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Dzielak v. Whirlpool Corp.

United States District Court, D. New Jersey

December 5, 2019



          KEVIN McNULTY. U.S.D.J.

         Now before the Court in this class action are two motions for summary judgment: one filed by defendants Whirlpool Corporation, Lowe's Home Centers, LLC, Sears Holding Corporation, and Fry's Electronics, Inc. (DE 309); and one filed by defendant The Home Depot, Inc. (DE 315).[1] For the reasons set forth below, the motions are GRANTED. Also before the Court is defendant Whirlpool Corporation's motion to decertify classes (DE 312), which is DENIED as moot.

         The named plaintiffs, purchasers of Maytag washing machines, are Charlene Dzielak, Shelley Baker, Francis Angelone, Brian Maxwell, Jeffrey McLenna, Jeffrey Reid, Kari Parsons, Charles Beyer, Jonathan Cohen, Jennifer Schramm, and Aspasia Christy.

         The first named defendant is the manufacturer of Maytag washing machines, Whirlpool Corporation ("Whirlpool").[2] The remaining defendants are the retailers from whom the plaintiffs purchased the Maytag washers: Lowe's Home Center ("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").[3]

         The Department of Energy ("DOE") Energy Star program authorizes manufacturers to affix an Energy Star label signifying that an appliance meets certain standards of energy efficiency. Each Maytag washing machine at issue in this case bore an Energy Star label at the time of purchase. Thereafter, however, the DOE determined that Maytag Centennial washing machine model No. C6-1 did not comply with Energy Star requirements, and the Environmental Protection Agency ("EPA") disqualified the machine from the Energy Star program. That noncompliance determination and disqualification allegedly apply equally to Maytag Centennial model No. C6-0, C6-1, and C7-0.[4]

         According to Plaintiffs, Energy Star-qualified washing machines cost more than others but save consumers money over time because they consume less energy. Plaintiffs allege that they paid a price premium attributable to the "Mislabeled Washing Machine's supposed energy efficiency and ENERGY STAR® qualification." (DE 29 ¶ 46). But those non-compliant machines, say Plaintiffs, wound up costing more to operate than a truly Energy Star-compliant machine. [Id. ¶ 47).

         The complaint asserts causes of action for breach of express warranty, breach of the implied warranty of merchantability, unjust enrichment, violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, etseq. ("MMWA"), and violations of California, Florida, Indiana, Michigan, New Jersey, Ohio, and Texas consumer fraud statutes.[5] Other purchasers of these washing machines, Plaintiffs say, stand in precisely the same shoes, and Plaintiffs therefore filed their action as a putative class action on behalf of such purchasers.

         Named plaintiffs Maxwell, Christy, and Baker bought their washers in California; Reid in Florida; Beyer in Indiana; McLenna in Michigan; Dzielak and Angelone in New Jersey; Parsons in Ohio; Cohen in Texas; and Schramm in Virginia.

         Plaintiffs moved to certify the class on two theories of harms: (1) that the washers' price was inflated because consumers pay a premium for Energy Star-qualified machines; and (2) that each purchaser incurred greater water and energy costs than he or she would have if the washer had been truly Energy Star-qualified. I certified Plaintiffs' class on the price-premium energy theory only, against Whirlpool only (because it was Whirlpool that was responsible for obtaining Energy Star certification and placing the Energy Star labels on the washers). The class now comprises subclasses of purchasers in those seven states: California, Florida, Indiana, New Jersey, Ohio, Texas, and Virginia.

         I did not certify the class against the retailer defendants, i.e., Lowe's, Sears, The Home Depot, Fry's, and ARCA. Against them, only the individual claims of Dzielak, Angelone, Baker, Maxwell, Reid, Parsons, Beyer, Cohen, Schramm, and Christy are currently pending.

         I. FACTS

         A. Background

         The Energy Policy and Conservation Act of 1975 ("EPCA"), 42 U.S.C. §§ 6291, et seq., together with the National Energy Conservation Policy Act of 1978 ("NECPA") and National Appliance Energy Conservation Act of 1987 ("NAECA"), established an energy conservation program for major household appliances. (DE 78 at 4). These statutes and related regulations led to the Energy Star program, "a voluntary program to identify and promote energy-efficient products and buildings in order to reduce energy consumption, improve energy security, and reduce pollution through voluntary labeling of, or other forms of communication about, products and buildings that meet the highest energy conservation standards." 42 U.S.C. § 6294(a). To qualify for the Energy Star program, a product must meet certain efficiency standards promulgated by the DOE. See C.F.R. §§ 430.1, et seq.

