Contributed by Isabella C. Lacayo
As most litigators have read this week, the Supreme Court denied defendants’ petitions for review of class certification rulings in Whirlpool v. Glazer and Sears v. Butler. Both cases are consumer class actions seeking damages for alleged defects in certain Whirlpool brand washing machines. In Whirlpool, defendants were seeking review of the Sixth Circuit’s decision to uphold the district court’s class certification order. And, in Sears, defendants sought review of the Seventh Circuit’s decision to overturn the district court’s refusal to certify the class.
Observers had been watching these petitions closely because, after the Supreme Court issued its Comcast decision, it granted certiorari, vacated the decisions below, and remanded both cases to the appellate courts for further consideration in light of its Comcast decision (see Melody Akhavan’s related post here). In Comcast, the Supreme Court held, among other things, that certification of a class was improper where the plaintiffs’ damages theory accounted for injuries that were not common to all members of the class.
Of course, defendants hoped that the Supreme Court’s post-Comcast remands would help in the fight against certification—all along, defendants have argued that a class should not be certified when the alleged injuries vary so greatly from consumer to consumer, with some consumers having no injury at all. But the remands only resulted in the Sixth and Seventh Circuits affirming their previous decisions. The Circuit courts took the view that Comcast applies only to the issue of class-wide damages and envisioned scenarios where classes could be certified for liability purposes, followed by individualized damages assessments.
Now the Supreme Court has refused to revisit the Circuit courts’ decisions. While manufacturers hoped to get additional guidance from the Supreme Court, and there are legitimate concerns that remain unaddressed, all is not lost. There may be some confusion among the lower courts and resulting inconsistent decisions, but the Supreme Court’s decision not to review the cases at this point does not undermine the importance of the Court’s Dukes and Comcast decisions. Dukes requires plaintiffs to demonstrate that commonality can be established for all class members before certification. And Comcast still requires plaintiffs to show that damages are determinable on a class-wide basis in order to satisfy the predominance requirement of Rule 23(b)(3).
For now, the Supreme Court is going to wait and see how lower courts apply its decisions and any uncertainty or inconsistency will eventually make its way back up to the Supreme Court. We will continue to monitor the “Whirlpool/Sears Class Certification Saga” as well as class certification issues generally.