Do you get more with a Kenmore?
Today the Seventh Circuit — with Judge Richard Posner tickling the keyboard — instructed a district judge to decertify a class action that challenged the audacity of Sears, Roebuck and Company in labelling a Kenmore-brand clothes dryer as sporting a "stainless steel drum" when in fact part of the raiment-tumbler consisted of "mild steel" with a ceramic coating.
The class representative alleged that his garments got rusty when the non-stainless part, er, oxidized.
Judge Posner first praised the class mechanism as "an ingenious device for economizing on the expense of litigation and enabling small claims to be litigated." Thorogood v. Sears, Roebuck and Co., No. 08-1590, slip op. at 3 (7th Cir. Oct. 28, 2008). So far so good. But then the opinion turns less kindly: Class cases raise potential conflicts between lawyers and class members, encourage sell-out settlements, enhance the risk of wrong decisions, and — wait for it — threatens federalism. Id. at 3-8.
None of those things doomed class certification. No. What did? The court's view that no one (or hardly anyone) would share Mr. Thorogood's belief that slapping a "stainless steel drum" label on a dryer signifies 100 percent stainless steel or warrants against rusty duds. The trouble with determining actual damages and applying 29 different states' deceptive practices statutes compounded the inadvisability of class treatment, the court held.
Judge Posner did put in a good word for computing damages, in appropriate cases, on a class-wide basis: "'Aggregate class proof of monetary relief may . . . be based on sampling techniques or other reasonable estimates, under accepted rules of evidence.' 3 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 10.3, p. 480 (4th ed. 2002)." Id. at 12 (citing Stewart v. General Motors Corp., 542 F.2d 445, 452-53 (7th Cir. 1976); United States v. City of Miami, 195 F.3d 1292, 1299-1300 (11th Cir. 1999); Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 259-63 (5th Cir. 1974)).
