Butler v. Sears: Posner-Authored Decision Reverses Denial of Certification

The Seventh Circuit’s conservative reputation, like that of its most famous judge, Richard Posner, continues to be called into doubt, particularly as to class actions. Earlier this year, in McReynolds v. Merrill Lynch, Judge Posner distinguished the Supreme Court’s Wal-Mart v. Dukes decision, essentially demanding that judges apply the same analytical rigor to denying class certification motions as they do to granting them. See 672 F.3d 482 (7th Cir. 2012). Now, in Butler v. Sears, Posner has set out to “clarify the concept of ‘predominance’ in class action litigation”—the criterion that perhaps most often determines whether or not a class certification motion will be granted. See Butler v. Sears, Roebuck & Co., Nos. 11-8029, 12-8030, slip op. at 2 (7th Cir. Nov. 13, 2012).

In one of the underlying actions, the trial court denied certification as to a class of consumers alleging that various models of Whirlpool front-loading washing machines, purchased from Sears, grew mold in their washer drums. In the other, the court granted certification to a class alleging that a central control unit defect caused the washing machines to suddenly stop working. The Posner opinion reversed the certification denial and upheld the ruling granting certification.

In clarifying the predominance standard, which despite being much litigated has few clearly stated maxims or formal frameworks, Posner draws from his law and economics background and states that “[p]redominance is a question of efficiency.” Butler at 4.  He notes that, while members of the mold class purchased as many as 27 different models of the washing machines, a central question unites the entire class: “[W]ere the machines defective in permitting mold to accumulate and generate noxious odors?” Id.  Posner treats the predominance inquiry as a straightforward cost-benefit analysis, with a succinctly stated conclusion: “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.” Id. With that—essentially the mission statement for all class actions—the Seventh Circuit reversed the trial court’s certification denial.

Similarly compact is the analysis upholding the granting of certification as to the class alleging the defective control unit: “The principal issue is whether the control unit was indeed defective. The only individual issues—issues found in virtually every class action in which damages are sought—concern the amount of harm to particular class members.” Id. at 8. 

Posner opinions tend to be frequently cited, and Butler should be no exception.  Although this decision is extremely concise at less than 2,000 words, the consumer plaintiffs’ bar will likely be eager to use it to support class certification motions and appellate challenges to denials of certification.