“Predominance” Requirement Clarified in New Seventh Circuit Decision by Judge Posner

Sears customers alleged in a class action against Sears, Roebuck and Co. that their Kenmore-brand Sears washing machines had two defects.  One defect occurred in their front-loading “high efficiency” washing machines.  Because of the low volume of water used in the “high efficiency” machines and the low temperature of the water compared to traditional machines, they do not clean themselves adequately and this results in a mass of microbes that form where the washing occurs, the drum, leading to mold and bad odors.  The other defect stops the machine at the wrong time (the “control unit” defect).  The district court denied certification of the mold class and granted certification of the “control unit” class.

The Seventh Circuit accepted the Rule 23 (f) appeals in order to clarify the concept of “predominance” under Rule 23(b) of the Federal Rules of Civil Procedure.   Rule 23(b) provides that in order to maintain a class action the district court must find “that the questions of fact or law common to class members predominate over any questions affecting only individual members.”  The district court denied certification of the mold class because she accepted Sears’ argument that Whirlpool (the manufacturer of the washing machines), made design modifications so that different models have different defects and therefore common questions of fact regarding the mold problem do not predominate over individual questions of fact.

The Seventh Circuit disagreed with this analysis and explained that predominance deals with the question of efficiency.  The appellate court held that the basic question for the mold claim is “were the machines defective in permitting mold to accumulate and generate noxious odor?- is common to the entire mold class, although the answer may vary with the differences in design.  The individual questions are the amount of damages owed particular class members.”  The Seventh Circuit also held that for the “control unit” claim the principal issue is whether the control unit was defective.  The court went on to explain that “[t]he only individual issues – issues found in virtually every class action in which damages are sought—concern the amount of harm to particular class members.  It is more efficient for the question whether the washing machines were defective — the common question to all class members—to be resolved in a single proceeding than for it to be litigated separately in hundreds of different trials, though, were that approach taken, at some point principles of res judicata or collateral estoppel would resolve the common issue for the remaining cases.”

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