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United States Court of Appeals for the

Eleventh Circuit

Case No. 13-90023

MICHAEL TERRILL, ROBERT BROWN, MICHAEL VOGLER, PALECIA BOYD and DENISE PACK,

Plaintiffs-Respondents, -v.-

ELECTROLUX HOME PRODUCTS, INC. d/b/a FRIGIDAIRE,

Defendant-Petitioner.

_______________________________________

Appeal from the United States District Court for the Southern District Of Georgia.

ANSWER IN OPPOSITION TO PETITION FOR PERMISSION TO APPEAL PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 23(f)

KENNETH A. WEXLER EDWARD A. WALLACE AMY E. KELLER WEXLER WALLACE LLP 55 West Monroe Street Suite 3300 Chicago, Illinois 60603

R. BRENT IRBY CHARLES A. MCCALLUM, III MCCALLUM HOAGLUND COOK IRBY LLP 905 Montgomery Highway Suite 201 Vestavia Hills, Alabama 35216

JOHN C. BELL, JR. LEE W. BRIGHAM BELL BRIGHAM 457 Greene Street Augusta, Georgia 30901

Attorneys for Plaintiffs-Respondents, Michael Terrill, Robert Brown, Michael Vogler, Palecia Boyd and Denise Pack

COUNSEL PRESS · (866) 703-9373

PRINTED ON RECYCLED PAPER

Case: 13-90023 Date Filed: 11/21/2013 Page: 1 of 29

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

INTRODUCTION 1

SUMMARYOF THE ARGUMENT 1

BACKGROUND 2

THIS CASE PRESENTS THE CLEAREST CASE FOR WHYINTERLOCUTORY REVIEW SHOULD BE DENIED .4

I. The District Court Performed a Rigorous Analysis and Properly Appliedthe Class Certification Standard 4

II. The District Court Certified Two State-Wide Classes, Which WereNarrowly Tailored to Include Only Machines that ElectroluxAcknowledges Have a Defect 6

III. The District Court's Predominance Analysis Did Not Misapply the Law;Electrolux is Just Unhappy with the Result 12

A. The Consumer Fraud Claims Were Correctly Certified 13

B. The District Court Correctly Determined that Common IssuesPredominate with Regard to Plaintiffs' Warranty Claims 17

IV. Electrolux Fails to Demonstrate that an Appeal is Necessary by SatisfyingAiry of the Prado-Steiman Factors 19

CONCLUSION 20

1


TABLE OF AUTHORITIES

Cases

Amgen, Inc. v. Connecticut Retirement Plans & Trust Funds,568 U.S. _, 133 S. Ct. 1184 (2013) 11, 12

Butler v. Sears, Roebuck & Co.,727 F.3d 796 (7th Cir. 2013) 3, 10, 11, 12

Chavez v. Blue Sky Natural Beverage Co.,268 F.R.D. 365 (N.D. Cal. 2010) 17

Cobb v. BSH Home Appliances Corp.,No. 13-80000,2013 U.S. App. LEXIS 7023 (9th Cir. Apr. 1,2013) 3, 10

Cole v. General Motors Corp.,484 F.3d 717 (5th Cir. 2007) 12

Com cast v. Behrend,569 U.S. _, 133 S. Ct. 1426 (2013) passim

Daffin v. Ford Motor Co.,458 F.3d 549 (6th Cir. 2006) 10

Dennry v. Deutsche Bank AG,443 F.3d 253 (2d Cir. 2006) 12

Henry Schein, Inc. v. Stromboe,102 S.W.3d 675 (Tex. 2002) 14

In re Ford Motor Co. E-350 Van Products Liability Litigation,No. 03-4558,2012 U.S. Dist. LEXIS 13887 (D.N.]. Feb. 6,2012) 16

In re Hydrogen Peroxide Antitrust Litig.,552 F.3d 305 (3d Cir. 2008) 5

..11


In re Nexium Antitrust Litig.,No. 12-md-02409, 2013 U.S. Dist. LEXIS 162276 (D. Mass. Nov. 14,2013) 10

