United States District Court, D. New Jersey
CHARLENE DZIELAK, SHELLEY BAKER, FRANCIS ANGELONE, BRIAN MAXWELL, JEFFERY REID, KARI PARSONS, CHARLES BEYER, JONATHAN COHEN, JENNIFER SCHRAMM, and ASPASIA CHRISTY on behalf of themselves and all others similarly situated, Plaintiffs,
WHIRLPOOL CORPORATION, SEARS HOLDINGS CORPORATION, THE HOME DEPOT, INC., FRY'S ELECTRONICS, INC., APPLIANCE RECYCLING CENTERS OF AMERICA, INC., and LOWE'S HOME CENTER, LLC, Defendants.
MCNULTY UNITED STATES DISTRICT JUDGE.
motion for class certification arises from the sale of Maytag
washing machines that bore ENERGY STAR® ("Energy
Star") labels signifying that they met federal standards
of water and electrical efficiency. Defendants had already
been selling Maytag washing machines with the Energy Star
label when, in May 2012, the U.S. Department of Energy
determined that those particular models did not actually meet
the Energy Star efficiency standards. Plaintiffs seek to
represent a putative class whose members allegedly suffered
uniform harm because they all purchased washers improperly
labeled with the Energy Star logo. They claim two harms: (1)
that the price of the washers was inflated because consumers
pay a premium for Energy Star qualified machines and (2) that
each purchaser "paid more money in additional water and
energy costs to operate his or her Mislabeled Washing
machine" than he or she would have if the washers had
actually met the Energy Star standards. (2AC ¶
opinion addresses plaintiffs' renewed motion for class
with my earlier opinions (MTD Op.; Daubert Op.;
Preemption Op.) is assumed. I canvass here only the facts and
procedural history pertinent to my decision on class
named plaintiffs, purchasers of Maytag washing machines, are
Charlene Dzielak, Francis Angelone, Shelley Baker, Brian
Maxwell, Jeffery Reid, Kari Parsons, Charles Beyer, Jonathan
Cohen, Jennifer Schramm, and Apasia Christy. (MTD Op. 1; 2AC
¶¶ 8-18). Defendant Whirlpool Corporation
("Whirlpool") manufactured the relevant washers.
(MTD Op. 1). The remaining defendants are retailers from whom
the plaintiffs purchased the machines: Lowe's Home
Center, LLC ("Lowe's"), Sears Holding
Corporation ("Sears"}, The Home Depot, Inc.
("Home Depot"), Fry's Electronics, Inc.
("Fry's"), and Appliance Recycling Centers of
America, Inc. ("ARCA"). (Id. at 1-2; 2AC
Maytag washing machine at issue in this case bore an Energy
Star label at the time of purchase. [Id. at 2).
Energy Star machines must use approximately 37% less energy
and 50% less water than standard models. (Id. at 4).
Thereafter, however, the Department of Energy determined that
the washers at issue did not comply with Energy Star
requirements, and the EPA then disqualified them from the
program. (Id. at 2).
putative class comprises seven subclasses of purchasers in
all states where named plaintiffs bought washers-New Jersey,
California, Florida, Ohio, Indiana, Texas, and Virginia. (PL
Br. 4); (PL Reply to Whirlpool 13). Plaintiffs allege two
harms: (1) a price premium they attribute to the Energy Star
label and (2) higher water and energy costs than they would
have paid had the washers actually met the Energy Star
standards. (Weir Decl. ¶¶ 14-53).
claims that remain at this stage are as follows:
Count II: Breach of Express Warranty
Count III: Breach of Implied Warranty of Merchantability (for
NJ, IN, TX, and VA plaintiffs only)
Count IV: Unjust Enrichment (asserted against retailers only;
not against Whirlpool)
Count V: New Jersey Consumer Fraud Act, N.J. Stat. Ann.
§ 56:8-1, et seq. ("NJCFA")
Count VI: New Jersey Truth-in-Consumer Contract, Warranty,
and Notice Act, N.J. Stat. Ann. § 56:12-14, et
Count VII: California's Consumer Legal Remedies Act, Cal.
Civil Code § 1750, et seq. ("CLRA")
Count VIII: California's Unfair Competition Law, Cal.