         The Energy Star program was authorized by the Energy Policy and Conservation Act. 42 U.S.C. §§ 6291-6309. (DE 349 ¶ 1). Energy Star is a "voluntary program to identify and promote energy-efficient products." 42 U.S.C. § 6294a(a). (DE 349 ¶ 2). Under the program, the DOE creates Energy Star testing standards, and the EPA enforces them. (DE 349 ¶ 3). Products can earn Energy Star-qualification by meeting the energy efficiency testing standards and, if applicable, the water efficiency testing standards set by the DOE. (DE 349 ¶ 4). Products that earn Energy Star-qualification may display the Energy Star logo. (DE 349 ¶ 5).

         Separately, the Federal Trade Commission ("FTC") requires that all clothes washers display an EnergyGuide label. (DE 349 ¶ 10). Consumers may consult the EnergyGuide label to obtain information about a clothes washer's relative electricity consumption and operational costs compared to other similar models. (DE 349 ¶ 11). For clothes washers, the EnergyGuide label contains information about how many kWh per year the clothes washer will use under certain laboratory conditions, and how the operational costs compare to other, similar models, based on an assumed number of washes per year and using national average energy costs. (DE 349 ¶ 12). Until 2011, there existed no analogous federal labeling requirement that included the absolute and relative water consumption of a clothes washer. (DE 349 ¶ 13).

         In September 2010, the EPA published a presentation entitled "Energy Star© Sales Associate Training - Clothes Washers." (DE 325 ¶ 11). The EPA's presentation also included a slide showing the ENERGY STARK label has an influence on 91% of consumers. (DE 325 ¶ 13). In 2014, the EPA published a book entitled "Energy Star® Products - 20 Years of Helping America Save Energy, Save Money and Protect the Environment." In the book, the EPA stated that "ENERGY STAR is a global symbol for energy efficiency. . . . More than 80 percent of U.S. consumers recognize and understand the label . . . ." (DE 325 ¶14).

Michael Todman, President of Whirlpool North America, explained that ENERGY STAR qualifications essentially say that there are significant savings from a consumer perspective. So against the conventional appliances for electricity, okay, with an appliance that's ENERGY STAR qualified is on average about a 31% savings. ... If you put it into real terms, there is a slight premium that consumers will pay for [Energy Star] appliances. But they're looking for pay back and right now on average the pay[-]back period for [Energy Star] qualified appliances is around three, a little over three years, 3.4 years.

(DE 325¶ 16). Whirlpool's Chairman and Chief Executive Officer, Jeff Fettig explained that

[y]ou can see the conventional appliance, which is what I would call a non-ENERGY STAR appliance. Although the initial purchase price is less, the cost of ownership over a 10-year cycle is higher. The product on the right is a comparable product with energy efficiency ratings. You pay a little bit more on the front end, but you save about 20% over the life of the product.

(DE 325 ¶ 18).

         Plaintiffs now maintain that the Energy Star logo is widely recognized and understood to be a key influencer of appliance purchase decisions. (DE 325 ¶ 19-28). Plaintiffs allege that they all understood the Energy Star label when they purchased their Maytag washing machines. (DE 325 ¶ 19-28). Defendants disagree with this characterization and that any plaintiffs testimony was similar to the others. (DE 325 ¶ 19-28). Instead, Defendants allege that Plaintiffs gave widely disparate interpretations of what they understood the Energy Star logo to mean. (DE 325 ¶ 19-28).

         Tests employed by the DOE to calculate compliance with Energy Star are the same as those used to populate the data on the EnergyGuide label. (DE 349 ¶ 15). In fact, "[a]ll of the metrics used by the EnergyGuide and Energy Star labeling programs are based on the DOE test procedure." (DE 349 ¶ 16). Between 1997 and 2012, those tests were found in 10 CFR 430, Subpart B, Appendix Jl (the "Jl Test Procedure"). (DE 349 ¶ 17).