In re Steroid Hormone Prod Cases,181 Cal. App. 4th 145 (2010) 17

In re Tobacco II Cases,46 Cal. 4th 298 (2009) 17

In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.,722 F.3d 838 (6th Cir. 2013) 3, 10

In re Zurn Pex Prods. Liab. Litig.,644 F.3d 604 (8th Cir. 2011) 10, 12, 18

Keegan v. Amer. Honda Motor Co.,284 F.R.D. 504 (C.D. Cal. 2012) 10

Keegan v. Amer. Honda Motor Co.,No. 12-80138,2012 U.S. App. LEXIS 26847 (9th Cir. Nov. 9,2012) 10

Klqy v. Humana, Inc.,382 F.3d 1241 (11th Cir. 2004) 14, 15

Martin v. Ford Motor Co.,No. 10-2203,2013 U.S. Dist. LEXIS 92572 (E.D. Pa. July 2, 2013) 10, 11

Poulos v. Caesars World, Inc.,379 F.3d 654 (9th Cir. 2004) 15

Prado-Steiman v. Bush,221 F.3d 1266 (11th Cir. 2000) passim

Schleicher v. Wendt,618 F.3d 679 (7th Cir. 2010) 12

Shin v. Cobb Cnry. Bd. rfEduc.,248 F.3d 1061 (11th Cir. 2001) 2

...111


Southwestern Bell Telephone Co. v. Marketing On Hold, Inc.,308 S.W.3d 909 (Tex. 2010) 14, 16

Stearns v. Ticketmaster Corp.,655 F.3d 1013 (9th Cir. 2011) 17

Stonebridge Life Ins. Co. v. Pitts,236 S.W.3d 201 (Tex. 2007) 15

Tait v. BSH Home Appliances Corp.,289 F.R.D. 466 (C.D. Cal. 2012) 10

Terrill v. Electrolux Home Prods.,753 F. Supp. 2d 1272 (S.D. Ga. 2010) 16

U nitedHealth Group, Inc. v. Klay,543 U.S. 1081 (2005) 14

Wal-Mart Stores, Inc. v. Dukes,131 S. Ct. 2541 (2011) 4, 5, 13

Waste Mgmt. Holdings, Inc. v. Mowbrqy,208 F.3d 288 (1st Cir. 2000) 19,20

Wolin v. Jaguar Land Rover N.A., LLC,617 F.3d 1168 (9th Cir. 2010) 10

Rules

Fed. R. Civ. P. 23 passim

tv


CERTIFICATE OF INTERESTED PERSONS

Eleventh Circuit Rule 26.1-1 states that the certificate of interested persons

contained in an answer to a petition must include only persons and entities that were

omitted from the certificate contained in the petition. Counsel hereby certify that the

certificate of interested persons contained in the Defendant's petition is incomplete, with

corrections needed:

4. Kershaw Cutter & Ratinoff, LLP never appeared as counsel in the action

pending in the District Court. Mr. Ian J. Barlow was an associate at Wexler Wallace LLP

while he worked on the case.

12. Mr. Mark J. Tamblyn notified the District Court of the firm's name change

on September 17, 2008, to Wexler Wallace LLP.

13. Ms. Palecia Boyd was also a plaintiff in the action.


INTRODUCTION

There are few consumer class actions where plaintiffs have the benefit of a

defendant company's internal document that defines a common problem and the common

solution to it. This is such a case. Here, Electrolux's own internal documents indicate

that the rubber gasket of a select group of its front-loading Washing Machines is known

to develop "bioftlm" because the gasket retains standing water in its convolutions.

Order Granting Plaintiffs' Motion for Class Certification, Dkt. 201 ("Order") at 3.

Against this backdrop, the District Court correctly certified this action to proceed as a

class action, finding that common issues surrounding whether Electrolux's Washing

Machines are defective and whether Electrolux concealed this defect from consumers

predominate over any issues that affect only individual classmembers, if any.

SUMMARY OF THE ARGUMENT

Electrolux contends that the District Court applied the wrong standard, certified

overbroad classes, and disregarded individual issues that undermine its finding that

common issues predominate, and requests that this Court take the extraordinary step of

granting immediate review of the District Court's Order. See Electrolux Petition for

Permission to Appeal (''Petition'') at 7-17. But a review of the District Court's Order

and the record shows that Electrolux is incorrect and that its request for extraordinary

relief should be denied.

