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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

The Further Adventures of Behrend v. Comcast Corp.

Posted in Certification

Earlier this week, the Supreme Court quietly granted certiorari in Sears, Roebuck & Co. v. Butler:

Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Comcast Corp. v. Behrend, 569 U. S. ___ (2013).

The case below, Butler v. Sears, Roebuck & Co., had been notable because it was a Judge Posner-written opinion that affirmed a certification (and reversed a denial) of a pair of class actions alleging that certain models of washing machines were defective. The Seventh Circuit had "accepted the appeals in order to clarify the concept of "predominance" in class action litigation." It held that in these cases, the class action would be an efficient means of resolving the controversy. (This is an analysis that sounds like it tips over into superiority.) And Judge Posner was not troubled by variations in damages, or the possibility that some of the class members had been unaffected by the alleged defect.

"Predominance is a question of efficiency. 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 a 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.

This is the third case the Supreme Court has remanded in the wake of Comcast Corp. v. Behrend. At this point, it is safe to say that the Behrend standard is having real effect already.