In the

United States Court of Appeals

For the Seventh Circuit

No. 09-8025

PELLA CORPORATION AND PELLA

WINDOWS AND DOORS, INC.,

Petitioners,

v.

LEONARD E. SALTZMAN, KENT 

EUBANK, THOMAS RIVA, AND WILLIAM 

AND NANCY EHORN, INDIVIDUALLY 

AND ON BEHALF OF ALL OTHERS 

SIMILARLY SITUATED, 

Respondents.

Petition for Leave to Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 1:06-cv-04481—James B. Zagel, Judge.

SUBMITTED MARCH 12, 2010—DECIDED MAY 20, 2010

Before POSNER, WILLIAMS and TINDER, Circuit Judges.

PER CURIAM. Pella Corporation manufactures windows

for homes and sells them through its subsidiary, Pella

Windows and Doors, Inc. (collectively “Pella”). Over
2 No. 09-8025

the last 18 years, Pella has sold more than six million

aluminum-clad wood “ProLine” casement windows

nationwide. Plaintiffs, owners of structures containing

the windows in question, allege that the windows

contain a design defect that permits water to seep behind

the aluminum cladding and causes the wood to rot at

an accelerated rate. In response to the number of

windows needing replacement, Pella created the “Pella

ProLine Customer Service Enhancement Program”

to compensate affected customers. According to

Plaintiffs, Pella attempted to modify its warranty

through the program but never informed the end

consumers of the program’s existence or of the defect.

Plaintiffs brought suit against Pella, alleging that it

committed consumer fraud by not publicly declaring

the role that the purported design defect plays in allowing

rot. After the district court certified two classes of

plaintiffs, Pella sought permission to appeal the

certification pursuant to Federal Rule of Civil Procedure

23(f). We grant Pella’s Rule 23(f) petition for permission

to appeal and affirm the district court’s decision

certifying the classes.

I. BACKGROUND

The district court certified two classes of consumers

in this action. First, it certified a nationwide class under

Federal Rule of Civil Procedure 23(b)(2), consisting of

all class members who own structures containing

Pella ProLine aluminum-clad casement windows

manufactured from 1991 to the present, whose windows
No. 09-8025 3

have not yet manifested the alleged defect or whose

windows have some wood rot but have not yet been

replaced. The district court found the class met the

criteria of Rule 23(b)(2) because Pella “has acted or

refused to act on grounds that apply generally to the

class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as

a whole.” Fed. R. Civ. P. 23(b)(2). If successful, these class

members would be entitled to six declarations

that together essentially declare that all ProLine windows

have a defect which results in premature rotting and

this defect requires disclosure; that Pella modified its

warranty without notice by creating the enhancement

program; that Pella must notify owners of the defect;

that the ten-year limitation in the original warranty is

removed; that Pella will reassess all prior warranty

claims related to wood rot; and that Pella, upon a class

member’s request, will pay the cost of inspection

to determine whether the wood rot is manifest, with any

coverage disputes adjudicated by a Special Master.

This class adjudication process would be followed by

an individual claims process in which class members

may file a claim with Pella for service “[i]f and when

their windows manifest wood rot due to the alleged

defect.” The district court explained that absent class

members also may bring individual suits for money

damages.

The second group of certified classes is much

narrower and consists of only those who have had a

manifest defect and whose windows already have been

replaced. The court certified six statewide liability classes
4 No. 09-8025

under Federal Rule of Civil Procedure 23(b)(3) in

California, Florida, Illinois, Michigan, New Jersey, and

New York, on the theory that Pella violated state

consumer fraud laws by failing to disclose the defect.

Certification under Rule 23(b)(3) requires that “the

questions of law or fact common to the members of the

class predominate over any questions affecting only

individual members, and that a class action is superior

to other available methods for the fair and efficient

adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3).

The district court explicitly declined to certify issues

related to causation, damages, and statute of limitations.

Pella seeks interlocutory review of these class

certifications pursuant to Federal Rule of Civil Procedure

23(f), arguing, inter alia, that consumer fraud cases as

a general matter are not amenable to class treatment,

due to problems with causation, reliance, and calculating

damages. We grant the petition in order to address

the contention that consumer fraud claims are

inappropriate for class treatment. See Blair v. Equifax

Check Servs., Inc., 181 F.3d 832, 835 (7th Cir. 1999)

(acceptance of an appeal is appropriate to “facilitate the

development of the law” governing class actions). The

parties’ arguments are clearly set forth in Pella’s Rule

23(f) petition and respondents’ opposition, and no

further briefing or argument is necessary. We affirm

the district court’s certification of the two classes.