1


Interlocutory appeals are "inherently disruptive, time-consuming, and

expensive," and consequently are "generally disfavored." Prado-Steiman v. Bush, 221 F.3d

1266, 1276 (11th Cir. 2000) (citation omitted). This Court's practice is to use "restraint

in accepting Rule 23(f) petitions," doing so only upon showing a truly "compelling need

for resolution of the legal issue sooner rather than later." Id: at 1274. In short, "review

of a class certification order should be an avenue of last resort." Shin v. Cobb Cnty. Bd

rifEduc., 248 F.3d 1061, 1064 (11th Cir. 2001).

The petition here comes nowhere close to demonstrating a "compelling need"

for immediate review. Instead, the petition mischaracterizes the proceedings before the

District Court, ignores the evidence, and attempts to inflate this narrowly-defined class

action into something that it is not. The petition fails to show that the District Court's

class certification decision presents a novel or unsettled question of law, is likely

dispositive of the litigation, or contains any substantial weakness such that it constitutes

an abuse of discretion, so as to warrant the extraordinary step of immediate review.

Electrolux cannot and does not demonstrate that the District Court's 64-page Order

certifying two narrowly-defmed classes of consumers who purchased specific models of

washing machines constitutes an abuse of discretion.

BACKGROUNDThe Sixth and Seventh Courts of Appeal have already affirmed-twice-class

certification decisions of district courts concerning mold growth in front -loading

washing machines. These cases, which allege that the design of the machines are

2


defective in that they promote the growth of mold and biofilm, were readily certified,

affirmed, and then re-affirmed after the Supreme Court granted, vacated, and remanded

the decisions back to the circuit courts. See Butler v. Sears, Roebuck & Co., 727 F.3d 796

(7th Cir. 2013); In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838

(6th Cir. 2013). The Ninth Circuit rejected appliance manufacturer BSH Home

Appliances Corp.'s petition for permission to appeal a similar ruling in favor of class

certification by the United States District Court for the Central District of California.

Cobb v. BSH Home Appliances Corp., No. 13-80000, 2013 U.S. App. LEXIS 7023 (9th Cir.

Apr. 1,2013).

This case is even more narrow-Plaintiffs have singled out a single design defect

in specific models of Electrolux-manufactured Frigidaire washing machines (''Washing

Machines" or "Machines"). 1 Electrolux acknowledges that the Machines contain a

defective rubber gasket that causes "bioftlm" to form in the Machines, and has

developed a fix for the problem-a replacement gasket. Order at 3. But instead of

disclosing the problem to consumers or offering to fix it, Electrolux concealed the

problem from consumers and elected not to recall its defective Machines. Plaintiffs'

Renewed Motion for Class Certification ("Plaintiffs' Motion"), Dkt. 141 at 8-10.

1 The classes are limited to the following model numbers: BTF2140E,BLTF2940E, FTF2140E, FWFB9100E, FWFB9200E, GLTF2940E, LTF2140E, andLTF2940E, which are specificallymentioned in Electrolux's Service Flash. See Order at63.

3


After considering hundreds of pages of briefing, including Electrolux's

arguments that a small number of the machines required a service technician to come

to its customers' homes and that miscellaneous articles published after the machines

were first offered for sale discussed mold issues, the Court granted Plaintiffs' motion

for class certification in a thorough, well-reasoned 64-page order.

