In Circuit Courts, SCOTUS's Comcast Ruling Doesn't Make It Through The Rinse Cycle

Last year in Butler v. Sears, Roebuck & Co., the U.S. Court of Appeals for the Seventh Circuit overturned a district court’s denial of certification for a class of plaintiffs who alleged injury resulting from a mold-causing defect in Whirlpool -manufactured washing machines.  On appeal, Sears argued that plaintiffs failed to satisfy the requirement of predominance in class action litigation, but to no avail.  Announcing that “Predominance is a question of efficiency,” Judge Richard Posner (writing for the court) concluded that the class should be certified for the sake of efficiency—even though not every plaintiff actually encountered the alleged mold problem, and even though the suit implicated some twenty-seven different washer models.  Sears went on to petition the Supreme Court for certiorari.

Earlier this year, the Supreme Court decided Comcast Corp. v. Behrend, in which it held a class fails to meet the predominance standard under 23(b)(3) if the offered evidence does not show that damages are capable of measurement on a class-wide basis.  On the same day it decided Comcast , the Supreme Court granted review and vacated the panel opinion in Butler, remanding the case for reconsideration in light of Comcast.

But Judge Posner is evidently sticking to his guns. Concluding that the Supreme Court’s decision in Comcast did not “cut the ground out from under [the court’s earlier] decision,” Judge Posner this week authored a new opinion that, on the merits, is substantially indistinguishable from the first one.

In response to the argument that most members of the plaintiff class never even experienced any mold problems, Judge Posner basically says “don’t worry.” That most plaintiffs never suffered a common injury isn’t a reason not to certify the class, he concludes. Rather, the district court could still certify the class but later enter a judgment that would largely exonerate Sears. The problem with this view, of course, is that it is entirely divorced from the reality that class actions almost never reach the “judgment” stage; most settle soon after certification.

Moreover, if Judge Posner is right that Comcast “is a very different case from” Butler, why did the Supreme Court remand Butler for reconsideration in light of Comcast?  We may soon find out.  Sears once again intends to seek Supreme Court review.

The Seventh Circuit’s opinion arrives on the heels of another double down by the Sixth Circuit concerning a slightly different but related class action.  A future cert petition in that case, Whirlpool v. Glazer, as well as Butler promise to provide the Supreme Court ample opportunity to reinforce and expound on the holding in Comcast.