Judge Posner, of the Seventh Circuit, wrote the opinion that reversed a district court’s decision denying class certification in a case involving warranty claims against Sears for defective front loading washing machines that allegedly do not clean themselves sufficiently and develop mold that gives off a bad odor.
The opinion (joined by Ripple and Hamilton) turns on Judge Posner’s insightful reading of 23(b)(3) predominance. The decision follows a similar recent decision in the Sixth Circuit, which also found predominance satisfied based on the same mold problem. In re Whirlpool Corp. Front Loading Washer Products Liability Litigation, 678 F.3d 409 (6th Cir. 2012). Posner notes that, by reaching a similar result, no intercircuit conflict results.
The case involves breach of warranty claims in six states. The district court had been convinced by defendant’s argument that there was no predominance because the case involved 27 different models, some of which had been subject to design modifications during the class period in an effort to ameliorate the mold problem.
The court noted that the basic question in the litigation-were the machines defective in permitting mold to accumulate and generate noxious odors?-is common to the entire class, although the answer may vary with the differences in design. The court also recognized that there were individual questions – the amount of damages owed particular class members – but held that did not preclude class certification.
Judge Posner wrote that if necessary, a determination of liability could be followed by individual hearings to determine the damages sustained by each class member, but probably the parties would agree on a schedule of damages based on the cost of fixing or replacing class members’ mold-contaminated washing machines. The class action procedure would be efficient not only in cost, but also in efficacy, if we are right that the stakes in an individual case would be too small to justify the expense of suing, in which event denial of class certification would preclude any relief.
Sears’ claimed that most class members didn’t experience a mold problem. Posner noted that’s an even better reason for class certification, because then entering a judgment would largely exonerate Sears-a course it should welcome, as all class members who did not opt out of the class action would be bound by the judgment.