THIS CASE PRESENTS THE CLEAREST CASE FOR WHYINTERLOCUTORY REVIEW SHOULD BE DENIED

I. The District Court Performed a Rigorous Analysis and ProperlyApplied the Class Certification Standard

Electrolux assumes that Chief Judge Wood misapprehended the class

certification standard because of one sentence in her Order: that the Court should

"resolvej] doubts related to class certification in favor of certifying [a] class." Order at

12. Electrolux contends this sentence indicates that the District Court ignored the

Supreme Court's rulings in Comcast and Dukes that "a party seeking to maintain a class

action 'must affirmativelY demonstrate his compliance' with Rule 23." Petition at 7 (citing

Comcast v. Behrend, 133 S. Ct. 1426, 1432 (2013) (citation omitted, emphasis added by

Electrolux)); see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). However, the

District Court identified and applied the very exact standard Electrolux claims it ignored:

"Rule 23 does not set forth a mere pleading standard." Dukes, 131 S. Ct.at 2551. "A party seeking class certification must affirmativelydemonstrate his compliance with the Rule-that is, he must be prepared

4


to prove that there are in fact sufficiently numerous parties, common. f I f: ,,2questions 0 aw or act, etc.

Order at 10 (emphasis original).

Further, the proceedings before District Court and the District Court's Order

clearly show that the District Court required the Plaintiffs to demonstrate that each

applicable element of Rule 23 was satisfied and found that the Plaintiffs had discharged

this burden. For example, the District Court had previously denied class certification

even though the parties had stipulated to the "numerosity" requirement. See Sept. 3,

2010 Order, Dkt. 124, at 47-48 ("Even though Electrolux does not challenge

numerosity, the Court may not certify a classwithout determining that each prerequisite

is satisfied."). After Plaintiffs obtained additional discovery concerning numerosity and

renewed their motion for class certification, the District Court considered hundreds of

pages of briefs discussing the evidence and arguments for and against class certification,

before granting Plaintiffs' renewed motion. See Dkts. 158-159, 164-167, 173-175, 184-

191, 193-199.

2 The District Court subsequently noted that Electrolux had misquoted In reHydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 321 (3d Cir. 2008), for theproposition that any doubts regarding class certification should be resolved in its favor.See Order at 12, fn 10. Undaunted, Electrolux continues to press this point by citingtwo recent Supreme Court decisions that say nothing about "doubts" being resolved infavor of the defendant, and merely confirm that plaintiffs bear the burden ofdemonstrating that the requirements of Rule 23 are satisfied. See Comcast, 133 S. Ct. at1432; Dukes, 131 S. Ct. at 2551.

5


Electrolux's assertion that the District Court did not requtre Plaintiffs to

demonstrate affirmatively that the requirements of Rule 23 are satisfied is also belied by

the District Court's Order. As discussed infra at III, the District Court unequivocally

found that the issues that are common to class members' claims predominate over

issues that affect only individual class members, if any. Because Electrolux's assertion

that the District Court did not apply the correct standard in deciding Plaintiffs' motion

for class certification is incorrect, this issue does not present the type of novel or

unsettled question of law that can on rare occasions merit immediate review." Prado-

Steiman, 221 F.3d at 1274, 1275 (noting that it would be "relatively easy for a litigant to

identify some question of law implicated by the class certification decision and in good

faith characterize that question as novel or unsettled. To justify immediate and

interlocutory appellate review, something more is necessary-something that creates a

compelling need for resolution of the legal issue sooner rather than later"). Electrolux

has not shown compelling need for immediate review.

II. The District Court Certified Two State-Wide Classes, Which WereNarrowly Tailored to Include Only Machines that ElectroluxAcknowledges Have a Defect

Electrolux complains that the District Court certified a "widely overbroad class

in contravention of the Supreme Court's Comcast ruling." Petition at 9. But the two

classes that the District Court certified are not overbroad at all-they are limited to

citizens of two states who purchased specific models of front-loading Washing

6


Machines that Electrolux acknowledges contain a design defect that causes mold and

mildew to form. Order at 63.

Electrolux notes that only a small handful of customers contacted it to complain

of mold and mildew problems attributable to the defect and then leaps to the

conclusion that the biofilm problems manifested themselves in "only a tiny fraction of

the machines owned by class members" and that most class members therefore have

not been injured. Petition at 9. This conclusion does not follow for two reasons.

