Seventh Circuit Review


Class actions are an essential tool for plaintiffs seeking relief from relatively minor harms. In recent years, the Supreme Court has handed down a collection of rulings that seem to have created additional hurdles––or heightened those already in place––to obtaining class certification under Federal Rule of Civil Procedure Rule 23. One such ruling, Comcast v. Behrend, seemed to have enhanced the predominance requirement and thus raised speculation from various commentators about the ability of plaintiffs to bring class actions where resolution of liability and damages questions are raised for the entire class.

The Seventh Circuit, in Butler v. Sears, Roebuck and Company, upheld class certification for two subclasses seeking damages for various mechanical issues with Sears-manufactured washing machines. In doing so, the court confirmed that the commentator's concerns about the possible far-reaching implications are misplaced.

The Comcast Court ruled that where a class seeks a classwide award of damages, the damages sought must be susceptible to classwide determination. The Seventh Circuit, on remand from the Supreme Court, held that the issues considered in Comcast are inapplicable where plaintiffs only seek determination of liability, and not damages, on a classwide basis. The court pointed to Rule 23(c)(4), which explicitly permits bifurcation of litigation as a quasi-end-run around the limitations the Comcast Court seemingly created.

The Seventh Circuit's reasoning is best understood through two additional cases, Ira Holtzman, CPA v. Turza, and Parko v. Shell Oil. These cases help define the court's predominance jurisprudence and direct district courts, who are similarly in lock-step, in their predominance determinations.

Commentator's worries, therefore, are unfounded. The Seventh Circuit, in unison with those circuits who have ruled on the issue, appropriately limited Comcast's reach to cases where (1) plaintiffs seek classwide determination of damages, rather than bifurcating their suits under 23(c)(4) or (2) fail to present a damages model that is consistent with the injuries alleged. As Justice Ginsburg noted in dissent the "opinion broke no new ground on the standard for certifying a class action under Rule 23(b)(3)."

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