United States District Court, D. New Jersey
CHARLENE DZIELAK, SHELLEY BAKER, FRANCIS ANGELONE, BRIAN MAXWELL, JEFFREY McLENNA, JEFFREY REID, KARI PARSONS, CHARLES BEYER, JONATHAN COHEN, JENNIFER SCHRAMM, and ASPASIA CHRISTY, Plaintiffs,
WHIRLPOOL CORPORATION, LOWE'S COMPANIES, INC., SEARS HOLDING CORPORATION, THE HOME DEPOT, INC., FRY'S ELECTRONICS, INC., APPLIANCE RECYCLING CENTERS OF AMERICA, INC., LOWE'S HOME CENTER, AND LOWE'S HOME CENTER, LLC, Defendants.
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). 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.
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.
first named defendant is the manufacturer of Maytag washing
machines, Whirlpool Corporation
("Whirlpool"). 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").
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.
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).
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. 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.
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.
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.
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.
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.
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).
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
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
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).
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).
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).
The Jl Test Procedure
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 ¶
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).
The DOE Instructed Whirlpool How to Measure Its Top-Loading
Washers for Energy Star Compliance
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).
Whirlpool Revised Its Internal Test Procedure for All
Top-Loading Clothes Washers in Light of the DOE's
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).
later designated the "top of the tub cover" as
"Fill Level 4." (DE 349 ¶ 71).
The Washers Met Energy Star Requirements When Tested in
Accordance with the DOE's May 14, 2007 Guidance
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).
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).
started shipping the washers to retailers in April 2009. (DE
349 ¶ 90).
Nearly Every Named Plaintiff-and Most Washer
Purchasers-Bought Washers Before the DOE Changed Its
Interpretation of "Clothes Container"
twenty-three percent of all C6 sales occurred during November
2009, when The Home Depot 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).
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).
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).
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).
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).
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).
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).
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).
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)
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 ¶
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).
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).
The DOE and EPA Reached a Memorandum of
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
The DOE Changed Its Interpretation of the Term "Clothes
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).
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).
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).
The DOE Notified Whirlpool That a Single C6-1 Failed Stage I
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).
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 ¶
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 ¶
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).
The DOE Notified Whirlpool That Its Washers Would Remain
Energy Star Qualified
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 ¶
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).
The Washers Failed Testing Because the Tested Capacity
Changed, but the Washers Remained the Same
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
The DOE Referred the Matter to the EPA for "Appropriate
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).
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).
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).
Plaintiffs' Understanding of Energy Star
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 ¶
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).
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.)
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, ...