First, it is based on carefully-curated data that was filtered using arbitrary search

terms selected by Electrolux, Plaintiffs' Motion at 13, is limited to warranty service calls

in which a service technician was actuallY dispatched, and does not include complaints,

electronic mail, inquiries, letters, and phone calls where a service technician was not

dispatched-as was the case with the named Plaintiffs. Post-Hearing Brief in Support

of Class Certification ("Post-Hearing Brief"), Dkt. 183 at 7.3 As such, the data likely

understates significantlyactual numbers of consumers who have experienced mold and

mildew problems as a result of the defect.

3 Electrolux's typical response to a consumer who complained about mold,mildew, or an odor has been to "wipe the inside of the machine with a towel after everywash cycle and... to leave the door of [the]machine open at all times when it is not inuse, and [to] dry out the washer after every use with a [towel] to avoid water build-upand further accumulation of mold and odor." Such "advice" did not necessitate aservice call. Post-Hearing Brief at 7, n. 2.

7


More important, the conclusion ignores the Plaintiffs' theory of the case.

Plaintiffs assert and presented evidence tending to show that the Washing Machines at

issue in this case suffer from a design defect that exists at the point of sale and that

inevitably will lead to mold and mildew problems with normal use over the life of the

machines. The fact that consumers may not "smell" the biofilm does not mean that the

Washing Machines are not defective or that consumers who purchase the defective

machines are not injured. Every class member was injured at the point of sale because

they did not receive the benefit of the bargain when they purchased a Washing Machine

that is defective and that inevitably will fail of its essential purpose. See Order at 43-44

("Defendant also asserts that the cause and measure of damages will vary among class

members. . .. However, this argument misapprehends the nature of the implied

warranty of merchantability cause of action. This is a contract cause of action....

Specifically,Plaintiffs seek the difference in the value of the Washing Machine delivered

and the value of the Washing Machine as warranted .... Thus, 'the damages sought by

[plaintiffs] are not rooted in the alleged defect of the product as such, but in the fact

that they did not receive the benefit of their bargain.'" (internal citations omitted)).

The District Court addressed the question of "breadth" of the classes in its

Order at 16-17:

The proposed class definitions are appropriately tailored to the primaryissues in the case. In particular, the class definitions only includepurchasers of Washing Machines with the allegedly defective bellowsdesign. Consequently, the proposed Classes cannot sweep in people whohave not been injured by the alleged design defect.

8


Defendant asserts that the proposed Classes are overbroad. Specifically,Defendant argues that the proposed Classes are "overbroad because theyinclude all washing machine purchasers in California and Texasregardless of whether they have experienced a problem with theirmachines" and regardless of whether they "sought warranty service."....

The proposed Classes are not overbroad. Plaintiffs' claim is that allWashing Machines sold with the convoluted bellows were defective.Consequently, a class defined to include only the purchasers of suchWashing Machines is well-tailored to the allegations in Plaintiffs'Complaint. Moreover, as discussed infra, the putative class members'requests for warranty service are likely irrelevant to many of Plaintiffs'claims. Thus, the proposed classmembers' actions in that regard do notrender the Classes overbroad. Finally, Plaintiffs allege that the designdefect injured the putative classmembers from the time of purchase.

Electrolux also contends that the classes certified by the District Court run afoul

of Comcast. They do not. Comcast re-iterated already-established case law, which the

District Court followed." See Comcast, 133 S. Ct. at 1433 ("This case thus turns on the

straightforward application of class-certification principles.... "); see also id: at 1436

(Ginsberg and Breyer, JJ., dissenting) ("[T]he opinion breaks no new ground on the

4 Electrolux complains that the District Court did not cite to Comcast, however,the parties notified the District Court of the Comcast decision, and the District Court'srulings indicate that it considered the parties' notices of supplemental authorityconcerning this and other decisions. (Dkts. 194-199 (briefs submitted regardingsupplemental authority and citing Comcast); see also Order at 8 ("The Court hasconsidered the parties' many supplemental filings.");Nov. 15, 2013 Oral Order ("Posthearing briefs were submitted and considered.")).

9


standard for certifying a class action[.]"). This same case law was followed in recent

federal cases, finding that Comcast did not prevent certification of similar cases'

Electrolux relies upon Martin v. Ford Motor Co., No. 10-2203, 2013 U.S. Dist.

