On April 1, the Supreme Court issued “GVR” (grant, vacate and remand) orders in two cases, summarily instructing the courts of appeals to reconsider their prior decisions in light of the Court’s recent Comcast Corp. v. Behrend decision. The opinions that were vacated and remanded were Ross v. RBS Citizens, NA, 667 F.3d 900 (7th Cir. 2012) (see my blog post about Ross) and In re Whirlpool Corp. Prods. Liab. Litig., 678 F.3d 409 (6th Cir. 2012). The Court’s decision to vacate and remand these two cases suggests to me that Comcast will be given fairly broad application, inconsistent with the dissent’s suggestion in Comcast that the majority opinion was narrow and confined to its facts. (See my blog post on Comcast.)
In Ross, the Seventh Circuit’s opinion focused on: (1) whether the district court’s class certification order satisfied the requirement in Rule 23(c)(1)(B) that a class certification order must adequately define the class and the class issues, claims and defenses; and (2) whether the commonality requirement was satisfied under Wal-Mart v. Dukes. Neither of these issues were directly addressed in Comcast. The cert petition in Ross (see SCOTUSblog page) raised the following issues: “(1) Whether it is consistent with Wal-Mart Stores, Inc. v. Dukes to hold that a defendant to a Federal Rule of Civil Procedure 23(b)(3) class action has no right to raise statutory afﬁrmative defenses on an individual basis if the class seeks ‘only’ monetary relief; and (2) whether a district court can conclude that the Rule 23(a)(2) commonality requirement is satisﬁed when a class claims the denial of overtime pay, without resolving whether dissimilarities in the class would preclude it from establishing liability on a class-wide basis.” The second issue, which touches on the extent to which merits determinations must be made at class certification, was addressed in Comcast (albeit consistently with Dukes). Perhaps that is what the Court wants to be reconsidered.
Whirlpool involves claims of mold/mildew problems with front-loading washing machines. The Sixth Circuit upheld class certification, finding that the district court had conducted a “rigorous analysis” and had appropriately declined to decide merits questions that were not necessary for purposes of class certification. The district court and court of appeals concluded that the questions of whether there were design defects that caused the problems at issue, and whether product warnings were adequate, were common issues that were appropriate for classwide resolution and predominated. The class was certified only for purposes of liability, with damages reserved for individual determination. The cert petition in Whirlpool (see SCOTUSblog page) raised the following issues: “(1) Whether a class may be certified under Federal Rule of Civil Procedure 23(b)(3) even though most class members have not been harmed and could not sue on their own behalf; (2) whether a class may be certified without resolving factual disputes that bear directly on the requirements of Rule 23; and (3) whether a class may be certified without determining whether factual dissimilarities among putative class members give rise to individualized issues that predominate over any common issues.” Issues (2) and (3) seem to fall within what Comcast addressed, as well as the question of whether the lower courts’ approach of certifying a class only for liability and not for damages in Whirlpool is consistent with Comcast.
These two orders seem to confirm that the Court’s majority views the Comcast decision as substantially more than merely a narrow ruling relatively limited to the unique circumstances of that case. It will be interesting to see what the Sixth and Seventh Circuits do with these cases on remand.