Bus. & Prof. Code § 17200, et seq.
Count IX: California's False Advertising Law, Cal. Bus.
& Prof. Code § 17500, et seq.
Count XI: Florida Deceptive and Unfair Trade Practices Act,
Fla. Stat. § 501.201, et seq.
Count XII: Ohio Consumer Sales Practices Act, Ohio Rev. Code
Ann. § 1345.01, et seq. ("OCSPA")
Count XIII: Indiana Deceptive Consumer Sales Act, Ind. Code
Ann. § 24- 5-0.5-1, et seq. ("IDCSA")
Count XIV: Texas Deceptive Trade Practices Act, Tex. Bus.
& Com. Code § 17.41, et seq.
(2AC); (MTD Op.). Plaintiffs now move for class certification
under Rule 23(b)(3). Defendants argue that plaintiffs have
not satisfied the requirements for class certification.
Court has jurisdiction over this motion for class
certification under the Class Action Fairness Act of 2005
("CAFA"), 28 U.S.C. §§ 1332(d), 1453,
1711-15. CAFA confers jurisdiction on federal courts over
certain class actions in which die matter in controversy
exceeds $5 million, exclusive of interest and costs, and
minimal diversity is present, i.e., any
defendant's citizenship is diverse from that of any
plaintiff. Id. § 1332(d)(2).
class action is "an exception to the usual rule that
litigation is usually conducted by and on behalf of the
individual named parties only." Comcast Corp. v.
Behrend, 569 U.S. 27, 33 (2013) (citing Califano v.
Yamaski, 442 U.S. 682, 700-01 (1979)). Accordingly, a
plaintiff bears the burden of affirmatively demonstrating by
a preponderance of evidence that her putative class satisfies
the class-certification requirements in Federal Rule of Civil
Procedure 23. Byrd v. Aaron's Inc., 784 F.3d
154, 163 (3d Cir. 2015). Importantly, Rule 23 "does not
set forth a mere pleading standard." Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). Rather,
die plaintiff must prove that the Rule 23(a) requirements are
met. Comcast, 569 U.S. at 33.
to qualify for class certification, a party must demonstrate
that the putative class meets die four requirements set forth
in Rule 23(a):
(1) die class is so numerous that joinder of all members is
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of die representative parties are
typical of die claims or defenses of die class; and
(4) the representative parties will fairly and adequately
protect die interests of die class.
Fed. R. Civ. P. 23(a); see Dukes, 564 U.S. at 345.
The Rule 23(a) factors are referred to as numerosity,
commonality, typicality, and adequacy of representation.
Supreme Court has emphasized that it "may be necessary
for the court to probe behind the pleadings before coming to
rest on the certification question" and that
certification is proper only if "the trial court is
satisfied, after a rigorous analysis" that Rule 23(a)
's prerequisites have been met. Comcast, 569
U.S. at 33 (quoting Gen. Tel. Co. of Southwest v.
Falcon, 457 U.S. 147, 160-61 (1982)). Such an analysis
will "entail some overlap with the merits of the
plaintiffs underlying claim." Dukes, 564 U.S.
a plaintiff must satisfy at least one of the three
requirements listed in Rule 23(b). Id. at 345-46. In
this action, plaintiffs seek to certify the class under Rule
23(b)(3), which permits certification when (1) "the
questions of law or fact common to class members predominate
over any questions affecting only individual members, "
and (2) "a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy." Fed.R.Civ.P. 23(b)(3). The Rule 23(b)(3)
analysis of predominance and superiority is more demanding
than the Rule 23(a) analysis. Comcast, 569 U.S. at
34 (citing Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 623-24 (1997)). In particular, courts have a duty to
take a close look at whether common questions predominate
over individual ones. Dukes, 564 U.S. at 362.
Third Circuit, Rule 23(b)(3) certification also involves an
independent ascertainability inquiry, which requires a
plaintiff to show that (1) the class is "defined with
reference to objective criteria" and (2) there is
"a reliable and administratively feasible mechanism for
determining whether putative class members fall within the
class definition." Byrd, 784 F.3d at 163
(citing Hayes v. Wal-Mart Stores, Inc., 725 F.3d
349, 355 (3d Cir. 2013)). The parties do not seem to dispute
this issue, however.