LEXIS 92572 (E.D. Pa. July 2, 2013), for the proposition that Comcast somehow

precludes class certification because Electrolux's data shows that service technicians

only serviced a small number of Machines. Petition at 10-11. But Comcast does not

stand for that proposition. Rather, Comcast, an antitrust lawsuit, found that the

plaintiffs' damages model did not measure only those damages attributable to their

theory of liability. 133 S. Ct. at 1433. See also In re Nexium Antitrust Litig., No. 12-md-

02409-WGY, 2013 U.S. Dist. LEXIS 162276, * (D. Mass. Nov. 14,2013) ("Comcast has

5 See Butler, 727 F3d at 799 (Comcastdid not prevent certification of front-loadingwashing machine case); In re Whirlpool Corp., 722 F3d at 859-60 (same). Cases decidedprior to Comcast fare no differently. See, e.g., In re Zurn Pex Plumbing Prods. Liab. Litig.,No. 10-2267, 2011 U.S. App. LEXIS 13663, **34-36 (8th Cir. 2011) ("the question ofproximate cause will not involve predominately individualized determinations, andresolution of that issue would be common to the class."); Wolin v. Jaguar Land RoverN.A., LLC, 617 F3d 1168, 1178 (9th Cir. 2010) (reversing district court order denyingclass certification in alignment defect case); Daffin v. Ford Motor Co., 458 F3d 549, 550(6th Cir. 2006) ("Although the class includes those owners who never actuallyexperienced a manifestation of the alleged defect, the class certification was not anabuse of discretion because the class and the named plaintiff meet the elementsof Federal Rule of Civil Procedure 23(a) and 23(b)(3)."); Tait v. BSH Home AppliancesCorp., 289 FR.D. 466, 471 (C.D. Cal. 2012) (certifying several state-wide classes ofindividuals who purchased front-loading washing machines for claims related tobioftlm), leave to appeal den'd, Cobb v. BSH Home Appliances Corp., No. 13-80000,2013 U.S.App. LEXIS 7023 (9th Cir. Apr. 1, 2013); Keegan v. Amer. Honda Motor Co., 284 FR.D.504, 552 (C.D. Cal. 2012) (two classes related to defective car suspension certified), leaveto appeal den'd, No. (9th Cir. Nov. 9,2013).

10


not changed the rule on what is required for damages models in establishing Rule

23(b)(3)predominance. . .. Comcast simply requires the moving party to present a

damages model that directly reflects and is linked to an accepted theory of liability

under Rule 23(b)(3)." (citations omitted)). As the Seventh Circuit recently stated in

another front-loading washing machine case, "[u]nlike the situation in Comcast, there is

no possibility in this case that damages could be attributed to acts of the defendants

that are not challenged on a class-wide basis; all members of the mold class attribute

their damages to mold." Butler, 727 F.3d at 799 (7th Cir. 2013).6

Although Electrolux cites a district court case from the Eastern District of

Pennsylvania in support of its argument that the District Court erred in finding that

common issues predominate in this case, Electrolux fails to cite Amgen, Inc. v. Connecticut

Retirement Plans & Trust Funds, 568 U.S. _, 133 S. Ct. 1184 (2013), a recent Supreme

Court decision that analyzes predominance specifically. The claims involved in Amgen,

a securities fraud case, are more analogous to the claims at issue in this case than the

antitrust claims that were involved in Comcast. In Amgen, in order for the plaintiffs to

prevail on their Section 10b-5 claims, they had to prove allegedlyfraudulent statements

were "material." 133 S. Ct. at 1199.

The Amgen defendants argued that class certification was inappropriate because

plaintiffs had not shown materiality; in fact, the defendants asserted that materiality had

6 Butlerwas decided after Martin.

11


been disproven. Id. at 1203. The Supreme Court disagreed, explaining that "even a

definitive rebuttal on the issue of materialitywould not undermine the predominance of

questions common to the class." Id. at 1204. The same principles apply here to

Electrolux, who asserts that its Washing Machines do not suffer from a defect. Even

though Electrolux is incorrect (and even acknowledged as much), the question of

whether or not a defect exists, like the question of materiality in Amgen, is a common

question to the class that predominates over all others. See Butler, 702 F.3d at 362

("[Electrolux] argues that most members of the plaintiff class did not experience a mold

problem. But if so that is an argument not for refusing to certify the class but for

certifying it and then entering a judgment that will largely exonerate [Electrolux]-a

course it should welcome, as all class members who did not opt out of the class action

would be bound by the judgment.")."