         B. The Jl Test Procedure

         The Jl Test Procedure is designed to be repeatable between laboratories. (DE 349 ¶ 18). Under the Jl Test Procedure, a clothes washer's energy efficiency is measured by the Modified Energy Factor ("MEF") (DE 349 ¶ 21) and a clothes washer's water efficiency is measured by the Water Factor ("WF") (DE 349 ¶ 22). The MEF is calculated by dividing the capacity of the clothes washer's "clothes container" by the total electricity consumption of the clothes washer. (DE 349 ¶ 23). The WF is calculated by dividing the per-cycle water consumption (in gallons) by the capacity of the clothes washer's "clothes container." (DE 349 ¶ 24).

         Beginning in January 2007, all standard top-loading clothes washers were required to have an MEF of no less than 1.26, and as of January 2011, a WF no greater than 9.5. (DE 349 ¶ 26). Before January 2011, there was no federal minimum WF for clothes washers. (DE 349 ¶ 27). Between 2009 and 2011, all Energy Star top-loading clothes washers were required to have an MEF no less than 1.8, and a WF no greater than 7.5. (DE 349 ¶ 28). To determine the capacity of a clothes washer's "clothes container," the Jl Test Procedure instructed manufacturers to "[m]easure the entire volume which a dry clothes load could occupy within the clothes container during washer operation" by lining the container with a plastic sheet and filling it with "the maximum amount of water" to its "uppermost edge." (DE 349 ¶ 30).

         C. The DOE Instructed Whirlpool How to Measure Its Top-Loading Washers for Energy Star Compliance

         The DOE established the testing procedure waiver regulations found in 10 CFR 430.27 (DE 349 ¶ 45), and on March 20, 2007, Whirlpool sent a "Petition for Waiver & Application for Interim Waiver regarding Measurement of Clothes Container Capacity in Vertical Axis Clothes Washers" ("Petition") to the DOE, (DE 349 ¶ 46). Whirlpool expressed to the DOE that the Jl Test Procedure "does not identify or limit specific components of the clothes washer that form the clothes container." (DE 349 ¶ 49). Whirlpool further explained that "[i]n the absence of more specific language, it is permissible and fully consistent with [the J1 Test Procedure] to construe clothes container to mean the space formed by inter-related components within the clothes washer, such as the top of the tub cover." (DE 349 ¶ 50). Accordingly, Whirlpool requested from the DOE approval "to measure the clothes container capacity to the upper edge of the tub cover in vertical axis clothes washers containing such a component." (DE 349 ¶ 51).

         D. Whirlpool Revised Its Internal Test Procedure for All Top-Loading Clothes Washers in Light of the DOE's Guidance

         Whirlpool revised its internal test procedure. (DE 349 ¶ 64). Accordingly, for all top-loading clothes washers, Whirlpool filled the "clothes container" to the upper edge, or "top," of the tub cover to determine its capacity. (DE 349 ¶ 65). Specifically, the T-396 Test Procedure's instruction were to "[m]easure the entire volume, which a dry clothes load could occupy within the clothes container while the machine is in operation." (DE 349 ¶ 66). In the T-396 Test Procedure, Whirlpool included several figures showing several clothes washers and their various clothes container configurations. (DE 349 ¶ 67). These figures show the wide variability of clothes washers and clothes container configurations. (DE 349 ¶ 68). These differences are functions of engineering, design, and aesthetic choices made during the design and production process. (DE 349 ¶ 69).

         The DOE later designated the "top of the tub cover" as "Fill Level 4." (DE 349 ¶ 71).

         E. The Washers Met Energy Star Requirements When Tested in Accordance with the DOE's May 14, 2007 Guidance

         Before 2009, most Energy Star top-loading clothes washers cost hundreds of dollars more than conventional machines. (DE 349 ¶ 72). Whirlpool designed Maytag Centennial models MVWC6ESWW0 ("C6-0") and MVWC6ESWW1 ("C6-1") (together, the "C6") and MVWC7ESWW0 ("C7-0") with an "Auto Load Sensing" feature. (DE 349 ¶ 74).