II. ANALYSIS

 While consumer fraud class actions present problems

that courts must carefully consider before granting
No. 09-8025 5

certification, there is not and should not be a rule that

they never can be certified. Pella relies on various

decisions from this circuit reversing the grant of class

certification in consumer fraud actions to draw the

broad conclusion that consumer fraud cases are

inappropriate for class treatment as a general matter.

But those cases did not opine that class certification was

never appropriate in consumer fraud cases, only that it

was inappropriate in the circumstances before it. See,

e.g, Thorogood v. Sears, Roebuck and Co., 547 F.3d 742,

748 (7th Cir. 2008) (no common issues of law because

there did not appear to be a single understanding of the

significance of labeling or advertising of the allegedly

deceptive statements); Oshana v. Coca-Cola Co., 472 F.3d

506, 514 (7th Cir. 2006) (class certification inappropriate

because the proposed class representative’s claims were

not typical of putative class); In re Bridgestone/Firestone, Inc.,

288 F.3d 1012, 1018-19 (7th Cir. 2002) (tire-defect class

action unmanageable given numerous different designs

of allegedly defective tires and varying recalls).

In Thorogood, the court noted that there are times

when class certification is “a sensible and legally

permissible alternative to remitting all the buyers to

individual suits each of which would cost orders of

magnitude more to litigate than the claims would be worth

to the plaintiffs.” 547 F.3d at 748. We reassert that

proposition here and hold that the district court properly

weighed the facts before it and exercised its discretion

to conclude that the common predominant issue of

whether the windows suffer from a single, inherent

design defect leading to wood rot is the essence of the

dispute and is better resolved by class treatment.
6 No. 09-8025

The district court reasonably determined that the

individual issues that necessarily arise in a consumer

fraud action would not prevent class treatment of the

narrow liability issues here. 

Class treatment of consumer fraud cases can certainly

present difficulties, and courts should consider these

concerns before deciding to grant class certification, as

the district court did below. One concern is the risk of

error in having complex issues that have enormous

consequences decided by one trier of fact rather than

letting a consensus emerge from multiple trials. Mejdrech

v. Met-Coil Sys. Corp., 319 F.3d 910, 912 (7th Cir. 2003);

see also Thorogood, 547 F.3d at 745. This is not a case

where the issues are so complex, and Pella does not

claim that the consequences are so high, that a

decentralized process of multiple trials is necessary for

an accurate evaluation of the claims. The district court

held that the commonality requirement of Rule

23(a)(2) and the predominance requirement of Rule

23(b)(3) are both satisfied because the central questions

in the litigation are the same for all class

members—whether the ProLine windows suffered from

an inherent defect when they left the factory, whether and

when Pella knew of this defect, the scope of Pella’s

warranty, and the nature of the ProLine Customer

Enhancement Program and whether it amended the

warranty.

In contrast to Thorogood where there were no

common issues of law or fact and the court questioned

whether anyone besides the plaintiff shared the same

concerns with the product, here there is an economy to
No. 09-8025 7

class treatment of the question whether the ProLine

windows suffer from a basic design defect, the

resolution of which has the potential to eliminate the

need for multiple, potentially expensive expert testimony

and proof that would cost considerably more to

litigate than the claims would be worth to the plaintiffs.

See Thorogood, 547 F.3d at 748. According to class counsel,

they already have been contacted by over 350 consumers

who have experienced the same wood rot problems

set forth in the complaint. Where there are common issues

and the accuracy of the resolution of those issues

“is unlikely to be enhanced by repeated proceedings, then

it makes good sense, especially when the class is large,

to resolve those issues in one fell swoop while leaving

the remaining, claimant-specific issues to individual

follow-on proceedings.” Mejdrech, 319 F.3d at 911. 

Another concern in consumer fraud cases is the issue

of proximate causation. Pella argues that too many

individual variances between class members exist,

because wood can rot for many reasons other than window

design and is affected by specific conditions such as

improper installation. Proximate cause, however, is

necessarily an individual issue and the need for

individual proof alone does not necessarily preclude

class certification. 5 William B. Rubenstein, Alba Conte and

Herbert B. Newberg, Newberg on Class Actions § 17.28,

pp. 413-14 (4th ed. 2002). A district court has the discretion

to split a case by certifying a class for some issues, but

not others, or by certifying a class for liability alone

where damages or causation may require individualized

assessments. See, e.g., Arreola v. Godinez, 546 F.3d 788, 799-

800 (7th Cir. 2008); Carnegie v. Household Int’l, Inc., 376 F.3d
8 No. 09-8025

656, 661 (7th Cir. 2004). Under the district court’s plan,

class members still must prove individual issues of

causation and damages. While it is almost inevitable

that a class will include some people who have not been

injured by the defendant’s conduct because at the outset

of the case many members may be unknown, or the facts

bearing on their claims may be unknown, this possibility

does not preclude class certification. Kohen v. Pacific

Inv. Management Co. LLC, 571 F.3d 672, 677 (7th Cir. 2009),

citing 1 Alba Conte & Herbert Newberg, Newberg on Class

Actions § 2:4, pp. 73-75 (4th ed. 2002). The narrow way

in which the district court defined the classes here

eliminates concern that the definitions are overbroad or

include a great many people who have suffered no injury.

