federal Judicial Center, Reference Manual Scientific Evidence (3d ed. 2011), that “the first step a damages study translation legal theory of harmful event into analysis economic impact event .” (emphasis Court’s). None parties even challenged court’s ruling certifica tion required “that damages resulting from…[the anti trust violation] were measurable ‘on a wide basis’ through use a ‘common methodology.’” at 1430.
Unlike situation no possibility damages could attributed acts de fendants challenged wide basis; all members attribute their control unit. argues rejects notion efficiency proper basis certification, thus rejects statement “predominance” en tire class, requirement under 23(b)(3), “is question efficiency.” 362. *7 But support argument Sears cites statement dissenting opinion Comcast “economies time expense” favor certification, S. Ct. 1437—a statement majority opinion contradict. wrong think anything a dissenting opinion approves majority must disapprove of. compares design changes affect ‐
ed severity problem antitrust liability theories . was existence multiple theories precluded certifica tion; was plaintiffs’ failure base damages they sought antitrust impact—the injury—of which plaintiffs were complaining. contrast, any buyer machine who experienced prob lem was harmed breach warranty complaint.
Furthermore fundamentally, case, unlike , neither asked decide nor de cide determine wide basis. As explained McReynolds v. Merrill Lynch, Pierce, Fen ner & Smith, Inc. F.3d 491–92 (7th Cir. 2012), distin guishing Wal Mart Stores, Inc. Dukes (2011), limited determining liability wide basis, with separate hearings determine—if es tablished—the members, homogeneous groups members, permitted Rule 23(c)(4) will often sensible way proceed. See *8 if right that very case from Comcast why the Supreme Court remand the to us reconsideration in light decision? The answer must lie in the emphasis the majority opinion places the requirement predominance and its having to be satisfied by proof presented at certification stage rather than deferred later stages litigation. See 1432–33. Court doesn’t want suit drag years with parties judge trying figure out whether should have certified. Because was (in view majority) seeking beyond those flowing theory antitrust injury plaintiffs, possibility loomed “questions affecting individual members” predominate over questions “common members,” rather than, 23(b)(3) requires, reverse.
Sears argued passionately its petition certiorari failed make sufficiently rigorous inquiry into predominance allowing classes (the class) be certified. petition filed before Court issued its Com cast felt should al lowed amend its submission light sub mit amended argument us first instance. thinks predominance determined simply counting noses: is, determining more more issues, regardless rela tive importance. That’s incorrect. An issue “central va lidity one claims” action, if can resolved “in stroke,” can justify treatment. Wal *9 8029, 8030 9 Mart Stores, Inc. v. Dukes , supra , S. Ct. at 2551. That said context Rule 23(a)(2), rule provides actions are permissible only when there are issues common members (as course are case). predominance requires qualitative ‐ sessment too; it is not bean counting. In Amgen Inc. v. Con ‐ necticut Retirement Plans & Trust Funds , supra , 1196, said requirement predominance not satisfied if “individual questions…overwhelm questions common class,” Amchem Products, Inc. Wind sor U.S. (1997), it said “predominance inquiry tests proposed classes sufficiently cohe sive warrant adjudication representation.” And re Inter Op Hip Prosthesis Liability Litigation F.R.D. (N.D. Ohio 2001), read “common need only predominate, not outnumber issues.” Or put Messner Northshore University HealthSystem 2012), “Under district court’s ap proach [which Messner rejected], Rule 23(b)(3) would require not common evidence methodology, but also common results for class. That approach would come very close requiring common proof members, which not required. To put another way, asked showing common questions, but showing common answers those questions. 23(b)(3) impose such heavy burden.”
It drive stake through heart ac tion device, cases which were sought rather than injunction declaratory judgment, require every member identical damages. If sues genuinely issues, dam *10 ages of individual class members can be readily determined individual hearings, in settlement negotiations, or crea tion subclasses, fact damages are not identical across members should not preclude certifica tion. Otherwise defendants would be able to escape tortious harms enormous aggregate magnitude but so widely distributed be remediable individual suits. As noted Carnegie Household Int’l, Inc. F.3d 2004), “the more claimants are, more likely a action is yield substantial economies litigation. It would hardly be improvement lieu this single million suits each seeking $15 $30…. realistic alternative a is million suits, but zero individual suits, lunatic fanatic sues $30” (emphasis original). present is less extreme: tens thousands members, seeking few hundred dollars. few such class, considering costs distraction litigation, think so meager prospect made suing worthwhile.
There single, central, issue liability: machine defective. Two sep arate defects alleged, but remember really actions. defect involves mold, other unit. Each central liability. Complications arise from design changes separate state warranty laws, but can handled creation subclasses. See, e.g., Johnson Meriter Health Ser vices Employee Retirement Plan supra (10 sub classes). These matters judge consider first instance, will able present her *11 8029, evidence it’s obtained since district judge ruled certification almost years ago.
One last point. Shortly before our original decision, Sixth Circuit had upheld certification single identical (the defendant, Whirlpool, manufacturer defective brand wash ing machines), except involve other claim our case, claim. In re Whirlpool Corp. Front Loading Washer Products Liability Litigation (6th Cir. 2012). Whirlpool sought certiorari, and granted it, vacated appeals’ judgment, remanded case, just as our case. (2013) (mem.). On remand Sixth Circuit, denying done defendant’s motion remand court, interpreting do, concluded requirement predominance satisfied. re Whirlpool Corp. Front Loading Washer Products Liability Litiga tion No. 4188, WL 3746205, *2, *16–19 Ju ly 2013). concordance reasoning result Sixth Circuit’s decision averts intercir cuit conflict.
Our judgment November hereby reinstat ed. P. 23(c)(1)(C); Advisory Committee Notes Amend
Advisory Committee Notes Amendment 23(b)(3); Pella Corp. Saltzman 393–94 2010) (per curiam).