As we reported two weeks ago, the Sixth Circuit on July 18 re-affirmed the certification of a liability-only class of Ohio consumers following the Supreme Court’s directive that it reconsider its previous affirmation of the same class in light of the decision in Comcast v. Behrend,133 S. Ct. 1426 (2013). SeeIn re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 6th Cir. No. 10-4188 (July 18, 2013). The Sixth Circuit found that the certification of a liability-only class did not run afoul of Comcast, which turned on a problematic class-wide damages model, and thus the Sixth Circuit panel once again affirmed the class certification.
Just two days ago, the plaintiffs in a similar case pending in the Seventh Circuit repeatedly citedthe Sixth Circuit’s July 18 opinion in urging the Seventh Circuit to affirm its prior decision certifying a class of consumers who are suing Sears Roebuck & Co. over allegedly defective front-loading washing machines. SeeButler et al. v. Sears Roebuck & Co., Case Nos. 11-8029 and 12-8030 (7th Cir.). Just as it did with the Sixth Circuit’s original certification decision, the Supreme Court back in June vacated the Seventh Circuit’s prior certification decision and asked that court to reconsider its decision in light of Comcast.
It’s now the Seventh Circuit’s turn to consider its prior ruling in light of Comcast. Will the Sixth Circuit’s July 18 opinion have a significant influence on the Seventh Circuit’s decision? Or will the Seventh Circuit break from the Sixth Circuit? Stayed tuned.