         To describe components and features of clothes washers that pertain to energy and water consumption, Whirlpool uses "energy categories." (DE 349 ¶ 75). The C6-0 was designated energy category V9Ua2H5T(3B). (DE 349 ¶ 76). The C6-1 and C7-0 were designated energy category V9Ua2H5W(3B). (DE 349 ¶ 77). To test the C6-0, Whirlpool measured the capacity of the "clothes container" to the "top of the tub cover," or Fill Level 4. (DE 349 ¶ 79). To test the C6-1, Whirlpool measured the capacity of the "clothes container" to the "top of the tub cover," or Fill Level 4. (DE 349 ¶ 83). The C7-0 was not separately tested by Whirlpool because it has the same energy category as the C6-1 and thus should have the same results. (DE 349 ¶ 88).

         Whirlpool started shipping the washers to retailers in April 2009. (DE 349 ¶ 90).

         F. Nearly Every Named Plaintiff-and Most Washer Purchasers-Bought Washers Before the DOE Changed Its Interpretation of "Clothes Container"

         Roughly twenty-three percent of all C6 sales occurred during November 2009, when The Home Depot[6] and Lowe's held Black Friday sales promotions. (DE 349 ¶ 97). During the Black Friday sales, The Home Depot and Lowe's dramatically reduced the price of the C6-below the MSRP. (DE 349 ¶ 98).

         Francis Angelone represents a New Jersey subclass of washer purchasers. (DE 349 ¶ 98). On November 27, 2009, Angelone bought his washer at The Home Depot. (DE 349 ¶ 100). Angelone paid $299.99 for his washer. (DE 349 ¶ 101). Angelone waited until Black Friday to buy his washer and "got a good deal on it." (DE 349 ¶ 102). Angelone discussed the washer's price and the approaching Black Friday sale, but he did not recall discussing the washer's Energy Star status with the salesperson. (DE 315-5 at 31:22-33:1).

         Brian Maxwell represents a California subclass of washer purchasers. (DE 349 ¶ 107). On November 27, 2009, Maxwell bought his washer. (DE 349 ¶ 108). Maxwell paid $399.99 for his washer. (DE 349 ¶ 109).

         Jonathan Cohen represent a Texas subclass of washer purchasers. (DE 349 ¶ 119). On November 28, 2009, Mr. Cohen bought his washer. (DE 349 ¶ 120). Mr. Cohen paid $299.00 for his washer and bought his washer during a Black Friday sale. (DE 349 ¶ 121). Cohen specifically waited for Black Friday to buy his washer, and it "absolutely" affected the timing of when he bought his washer-so he could "get a better deal." (DE 349 ¶ 122). Price was "[definitely a factor" and probably Cohen's first criteria. (DE 349 ¶ 123). Cohen bought his washer because it "was priced right" and "[t]here wouldn't have been enough savings on a non-Energy Star to make it worth it." (DE 349 ¶ 124). Cohen did not speak to a salesperson about the washer before he bought it. (DE 315-9 at 32:23-33:1).

         Charlene Dzielak represents a New Jersey subclass of washer purchasers. (DE 349 ¶ 130). On November 30, 2009, Dzielak bought her washer. (DE 349 ¶ 131). Dzielak paid $409.00 for her washer. She does not recall who put out Energy Star advertisements. (DE 349 ¶ 136).

         Jennifer Schramm represent a Virginia subclass of washer purchasers. (DE 349 ¶ 138). On January 9, 2010, Schramm bought her washer. (DE 349 ¶ 139). Schramm paid $493.20 for her washer. (DE 349 ¶ 140). At the time Schramm bought her washer, she had not read any technical regulations of the Energy Star program. (DE 349 ¶ 142). She had also not read any Energy Star test procedures. (DE 349 ¶ 145). Schramm did not have any specific understanding of how the government controls the Energy Star program. (DE 349 ¶ 146). She also did not know whether the test procedures called for measuring the capacity of the clothes washer. (DE 349 ¶ 147).

         Charles Beyer represents an Indiana subclass of washer purchasers. (DE 349 ¶ 148). On March 18, 2010, Beyer bought his washer. (DE 349 ¶ 149). Beyer paid $457.49 for his washer. (DE 349 ¶ 150).