7 All circuits mandate that every classmember assert a constitutionally cognizableinjury; however, no circuit requires that any class member ultimately recover damages.See, e.g., In re Zurn Pex, 644 F.3d at 617 (manufacturer challenged certification of a classof all purchasers of an allegedlydefective pipe because the pipe had not yet burst in allclass members' homes, but the Eighth Circuit found that the burden on the plaintiffswas to show that there was a uniform defect-not a uniform harm); Cole v. GeneralMotors Corp., 484 F.3d 717 (5th Cir. 2007); Dennry v. Deutsche Bank AG, 443 F.3d 253 (2dCir. 2006); if. Schleicher v. Wendt, 618 F.3d 679, 686 (7th Cir. 2010) (Easterbrook, J.)("Rule 23 allows certification of classes that are fated to lose as well as classes that aresure to win.").

12


III. The District Court's Predominance Analysis Did Not Misapply theLaw; Electrolux is Just Unhappy with the Result

Electrolux next claims that the District Court "failed to 'probe behind the

pleadings'-i.e. to analyze the factual proof presented by the parties and resolve the

threshold legal issues that were necessary to decide whether plaintiffs can prove their

claims with classwide evidence." Petition at 14. This statement ignores the clear

language of the Order."

A. The Consumer Fraud Claims Were Correctly Certified

The Texas Deceptive Trade Practices Act ("DTPA") and California Unfair

Competition Law ("UCL") each provide actionable claims for both misrepresentations

and omissions of material fact. Common to each of these claims is the systematic and

uniform concealment by Electrolux of material information as to all class members."

Specifically,as Electrolux's own internal Service Flash and other evidence presented to

the District Court demonstrates, Electrolux knew of the inherent design defect and the

"bioftlm" issues arising from that defect at the time of sale. It is undisputed that

8 See also Order at 11-12 ("the court's analysis will entail some overlap with themerits of the plaintiffs underlying claim." (citing Dukes, 131 S. Ct. at 2551), "a 'rigorousanalysis' of a party's class certification motion often requires some consideration of themerits." (citing id.)).

9 Plaintiffs DTPA and UCL claims are also premised on Electrolux's uniformrepresentations that the subject Washing Machines would serve their essential purposeof cleaning and freshening clothes, rather than soiling and odorizing them. See Order at56.

13


Electrolux never disclosed this information to consumers in its uniform point of sale

materials (which were provided to the District Court) or otherwise. Given the

unseemly prospect of mold growth in a machine that is intended to clean clothes as

represented, Electrolux knew that no reasonable consumer would purchase its Washing

Machines if the inherent defect and resulting mold and mildew problems were properly

disclosed. This systematic concealment is common as to all class members.

As to Plaintiff Vogler's DTPA claim, Electrolux argues that the District Court

erred in finding that reliance could be established by class-wide evidence. Petition at 14.

As the District Court correctly noted, Texas appellate courts have recognized that a

class representative can satisfy predominance with class-wide evidence of reliance. See

Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 694 (Tex. 2002) ("If a plaintiff could prove

reliance in an individual action with the same evidence offered to show class-wide

reliance, then the issue is one oflaw and fact common to the class."). This is precisely

what occurred in Southwestern Bell Telephone Co. v. Marketing On Hold, Inc., 308 S.W.3d 909

(Tex. 2010). Southwestern Bell addressed the issue of class-wide proof of reliance, which

was a necessary element of the claim as it is here. And like the present case, the

reliance/predominance analysis in Southwestern Bell involved form documents, uniform

conduct, and class-wide payment by all class members. Id at 921-923. Southwestern Bell

held that class-wide proof of reliance could be shown through class members' payment

of the subject bills. Id at 921, citing Klqy v. Humana, Inc., 382 F.3d 1241, 1258-59 (11th