Pella also argues that certification under Rule 23(b)(2)

was inappropriate because this is really a case about

money, and the class does not seek final injunctive relief

as the rule requires, but only as a stop on the way to

damages which individuals must then pursue. Rather

than simplifying the litigation, Pella objects that the

proposed declarations considered by the district court

as injunctive relief are really illusory and will multiply,

and even require, individual litigation. However, Pella

mischaracterizes the effect of the six declarations

contemplated by the district court. It is not necessarily

the case that individual litigation would be required.

The court split the purchasers of windows into two groups:

those who have replaced their windows, and those

who have not. Those who have replaced their windows are

properly members of the (b)(3) class because they

require the award of damages to make them whole.

Those who have not replaced their windows but might in
No. 09-8025 9

the future because of the purported design flaw are

properly members of a (b)(2) class. Such purchasers would

want declarations that there is an inherent design flaw,

that the warranty extends to them and specific

performance of the warranty to replace the windows

when they manifest the defect, or final equitable relief.

Cf. Allen v. Int’l Truck & Engine Corp., 358 F.3d 469, 471

(7th Cir. 2004) (suggesting class treatment of the equitable

relief to be followed by individual damage proceedings

where the equitable relief sought is the same for all

class members). 

If the district court finds in favor of the class and

enters all six declarations, the cumulative effect will be an

entitlement to have their windows replaced, and the (b)(2)

class will benefit uniformly from the declarations.

The contemplated process in which members may file a

claim with Pella for service does not appear to be any

different than the process by which an owner would file

a claim with Pella under a warranty. Having to adjudicate

coverage issues with a Special Master is necessary only

if there is a dispute; it would not be required for every

class member as Pella suggests. Morever, the district court

specifically provided that “[t]here is no side-by-side

recovery here.” It explained that class members whose

defect has not yet manifested are not included in the

damages class; only once the windows experience any

manifest defect, if ever, will the class members be able

to submit a claim to Pella for repair.

Finally, Pella suggests that the manner in which the

district court proposes to proceed will violate its

Seventh Amendment rights because facts found by the
10 No. 09-8025

class jury would necessarily be reviewed by the individual

juries. Pella argues that the first jury must decide

how much the design of the windows, as opposed to

other factors, contributed to rot and that the individual

juries must then consider the same issue later, but

proximate cause is an individual issue and will not be

addressed by the class jury. The class jury will be asked

to decide only if there was an inherent design defect

present in the windows when they left the factory,

whether Pella had a duty to disclose the defect, and

whether Pella attempted to modify its warranty. Issues

of causation and damages issues, such as whether that

defect caused the damage to a particular window and

how much the design contributed to the rot, will

be handled individually. “Thus a class proceeding for

equitable relief vindicates the seventh amendment as

fully as do individual trials, is no more complex than

individual trials, yet produces benefits compared with

the one-person-at-a-time paradigm.” Allen, 358 F.3d at 472.

Pella raises other minor concerns that relate primarily

to the manageability of the class, but none of these

demonstrate that the district court abused its discretion.

Under Rule 23, district courts are permitted to “devise

imaginative solutions to problems created by the

presence in a class action litigation of individual

damages issues.” Carnegie, 376 F.3d at 661; see also Lemon

v. Int’l Union of Oper. Engineers, 216 F.3d 577, 582 (7th Cir.

2000). In making the decision to certify the classes, the

district judge had before him hundreds of pages of

legal briefing, as well as hundreds of pages of documents,

deposition transcripts, and expert reports. Plaintiffs

point out that they submitted a sample trial plan with a
No. 09-8025 11

comparative legal analysis of each subclass state,

suggestions of how the case could be tried in phases, and a

statement of class structure and remedies. Even the

certification of the six state subclasses demonstrates that

the district court carefully considered how the case would

proceed, explicitly finding that the consumer protection

acts of these six states have nearly identical elements

and declining to certify a seventh state subclass that would

have required a subjective analysis.

III. CONCLUSION

The district court’s decision to certify the two classes

in this case did not contradict circuit precedent. While

consumer fraud class actions present challenges that

a district court must carefully consider, there are

circumstances where certification is appropriate. We

conclude that this case is one of those circumstances. We

GRANT Pella’s Rule 23(f) petition for permission to

appeal and AFFIRM the decision of the district court

certifying the classes.

5-20-10