         Kari Parsons represents an Ohio subclass of washer purchasers. (DE 349 ¶ 156). On March 27, 2010, Parsons bought her washer. (DE 349 ¶ 157). Parsons paid $492.99 for her washer. (DE 349 ¶ 158).

         Aspasia Christy represents a California subclass of washer purchasers. (DE 349 ¶ 193). On September 15, 2010, Christy bought her washer. (DE 349 ¶ 194). Christy paid $464.09 for her washer. (DE 349 ¶ 195). Christy does not recall discussing the Energy Star status of the washer with an employee of The Home Depot. (DE 315-7 at 125:11-126:2)

         Jeffery Reid represents a Florida subclass of washer purchasers. (DE 349 ¶ 204). "[I]n or about October 2010," Reid bought his washer. (DE 349 ¶ 205). Reid paid "approximately" $549.00 for his washer. (DE 349 ¶ 206). Reid has no "specific" understanding of either "absolute numbers or percentages" of savings that the Energy Star logo supposedly implied above what was displayed on the Energy Guide label. (DE 349 ¶ 210).

         Shelley Baker represents a California subclass of washer purchasers. (DE 349 ¶ 212). On December 1, 2010, Baker bought her washer. (DE 349 ¶ 213). Baker paid $439.93 for her washer. (DE 349 ¶ 214).

         Each Maytag washing machine at issue contains the Energy Star logo permanently affixed to the machine's control panel. (DE 325 ¶ 1). That particular Energy Star logo is roughly the size of a postage stamp. (DE 325 ¶ 2). Every unit purchased by every class member had one or more Energy Star logos affixed. (DE 325¶ 9).

         G. The DOE and EPA Reached a Memorandum of Understanding

         On September 30, 2009, the DOE and the EPA signed a Memorandum of Understanding ("MOU"), designating the EPA as the "brand manager" for the Energy Star program and the DOE as responsible for "monitoring and verifying test procedure compliance and the development of Federal test procedures and metrics." (DE 349 ¶¶ 92 85 93). In late 2009, the DOE created a webpage on the program website for "Frequently Asked Questions." (DE 349 ¶ 95).

         H. The DOE Changed Its Interpretation of the Term "Clothes Container"

         On May 13, 2010, the DOE issued draft guidance in FAQ form, which contained proposed guidance about how to interpret the term "clothes container." (DE 349 ¶ 162). According to the DOE's draft guidance, "Fill Level 3" corresponded to "the highest horizontal plane that a clothes load could occupy." (DE 349 ¶ 166). The DOE requested that industry members submit comments on the DOE's proposal. (DE 349 ¶ 167). On June 9, 2010, Whirlpool submitted its "Response to DOE's draft interpretation of the test procedure for measuring the capacity of clothes washers." (DE 349 ¶ 168). Whirlpool's position was that the DOE's proposed "Fill Level 3" was inconsistent with the text of the Jl Test Procedure, was inconsistent with actual consumer use habits, and would undermine the certainty and reliability of the test procedures. (DE 349 ¶ 169).

         On July 6, 2010, the DOE issued its final guidance in FAQ format, (DE 349 ¶ 170). The DOE stated that "the upper-most edge of the clothes container shall be considered the highest point of the inner-most diameter of the tub cover"-what the DOE now calls "Fill Level 3." (DE 349 ¶ 171). The DOE did not explicitly set an effective date or phase-in period for the FAQ. (DE 349 ¶179).

         Whirlpool changed its testing procedures for all new models of washers. (DE 349 ¶ 181). Whirlpool had only a limited number of energy and water testing labs that it could use to accomplish this effort. (DE 349 ¶ 182). This constituted a multi-month effort, and completion required more than two-thousand hours of laboratory time. (DE 349 ¶ 183). During this time, Whirlpool kept the DOE apprised of its progress. (DE 349 ¶ 184).

         I. The DOE Notified Whirlpool That a Single C6-1 Failed Stage I Verification Testing

         In August 2010, the DOE issued an "FAQ for: ENERGY STAR Verification Testing Pilot Program." (DE 349 ¶ 189). In that FAQ, the DOE announced that it had "initiated a pilot testing program to ensure that products bearing the ENERGY STAR logo deliver the efficiency consumers expect." (DE 349 ¶ 190).

