In this series, we have previously written about the Supreme Court’s 2013 decision in Comcast Corp. v. Behrend, in which the Court held that plaintiffs seeking class certification must show that the damages sought are the result of the class-wide injury alleged in the suit. In Comcast,plaintiffs submitted an expert report on damages that assumed the validity of four separate theories of antitrust liability, but only one of those theories was ultimately accepted by the district court. Because plaintiffs’ damages model did not specify the damages attributable solely to the surviving liability theory, the Supreme Court ruled that plaintiffs “cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3),” and the Court held that class certification was therefore improper.
Some commentators and courts have read the Comcast decision very broadly to mean that class certification in Rule 23(b)(3) cases is only appropriate if damages can be calculated on a class-wide basis. Other authorities have read Comcast more narrowly as standing for the common sense proposition that if a plaintiff submits a class-wide damages model in a purported class action, that model must track the same theory of liability that provided the basis for class certification. The latter interpretation could, of course, leave open the possibility of certifying a liability-only class and permitting individualized damages calculations to be made outside the class action mechanism where appropriate.
Last month, the Supreme Court denied certiorari in two products liability lawsuits — Whirlpool Corp. v. Glazer (6th Cir.) and Butler v. Sears Roebuck & Co. (7th Cir.) — that directly posed the question of whether cases requiring individual damages inquiries could proceed as class actions after Comcast. Both courts of appeals had adopted a narrow reading of the Supreme Court’s decision and answered the question in the affirmative.
Whirlpool and Butler involved front-loading washing machines. The plaintiffs claimed that design defects rendered the machines conducive to the development of mold and, in the case of Butler, that the machines had a design defect that caused them to stop at inopportune times. Only in a limited number of the machines did mold actually accumulate. Nevertheless, the plaintiffs asked the district courts to certify classes of purchasers of the washing machines regardless of whether the machine purchased by any particular member of the class developed mold.
In Whirlpool, the district court certified a class, and the 6th Circuit affirmed that decision. InButler, the district court denied the class certification motion on the mold claim, but the 7th Circuit reversed the denial of class certification (both the district court and the 7th Circuit approved class certification with respect to second claim in that case). Thus, both the 6th and 7th Circuits ruled that the cases should proceed as class actions.
In both cases, the Supreme Court vacated the circuit court judgments granting class certification and remanded the cases, asking the 6th and 7th Circuits to reconsider their decisions in light of Comcast.