In the

United States Court of Appeals

For the Seventh Circuit

Nos. 11-8029, 12-8030

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.

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.

SUBMITTED SEPTEMBER 28, 2012—DECIDED NOVEMBER 13, 2012

Before POSNER, RIPPLE, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge. The parties to this class action

suit, which is based on the warranty laws of six states,

petitioned us to review separate orders by the district
2 Nos. 11-8029, 12-8030

court ruling on motions for class certification filed by

the plaintiffs. Fed. R. Civ. P. 23(f). The suit is really two

class actions because the classes have different members

and different claims, and therefore they should have

been severed, 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 denial of certification of the

mold class precipitated the petition for review by the

plaintiffs who are complaining about the mold, while

the grant of certification to the plaintiffs (a different set

of named plaintiffs) complaining about the stoppage

precipitated Sears’s petition for review.

We have accepted the appeals in order to clarify

the concept of “predominance” in class action litigation.

Rule 23(b)(3) conditions the maintenance of a class

action on a finding by the district court “that the questions of fact or law common to class members

predominate over any questions affecting only individual members.” If there are no common questions

or only common questions, the issue of predominance

is automatically resolved. Any other case requires “weighing” unweighted factors, which is the kind of subjective determination that usually—including the deter-
Nos. 11-8029, 12-8030 3

mination whether to certify a class—is left to the

district court, subject to light appellate review. CE

Design Ltd. v. King Architectural Metals, Inc., 637 F.3d

721, 723 (7th Cir. 2011); Charles Alan Wright, Arthur R.

Miller & Mary K. Kane, 7AA Federal Practice and Procedure § 1785, pp. 370-72 (3d ed. 2005).

The mold claim pertains to all Kenmore-brand frontloading “high efficiency” washing machines manufactured by Whirlpool Corporation and sold by Sears

since 2001. The claim is that because of the low volume

of water used in these machines and the low temperature of the water, compared to the volume and temperature of the water in the traditional top-loading machine,

they don’t clean themselves adequately and as a result

biofilm—a mass of microbes—forms in the machine’s

drum (where the washing occurs) and creates mold,

which emits bad odors. Traditional household cleaners

do not eliminate the biofilm, the mold, or the odors.

Roughly 200,000 of these Kenmore-brand machines are

sold each year and there have been many thousands

of complaints of bad odors by the owners.

Sears contends that Whirlpool (which remember is the

actual manufacturer of the washing machines, not Sears)

made a number of design modifications as a result

of which different models are differently defective and

some perhaps not at all, and therefore common questions of fact concerning the mold problem and its consequences do not predominate over individual questions

of fact. The judge accepted this argument; it is the

ground on which she denied the motion to certify the

mold class.
4 Nos. 11-8029, 12-8030

Although Sears contends that during the period covered by the complaint it sold 27 different Kenmorebrand models, Whirlpool made only five design changes

that relate to mold. The basic question in the litigation—were the machines defective in permitting mold

to accumulate and generate noxious odors?—is common

to the entire mold class, although the answer may vary

with the differences in design. The individual questions

are the amount of damages owed particular class members (the owners of the washing machines).

Predominance is a question of efficiency. See Amchem

Products, Inc. v. Windsor, 521 U.S. 591, 615-16 (1997);

Committee Notes to 1966 Amendment to Fed. R. Civ.

P. 23; Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999,

1005 n. 12 (11th Cir. 1997); William B. Rubenstein, 2

Newberg on Class Actions § 4:49 (5th ed. 2012). Is it more

efficient, in terms both of economy of judicial resources

and of the expense of litigation to the parties, to

decide some issues on a class basis or all issues in

separate trials? A class action is the more efficient procedure for determining liability and damages in a case

such as this involving a defect that may have imposed

costs on tens of thousands of consumers, yet not a cost

to any one of them large enough to justify the expense

of an individual suit. If necessary, a determination of

liability could be followed by individual hearings to

determine the damages sustained by each class member

(probably capped at the cost of replacing a defective

washing machine—there doesn’t seem to be any claim

that the odors caused an illness that might support a

claim for products liability as distinct from one for
Nos. 11-8029, 12-8030 5

breach of warranty). But probably the parties would

agree on a schedule of damages based on the cost of

fixing or replacing class members’ mold-contaminated

washing machines. The class action procedure would

be efficient not only in cost, but also in efficacy, if we

are right that the stakes in an individual case would be

too small to justify the expense of suing, in which event

denial of class certification would preclude any relief.