RULE 23(A) REQUIREMENTS
stated above, a plaintiff seeking to certify a class first
must satisfy Rule 23(a)'s four requirements: numerosity,
commonality, typicality, and adequacy of representation. All
must be proven by a preponderance of the evidence.
Hydrogen Peroxide, 552 F.3d 305, 307 (3d Cir. 2008).
Defendants claim that plaintiffs have not met their burden
regarding commonality, typicality, and adequacy. (Def. Br. 11
23(a)(1) requires a finding that "the class is so
numerous that joinder of all members is impracticable."
That requirement promotes judicial economy by avoiding
onerous (anti-)joinder rules and eliminating the need to
adjudicate numerous similar actions separately. See
Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 594-95 (3d
Cir. 2012). Furthermore, it enhances access to judicial
relief, particularly when individual claims would be
uneconomical to litigate individually, and, where joinder can
be easily accomplished, prevents putative class
representatives and counsel from denying members of a small
class from adjudicating their claims individually.
general rule, a potential class with as few as forty members
may meet the numerosity requirement. Id. at 595
(citing Stewart v. Abraham, 275 F.3d 220, 226-27 (3d
Cir. 2001)). Nonetheless, Rule 23(a)(1) "requires
examination of the specific facts of each case."
Gen. Tel. Co. of Northwest v. EEOC, 446 U.S. 318,
330 (1980). Additionally, numerosity is not inferred for
state-specific subclasses simply because there is a
nationwide or larger class; there needs to be state-specific
evidence for each subclass. Marcus, 687 F.3d at 585.
has satisfied the numerosity requirement by providing
documentation that approximately 174, 974 units of allegedly
mislabeled washers were sold in the seven states during the
class period. (Weir Decl. ¶ 49); (Bursor Decl. Ex. 18).
Plaintiffs provide data for each individual state, which
allows me to determine that the numerosity requirement is met
for each state- specific subclass as well. Therefore,
plaintiffs have proven Rule 23(a) *s numerosity requirement.
(Bursor Decl. Exs. 17, 18).
23(a)(2) requires a showing of "questions of law or fact
common to the class." "Commonality requires the
plaintiff to demonstrate that the class members "have
suffered the same injury.'" Dukes, 564 U.S.
at 349-50 (citing Falcon, 457 U.S. at 157). The
claims must rest upon a "common contention" that is
capable of classwide resolution:
What matters to class certification ... is not the raising of
common "questions"-even in droves-but, rather the
capacity of a classwide proceeding to generate common
answers apt to drive the resolution of the
litigation. Dissimilarities within the proposed class are
what have the potential to impede the generation of common
Id. at 350 (citing Richard A. Nagareda, Class
Certification in the Age of Aggregate Proof 84 N.Y.U. L.
Rev. 97, 132 (2009)).
the commonality requirement does not require that class
members share identical claims. In re Prudential Ins. Co.
Am. Sales Practice Litig. Agent Actions, 148 F.3d 283,
310 (3d Cir. 1998). "[F]actual differences among the
claims of the putative class members do not defeat
certification." Id. (citing Baby Neal v.
Casey, 43 F.3d 48, 56 (3d Cir. 1994)). Commonality is
addressed at a fairly high level of generality and is less
stringent than the Rule 23(b)(3) predominance requirement.
See Amchem Prods, Inc., 521 U.S. at 609.
required is that the named plaintiffs share at least one
question of fact or law with the prospective class. See
Rodriguez v. Nat'l City Bank, 726 F.3d 372, 382 (3d
Cir. 2013). In fact, "the focus of the commonality
inquiry is not on the strength of each plaintiffs claim, but
instead is 'on whether the defendant's conduct was
common as to all of the class members.™ Id.
(citing In re Prudential, 148 F.3d at
case, there are common questions whose resolution would drive
the resolution of this litigation. Such common questions
include whether the Energy Star mark and advertising material
were material to class members' decisions to purchase the
machines; whether the class members paid a price premium
because of the Energy Star label; and whether class members
paid more in energy and water bills because the washers were
mislabeled. Therefore, this putative class satisfies Rule
23(a)'s commonality requirement.
