Seventh Circuit certifies Sears class action

Posted on: September 23rd, 2013 by Steve Larson
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Fotolia Washing MachineThe Seventh Circuit recently reinstated its earlier ruling in support of class certification in two class actions against Sears, Roebuck & Co. over allegedly defective washing machines, shortly after the U.S. Supreme Court vacated and remanded the case in light of Comcast Corp. v. Behrend.

The decision comes almost three months after the high court granted a petition for certiorari from Sears, vacated the Seventh Circuit’s 2012 decision and remanded the case to the appeals court for further consideration. The Supreme Court instructed the appeals court to look to its Comcast decision from March, in which it held that an antitrust action should not have been certified because the plaintiffs, a class of cable television subscribers, did not demonstrate the predominance of common issues.

But the three-judge appellate panel ruled Thursday that there is no possibility in this case that damages could be attributed to acts of the defendants that aren’t challenged on a classwide basis.

“It would drive a stake through the heart of the class action device, in cases in which damages were sought rather than an injunction or a declaratory judgment, to require that every member of the class have identical damages,” Circuit Judge Richard A. Posner wrote in the opinion. “If the issues of liability are genuinely common issues, and the damages of individuals can be readily determined in individual hearings, in settlement negotiations or by creation of subclasses, the fact that damages are not identical across all class members should not preclude class certification.”

The plaintiffs in the action had previously argued that the Sixth Circuit’s recent certification ruling in a nearly identical lawsuit meant that the Seventh Circuit should back the certification in the suit. The plaintiffs claim that Whirlpool Corp. washers sold by Sears accumulated mold and contained defective central control units, according to court documents.

In a filing urging the appeals court to affirm its previous decision, the plaintiffs repeatedly cited the Sixth Circuit’s July 18 opinion upholding certification in an action against Whirlpool over the same front-loading washers. The Supreme Court had similarly instructed the Sixth Circuit to reconsider its decision in light of Comcast. The court maintained that Comcast differed from the case because the Whirlpool class was certified only on issues of liability, not damages.

Circuit Judges Richard A. Posner, Kenneth F. Ripple and David F. Hamilton joined in the decision.

The case is Larry Butler et al. v. Sears, Roebuck & Co., case numbers 11-8029 and 12-8030, in the U.S. Court of Appeals for the Seventh Circuit.