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Civil Procedure — class actions — predominance

By: WISCONSIN LAW JOURNAL STAFF//November 13, 2012//

Civil Procedure — class actions — predominance

By: WISCONSIN LAW JOURNAL STAFF//November 13, 2012//

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United States Court of Appeals For the Seventh Circuit


Civil Procedure — class actions — predominance

Where all of the proposed members of a class claim that a defect in their washing machines caused mold, the class should have been certified.

“Predominance is a question of efficiency. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615-16 (1997); Committee Notes to 1966 Amendment to Fed. R. Civ. P. 23; Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 n. 12 (11th Cir. 1997); William B. Rubenstein, 2 Newberg on Class Actions § 4:49 (5th ed. 2012). Is it 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? A class action is the more efficient procedure for determining liability and damages in a case such as this involving a defect that may have imposed costs on tens of thousands of consumers, yet not a cost to any one of them large enough to justify the expense of an individual suit. If necessary, a determination of liability could be followed by individual hearings to determine the damages sustained by each class member (probably capped at the cost of replacing a defective washing machine—there doesn’t seem to be any claim that the odors caused an illness that might support a claim for products liability as distinct from one for breach of warranty). 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 argues that most members of the plaintiff class did not experience a mold problem. But if so that is an argument not for refusing to certify the class but for certifying it and then entering a judgment that will 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.”

Affirmed in part, and Reversed in part.

11-8029 & 12-8030 Butler v. Sears, Roebuck & Co.

Appeals from the United States District Court for the Northern District of Illinois, Coleman, J., Posner, J.


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