Rule 23(a)(3) test for typicality requires that the claims or
defenses of the named plaintiffs are "typical of the
claims or defenses of the class." Fed.R.Civ.P. 23(a)(3).
"The typicality requirement is designed to align the
interests of the class and the class representatives so that
the latter will work to benefit the entire class through the
pursuit of their own goals." In re Prudential,
148 F.3d at 311; see also Rodriguez, 726 F.3d at 376
n.4 (citing Eisenberg v. Gagnon, 766 F.2d 770, 786
(3d Cir. 1985)). Typicality does not require that the
putative class members all share identical claims. In re
Warfarin Sodium Antitrust Litig., 391 F.3d 516, 531-32
(3d Cir. 2004). Rather, the typicality requirement, which
tends to overlap with the adequacy and commonality
determinations, seeks to assure that absent class members
will be adequately represented. Rodriguez, 726 F.3d
at 376 n.4; Eisenberg, 766 F.2d at 786.
case, the claims of the representative plaintiffs all arise
from the same allegedly wrongful conduct-the alleged
misrepresentation that the washers were Energy Star
qualified. The claims arise under the same general
legal theories. Overall, while there are some factual
differences between the named plaintiffs' claims and
those of other class members, the named plaintiffs have
claims that are sufficiently typical of the putative class.
Therefore, I find that the putative class satisfies Rule
Adequacy of Representation
23(a)(4) requires that the "representative parties will
fairly and adequately protect the interests of the
class." The adequacy inquiry has two components designed
to ensure that absent class members' interests are fully
pursued: (1) whether counsel is qualified to represent the
class and (2) whether there are conflicts of interest between
named parties and the putative class they seek to represent.
In re Warfarin, 391 F.3d 516 (citing In re
Prudential, 148 F.3dat313).
the putative class counsel includes qualified and experienced
class action attorneys who have been involved in similar
litigation around the country. Putative class counsel have
pursued this litigation vigorously for several years. Second,
there are no apparent conflicts of interest between the named
plaintiffs and the classes they seek to represent. The named
plaintiffs bought the same washer models as the other class
members, and they claim the same relief that the putative
class would receive. As a result, I find that the class
counsel and named plaintiffs will fairly and adequately
represent the interests of the class.
I find that the putative class satisfies the four threshold
Rule 23(a) class-certification requirements of numerosity,
commonality, typicality, and adequacy of representation-at
least against Whirlpool. (More about the retailers later.) I
will now evaluate whether plaintiffs satisfy the requirements
of Rule 23(b)(3).
RULE 23(B)(3) REQUIREMENTS
addition to satisfying the four Rule 23(a) requirements, a
plaintiff seeking class certification must satisfy at least
one of the three requirements listed in Rule 23(b). In this
action, plaintiffs seek Rule 23(b)(3) certification, which
requires (A) "that the questions of law or fact common
to class members predominate over any questions affecting
only individual members, " and (B) that "a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy." Fed.R.Civ.P.
23(b)(3). Although the requirements are distinct,
many considerations are relevant to both, so some overlap in
the discussion is unavoidable.
certified as a Rule 23(b)(3) class action, a putative class
must demonstrate that "the questions of law or fact
common to class members predominate over any questions
affecting only individual members." Fed.R.Civ.P.
23(b)(3). The putative class bears the burden of
demonstrating predominance. Comcast, 569 U.S. at
33-34. "If anything, Rule 23(b)(3)'s predominance
criterion is even more demanding than Rule 23(a)."
Comcast, 569 U.S. at 34 (citing Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)). Since
Rule 23(b)(3) is an "adventuresome innovation, "
designed for situations in which "class-action treatment
is not clearly called for, " courts have a duly to take
a "close look" at whether common questions
predominate over individual ones. Id. (citing
Dukes, 564 U.S. at 362).
predominance analysis may overlap with or resemble a merits
inquiry. Comcast, 569 U.S. at 33-34; Dukes,
564 U.S. at 351. "The predominance inquiry is especially
dependent upon the merits of a plaintiffs claim, since the
nature of the evidence that will suffice to resolve a
question determines whether the question is common or
individual." In re Constar Int'l Inc. Sec.
Litig.,585 F.3d 774, 780 (3d Cir. 2009) (quotation