In the latest class action involving front-loading washing machines, the Eleventh Circuit reversed the certification of two statewide Texas and California classes of purchasers contending that the front door seal on early models of the appliances was defective and created a foul odor. In so ruling, the court bucked the trend of the Sixth and Seventh Circuits, which had affirmed certification of similar classes. See In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013); Butler v. Sears, Roabuck & Co., 727 F.3d 796 (7th Cir. 2013).
The Eleventh Circuit first subtly modified its standard of review, citing the “abuse of discretion” standard but noting that in the context of a class action, “review for abuse of discretion often ‘does not differ greatly from review for error.’” Defendants seeking reversal of class certification decisions by an Eleventh Circuit district court will want to note this subtle change.
The court of appeals next took the district court to task for reciting three outdated but still often-cited statements regarding the standard of proof on class certification. The district court had stated that (1) it “resolves doubts related to class certification in favor of certifying the class,” (2) it “accepts the allegations of the complaint as true,” and (3) it drew all inferences and evidence in the light most favorable to the party seeking class treatment. The appellate court reminded it, however, that the party seeking certification has the burden of proof, and the entire point of a burden of proof is that if doubt remains about whether the standard is satisfied, the party with the burden loses. It further reminded litigants that class actions are an exception to the American tradition of individual litigation. Further, the burden is one of proof, not pleading. The plaintiff must show that the requirements of Rule 23 are in fact satisfied. The district court has the duty to actually decide relevant facts pertaining to class treatment, not accept a point of fact as true or construe it in anyone’s favor.
The court of appeals then held that the trial court erred in assessing predominance under both Texas and California law. The court misunderstood the plaintiffs’ California unfair competition claim, which required uniform exposure to the defendant’s advertisements on its website. The plaintiffs made no effort to prove that any member of the California class visited the website prior to purchasing his washing machine. Texas unfair competition law similarly required reliance, and the Texas courts already had ruled that proving reliance on a classwide basis is a “near-impossibility.” Again, there was no evidence that any class member saw any advertisement from the defendant prior to purchasing a washing machine. Finally, the court improperly refused to answer several questions regarding presuit notice, an opportunity to cure, and manifestation of the defect prior to certifying warranty classes under California and Texas law. These questions bore on predominance, and whether they resulted in individualized proof had to be answered before a decision could be made whether to certify a class.
At the same time, the court rejected the defendant’s argument that under the Supreme Court’s recent Comcast decision, individualized damages precluded a finding of predominance. It held that Comcast did not alter the “black-letter rule” that individualized damages do not always defeat predominance. It further held that the defendant’s affirmative defense of “misuse” by purchasers did not inherently defeat predominance. It was relevant to the mix, to be sure. On remand, the trial court could consider the individualized damages and defense in reevaluating predominance under the correct legal standard.
Brown v. Electrolux Home Products, Inc., Case No. 15-11455 (11th Cir. March 21, 2016).