         Regarding the testing process, the DOE stated that "[c]onsistent with ENERGY STAR appliance specifications, if the results of the Stage I test indicate that the energy consumption is no more than 5% greater than the ENERGY STAR program requirements, the unit will be deemed to have passed the screening test and no further testing will be conducted." (DE 349 ¶ 191). The DOE further declared that "[i]f the results of the screening test show energy consumption exceeding the program requirements, the manufacturer will be given 10 days to request that product be moved to Stage II testing." (DE 349 ¶ 192).

         On September 20, 2010, Whirlpool received a letter from the DOE indicating that "[t]he Maytag clothes washer model [C6-1] was selected for testing as part of the ENERGY STAR® Verification Testing Pilot Program." (DE 349 ¶ 198). In this "Stage I" testing, the DOE calculated the single washer's MEF as 1.78 (1.1% below the minimum requirement of 1.8) and the WF as 8.3 (10.7% above the maximum requirement of 7.5). (DE 349 ¶ 199). Accordingly, the DOE declared that "the clothes washer model identified below [Maytag Model C6-1] does not satisfy the ENERGY STAR Program's energy-efficiency specifications." (DE 349 ¶ 200). The DOE informed Whirlpool that it could request Stage II testing of additional units. (DE 349 ¶ 201). The DOE further instructed Whirlpool that, if it did not request additional testing by September 30, 2010, "DOE will find that Maytag model IC6-1] failed testing, and refer the matter to Environmental Protection Agency to begin the process of disqualifying the model and its derivatives from the ENERGY STAR Program." (DE 349 ¶ 202). On September 30, 2010, Whirlpool requested Stage II testing. (DE 349 ¶ 203).

         In December 2010, Whirlpool discontinued production of the washers in accordance with its long-term plan to replace one engineering platform with another. (DE 349 ¶ 221). Whirlpool manufactured no units in 2011. (DE 349 ¶ 222). Whirlpool shipped only a handful of washer units to retailers in the seven states at issue in 2011. (DE 349 ¶ 223).

         J. The DOE Notified Whirlpool That Its Washers Would Remain Energy Star Qualified

         On January 19, 2011, the DOE notified Whirlpool that it had tested three additional C6-1 units plus the same unit the DOE previously tested. (DE 349 ¶ 224). The DOE informed Whirlpool that those units did not comply with Energy Star requirements. (DE 349 ¶ 225). The DOE instructed Whirlpool that it could "respond to this notification no later than February 9, 2011." (DE 349 ¶ 227). The DOE stated further, "In your response, you may present to DOE conclusive manufacturing or design evidence or quality assurance information on why this product did not meet the ENERGY STAR Program's energy-efficiency specifications." (DE 349 ¶ 228). The DOE made clear that the C6-lwould remain designated "ENERGY STAR qualified" in the interim: "The product will remain designated as ENERGY STAR qualified during this twenty[-]day period." (DE 349 ¶ 229). The DOE stated further, "If you do not respond within twenty days or your response does not adequately demonstrate to DOE's satisfaction that the model complies with ENERGY STAR program requirements, DOE will find that the Maytag clothes washer model [C6-1] failed testing, and refer the matter to the U.S. Environmental Protection Agency (EPA) to begin the process of disqualifying the model and its derivatives from the ENERGY STAR Program." (DE 349 ¶ 230). The DOE's January 19, 2011 letter included the DOE's preliminary findings and provided notice to Whirlpool of potential final findings, subject to Whirlpool's actions. (DE 349 ¶ 231).

         On February 8, 2011, Whirlpool responded to the DOE's January 11, 2010 letter. (DE 349 ¶ 232). Whirlpool noted that while using Fill Level 4, the clothes container of a C6-1 had a measured capacity of 3.43 cubic feet, whereas under Fill Level 3, the DOE measured the capacity of the clothes container of a C6-1 as either 3.06 cubic feet or 3.07 cubic feet. (DE 349 ¶ 235). Whirlpool informed the DOE that "Whirlpool discontinued manufacture of the Washer in December[] 2010." (DE 349 ¶ 237). Whirlpool also informed the DOE that it "has none of these units remaining in inventory for sale in the United States." (DE 349 ¶ 238).

