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Butler v. Sears, Roebuck & Co.

United States Court of Appeals for the Seventh Circuit

July 8, 2013, Submitted; August 22, 2013, Decided

Nos. 11-8029, 12-8030

Opinion

 [*797]  Posner, Circuit Judge. The Supreme Court has vacated our judgment in this class action suit (reported at 702 F.3d 359 (7th Cir. 2012)) and remanded the case to us for reconsideration  [**2] in light of Comcast Corp. v. Behrend, 133 S. Ct. 1426, 185 L. Ed. 2d 515 (2013). Sears, Roebuck & Co. v. Butler, 133 S. Ct. 2768, 186 L. Ed. 2d 215 (2013) (mem.).

This suit, a diversity suit based on the breach-of-warranty laws of six states, is really two class actions because the classes have different members and different claims, though both arise from alleged defects in Kenmore-brand Sears washing machines sold in overlapping periods beginning in 2001 and 2004. One class action complains of a defect that causes mold (the "mold claim"), the other of a defect that stops the machine inopportunely (the "control-unit claim"). The district court denied certification of the class complaining about the defect that causes mold and granted certification of the class complaining about the defect that causes the sudden stoppage. The plaintiffs asked us to reverse  [*798]  the denial, and we did so; Sears asked us to reverse the grant, and we refused.

Sears asks us to remand the case to the district court for a fresh ruling on certification in light of Comcast, or alternatively to deny certification in both class actions. The plaintiffs ask us to reinstate our judgment, granting certification in both.

Sears' request for a remand to the district  [**3] court is based to a significant degree on new evidence that has come to light since the district court ruled on certification in September 2011. But the case remains pending in the district court, and, as Sears itself emphasizes, ] rulings on certification in class action suits are tentative and can be revisited by the district court as changed circumstances require. Fed. R. Civ. P. 23(c)(1)(C); Advisory Committee Notes to 1966 Amendment of Rule 23(c)(1); Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 133 S. Ct. 1184, 1202 n. 9, 185 L. Ed. 2d 308 (2013); Johnson v. Meriter Health Services Employee Retirement Plan, 702 F.3d 364, 370 (7th Cir. 2012). What could it mean to remand a case to a court before which the case is pending?

The question presented by the Supreme Court's remand is one of law—whether the Comcast decision cut the ground out from under our decision ordering that the two classes be certified. There is no point in delaying our decision on remand to await consideration by the district court of factual issues that may be moot on the basis of the Comcast decision.

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727 F.3d 796 *; 2013 U.S. App. LEXIS 17748 **; CCH Prod. Liab. Rep. P19,211; 86 Fed. R. Serv. 3d (Callaghan) 528; 2013 WL 4478200

LARRY BUTLER, et al., individually and on behalf of all others similarly situated, Plaintiffs-Appellants, Cross-Appellees, v. SEARS, ROEBUCK AND CO., Defendant-Appellee, Cross-Appellant.

Subsequent History: US Supreme Court certiorari denied by Sears v. Butler, 2014 U.S. LEXIS 1507 (U.S., Feb. 24, 2014)

Prior History:  [**1] Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 06 C 07023, 07 C 00412, 08 C 01832 — Sharon Johnson Coleman, Judge. On Remand from the Supreme Court of the United States, No. 12-1067.

Butler v. Sears, 702 F.3d 359, 2012 U.S. App. LEXIS 23284 (7th Cir. Ill., 2012)

CORE TERMS

damages, class action, district court, class member, certification, predominance, machines, washing machine, control unit, class-wide, class certification, antitrust, questions, subclasses, odors, suits

Civil Procedure, Special Proceedings, Class Actions, Certification of Classes, General Overview, Prerequisites for Class Action, Commonality, Predominance, Declaratory Judgments, State Declaratory Judgments, Remedies, Injunctions