Last week, the Seventh Circuit must have had a serious case of déjà vu.
Last year, the court reversed the district court's decision to deny class certification to a group. Sears, the defendant, appealed to the Supreme Court and, in light of the Court's recent decision in Comcast Corp. v. Behrend, the case was remanded for reconsideration.
Forbes notes that he second time around, the Seventh Circuit came to the exact same conclusion, and distinguished the Court's decision in Comcast.
The plaintiffs sued Sears, and sought certification of two classes based on defects to Whirlpool washing machines: (1) alleging defects that result in mold; and (2) alleging defects with the control-unit. The district court certified the control-unit class and denied certification of the mold class. The Seventh Circuit reversed the denial of the mold class. On remand from the Supreme Court, the Seventh Circuit again had to determine whether Comcast "cut the ground out from under our decision," and the court found that it did not.
Comcast Corp. v. Behrend
The Comcast case involved an antitrust class action -- a distinction the court found noteworthy. In Comcast, plaintiffs were alleging damages that were not related to their theory of injury. Here, unlike Comcast, the court found that all the plaintiffs, regardless of mold or control-unit class, were essentially alleging the same thing: that the Whirlpool washing machines were defective.
Regarding the issue of predominance required by Rule 23(b)(3), the Seventh Circuit distinguished Comcast because in that case "it was not the existence of multiple theories in that case that precluded class certification," instead, it was the failure of plaintiffs' to base their damages on the impact of their injury. The Seventh Circuit found that was not the case here.
Though plaintiffs' damages may vary based on the model of their washer, and based on various state laws, the question was still the same: was the washer defective? The court found that variations in damages could be resolved by creating subclasses.
Will the Supreme Court Weigh In ... Again?
It's likely that Sears will appeal again to the Supreme Court. Interestingly, the Sixth Circuit also had a similar case remanded to it by the Supreme Court in light of Comcast, and came to the same conclusion as the Seventh Circuit. For now, there is no circuit split. But, we'll know if the Sixth and Seventh circuit's got Comcast wrong if the Supreme Court grants cert.