Sears argues that most members of the plaintiff class

did not experience a mold problem. But if so that is an

argument not for refusing to certify the class but for

certifying it and then entering a judgment that will

largely exonerate Sears—a course it should welcome, as

all class members who did not opt out of the class

action would be bound by the judgment.

In two states (see Hicks v. Kaufman & Broad Home Corp.,

89 Cal. App. 4th 908, 920-23 (2001); Schiffner v. Motorola,

Inc., 697 N.E.2d 868, 874-76 (Ill. App. 1998)), or possibly

three (see DaimlerChrysler Corp. v. Inman, 252 S.W.3d

299, 304-07 (Tex. 2008)), of the six states in which

members of the class reside, a defective product can be

the subject of a successful suit for breach of warranty

even if the defect has not yet caused any harm. If, as

appears to be the case, the defect in a Kenmore-brand

washing machine can precipitate a mold problem at any

time, the defect is an expected harm, just as having

symptomless high blood pressure creates harm in the

form of an abnormally high risk of stroke. A person who

feels fine, despite having high blood pressure, and will

continue feeling fine until he has a stroke or heart
6 Nos. 11-8029, 12-8030

attack, would expect compensation for an unlawful act

that had caused his high blood pressure even though

he has yet to suffer the consequences. Every class

member who claims an odor problem will have to

prove odor in order to obtain damages, but class

members who have not yet encountered odor can still

obtain damages for breach of warranty, where state

law allows such relief—relief for an expected rather

than for only a realized harm from a product defect

covered by an express or implied warranty.

Sears does not contend that any of Whirlpool’s design

changes eliminated the odor problem but only that

they reduced its incidence or gravity. The number of

buyers of each design of the Kenmore-brand machine

who encountered mold would have been large even if

those who bought later in the product cycle were less

likely to encounter the problem. Should it turn out as

the litigation progresses that there are large differences

in the mold defect among the five differently designed

washing machines, the judge may wish to create subclasses; but that possibility is not an obstacle to certification of a single mold class at this juncture.

Sears argues inconsequently that it did not know about

the defects in all the different models. But liability

for breach of warranty is strict. Sears may be able by

means of a suit for contribution or indemnity to shift

the cost of any damages it incurs in the present case

to Whirlpool, but that is not a defense to liability.

Sears also makes arguments that were not considered

by the district court, such as that mold problems may
Nos. 11-8029, 12-8030 7

reflect how the owner of a washing machine uses it. That

would be a defense of mishandling to the charge of

breach of warranty. Sears offers no details.

The Sixth Circuit recently upheld the certification of a

single mold class in a case, identical to this one (except

that it did not involve the other claim in this case, the

control unit claim), against Whirlpool. In re Whirlpool

Corp. Front-Loading Washer Products Liability Litigation,

678 F.3d 409 (6th Cir. 2012). For us to uphold the

district court’s refusal to certify such a class would

be to create an intercircuit conflict—and a gratuitous

one, because, as should be apparent from the preceding

discussion, we agree with the Sixth Circuit’s decision.

We turn to Sears’s appeal from the certification of a

class of buyers of Kenmore-brand washing machines

who incurred a harm because of the defective control

unit. Each washing machine has a computer device

that gives instructions to the machine’s moving parts.

This “central control unit” consists of circuit boards that

are soldered together. In 2004 a company called Bitron

that supplied the central control units in the Kenmorebrand washing machines altered its manufacturing

process in a way that inadvertently damaged the layer of

solder, causing some of the control units mistakenly

to “believe” that a serious error had occurred and therefore to order the machine to shut down even though

nothing was the matter with it. Sears is alleged

to have known about the problem but to have charged

each owner of a defective machine hundreds of dollars

to repair the central control unit. The defect was cor-
8 Nos. 11-8029, 12-8030

rected in 2005 but Sears continued to ship machines containing the earlier-manufactured, defective control units.

The principal issue is whether the control unit was

indeed defective. The only individual issues—issues

found in virtually every class action in which damages

are sought—concern the amount of harm to particular

class members. It is more efficient for the question

whether the washing machines were defective—the

question common to all class members—to be resolved

in a single proceeding than for it to be litigated

separately in hundreds of different trials, though, were

that approach taken, at some point principles of res

judicata or collateral estoppel would resolve the common issue for the remaining cases.

Again the district court will want to consider whether

to create different subclasses of the control unit class

for the different states. That should depend on whether

there are big enough differences among the relevant laws

of those states to make it impossible to draft a single,

coherent set of jury instructions should the case ever

go to trial before a jury.

To summarize, the denial of class certification regarding the mold claim is reversed and the grant of class

certification regarding the control unit claim is affirmed.

11-13-12