Seventh Circuit Distinguishes Comcast and Rejects "Bean Counting" of Common Issues -- Butler v. Sears II

In Butler v. Sears II, a class of consumers alleged that the "low volume and temperature of the water" in certain frontloading washing machines had resulted in mold growth and bad odors that amounted to a breach of warranty.  Sears argued that while it never eliminated these alleged design defects it had implemented changes in successive models that tended to reduce the problem.  As a result, Sears argued that class treatment was improper because the variations between the different models created "individualized" issues that would supposedly predominate in the case. 

The Court rejected this argument, holding instead that whether the alleged design was a breach of warranty was the "predominant" issue. The differences between the models merely went to the calculation of damages.  Writing for the court, Judge Posner further explained that the touchstone for class certification is the efficiency to be achieved by deciding common issues just once for an entire group of plaintiffs.  

Sears thinks that predominance is determined simply by counting noses: that is, determining whether there are more common issues or more individual issues, regardless of relative importance. That's incorrect. An issue “central to the validity of each one of the claims” in a class action, if it can be resolved “in one stroke,” can justify class treatment. . . . [P]redominance requires a qualitative assessment . . . it is not bean counting.

If the issues of liability are genuinely common issues, and the damages of individual class members 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.

Butler II, also distinguished the U.S. Supreme Court decision in Comcast v. Behrund, which contains confusing verbiage about the role of a particular damage model in an unusual antitrust case in an unusual procedural setting.  Butler II confirmed however that Comcast did not "cut the ground out from under" the normal rule that damage calculations do not prevent class certification.

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