         K. The Washers Failed Testing Because the Tested Capacity Changed, but the Washers Remained the Same

         The four C6-1 units failed the DOE's verification testing solely because the measurement under Whirlpool's tests differed from that under the DOE's tests. (DE 349 ¶ 239). The washers themselves did not change; between the Whirlpool tests and the DOE tests, the only "feature" that changed about the washers was their tested capacity. (DE 349 ¶ 241). This change in tested capacity affected the washers' MEF and WF values. (DE 349 ¶ 243).

         L. The DOE Referred the Matter to the EPA for "Appropriate Action"

         On March 16, 2011, the DOE notified the EPA of its verification testing. (DE 349 ¶ 255). The DOE notified the EPA that "Whirlpool explained that the discrepancy between DOE's test results and Whirlpool's own testing stemmed from the measurement of the clothes container capacity." (DE 349 ¶ 256). The DOE did not refer the matter to the EPA "to begin the process of disqualifying the model and its derivatives from the ENERGY STAR Program." (DE 349 ¶ 257). Rather, the DOE referred the matter to EPA "for appropriate action." (DE 349 ¶ 258).

         On March 17, 2011, Whirlpool informed DOE that it had "undertaken significant effort to re-rate our current washers in conformance with the new Capacity Guidance." (DE 349 ¶ 260). On March 23, 2011, the DOE wrote to Whirlpool noting Whirlpool's progress in "retesting and recertifying its preexisting clothes washer models to conform" to the revised Fill Level guidance, and that Whirlpool was expected to complete that process by the end of April 2011. (DE 349 ¶ 261). The DOE's letter continued that "[i]n light of these developments, the Department is interested in bringing this investigation to a close." (DE 349 ¶ 262).

         On approximately May 7, 2012, the EPA added model C6-lto its list of "Non-Lighting Products Disqualified from the ENERGY STAR® Program." (DE 349 ¶ 263). Between March 16, 2011, the date on which the matter was referred to the EPA, and May 7, 2012, Whirlpool had received no communication from the EPA concerning the washers. (DE 349 ¶ 264). According to the EPA's own published disqualification procedures, when the EPA believes a product may warrant disqualification from the Energy Star program, the EPA should notify the manufacturer in advance and provide twenty days to submit a written response to that proposed action. (DE 349 ¶ 266).

         M. Plaintiffs' Understanding of Energy Star

         Plaintiffs hired two survey experts, Dr. J. Michael Dennis and Dr. R. Sukumar. (DE 349 ¶ 267). Dr. Dennis was retained to perform a "contingent valuation" survey to "measure the price premium, if any, attributable to the Energy Star label" on the washers. (DE 349 ¶ 268). Dr. Sukumar was retained "to estimate the price premium, if any, attributable to the Energy Star logo on [the washers] through the use of a conjoint analysis." (DE 349 ¶ 269).

         Defendants engaged Dr. Carol Scott as a survey expert. (DE 349 ¶ 273). Among other things, Dr. Scott was retained "to determine what the Energy Star logo means to purchasers of top-loading washing machines, and whether or not there is any consistent understanding among consumers of the type and specific amount of savings they may expect to experience when purchasing a top loading washing machine because it carries the Energy Star logo." (DE 349 ¶ 274). More specifically, Dr. Scott "was asked to determine whether consumers who purchase top-loading washing machines are aware of the criteria used to qualify washing machines as Energy Star, whether they have any consistent understanding of how much water, energy, or money they expect to save because the washing machine they purchased is labeled as Energy Star, and whether they understood the Energy Star logo as a representation that they would save at least 37% energy and 50% water, compared to a similar non-Energy Star washing machine." (DE 349 ¶ 275).

         Plaintiffs allege that their consumer-survey experts, Drs. Dennis and Sukumar and their damages expert Colin Weir found a common understanding of the Energy Star logo and a price premium for products that displayed the Energy Star logo. (See generally DE 325 ¶ 29-54). Defendants accept the experts' testimony but disagree with the experts' characterizations of consumers' understanding of the logo or the price premium it carried. (See generally DE 325 ¶ 29-54.)


         Plaintiffs brought this action, alleging that they had purchased washing machines that were supposed to be compliant with Energy Star requirements, but in fact were not. (DE 86 ¶ 1). They alleged various theories, ...

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