Cir. 2004), cert denied, 543 U.S. 1081, 125 S.Ct. 877 (2005).14


Likewise, the District Court correctly found that "the class members here can

show their reliance on Defendant's failure to disclose the Washing Machines' alleged

design defect and the inevitable consequences of that defect through class-wide proof

that they purchased machines to clean and freshen their clothes rather than to soil and

odorize them." Order at 56. Despite Electrolux's attempt to suggest otherwise, the

District Court's finding that "each class member presumably relied on the fact that

Defendant provided Washing Machines suitable for cleaning and freshening clothing"

can hardly be characterized as showing "substantial weakness." See Klay, 382 F.3d at

1259 (holding reliance could be proven on a class-wide basis where it did not strain

credulity that each class member relied upon representations that went to the heart of

the transactions in question-i.e., that they would be paid for the services they

performed); accord Poulos v. Caesars World, Inc., 379 F.3d 654, 667-68 (9th Cir. 2004)

(recognizing that reliance can be shown where it provides the "common sense" or

"logical explanation" for the behavior of plaintiffs and the members of the class).

Electrolux's reliance on Stonebridge Life Ins. Co. v. Pitts, 236 S.W.3d 201 (Tex.

2007) is misplaced. Stonebridge is distinguishable in that there were some disclosures

directly from the defendant that could have resulted in an understanding by class

members negating reliance. Id. at 204. Unlike here, the Stonebridge court had record

evidence from some class members that they understood they were being charged for

premiums without further notice and wanted the insurance. Id. at 206.

15


This case involves a uniform omission whereby consumers were never told, much

less "understood," that the Washing Machines would not serve their sole purpose of

cleaning and freshening clothes due to an inherent design defect that would inevitably

cause mold and mildew problems.l" The information that was omitted clearlywould be

material to anyone considering purchasing a washing machine. Terrill v. Electrolux Home

Prods., 753 F. Supp. 2d 1272, 1294 (S.D. Ga. 2010) ("Moreover the defect Brown alleges

Electrolux failed to disclose-that its Washing Machines have significant mold and

mildew issues-is material."). Who would purchase a product if they knew that the

product would likely fail of its essential purpose? Electrolux's unsupported conjecture

that some unidentified class member "may" have seen an article in a Consumer Reports

magazine about mold problems in front load washers and acted inconsistently with

reliance is simply a red herring. Despite Electrolux's knowledge of mold problems in

its front load washers, notably there is no mention of such problems in aJry of the

materials Electrolux provided to the consumers. Not surprisingly, this argument was

made by the class defendant in Southwestern Belland properly rejected. See 308 S.W.3d at

923. ("argument that some... customers mqy have called customer service to obtain an

10 This fact also distinguishes the present case from In re Ford Motor Co. E-350Van Products Liability Litigation (No. II), No. 03-4558, 2012 U.S. Dist. LEXIS 13887(D.N.]. Feb. 6, 2012), as the plaintiffs in that case could not assert a uniform omissionbecause "differing amounts of information were disclosed at different times." Id at*24.

16


adjustment. .. or otherwise acted inconsistently with a showing of reliance is mere

hypothesis and does not defeat class-wide proof of reliance." (emphasis in original)).

As to Plaintiff Brown's UCL claim, Electrolux again conveniently ignores the

fact that "relief under the UCL is available without individualized proof of deception,

reliance, and injury." Chavez v. Blue Sky Natural Beverage Co., 268 F.R.D. 365, 376 (N.D.

Cal. 2010) (citing In re Tobacco II Cases, 46 Cal. 4th 298, 327 (2009)); see also In re Steroid

Hormone Prod Cases, 181 Cal. App. 4th 145, 154 (2010) (once the named plaintiff shows

injury, "no further individualized proof of injury or causation is required to impose

restitution liability against the defendant in favor of absent class members."); Stearns v.

Ticketmaster Corp., 655 F.3d 1013, 1020-21 (9th Cir. 2011) (holding that district court

erred in Rule 23 analysis by concluding that class members' "individualized proof of

reliance and causation would be required" for liability under California UCL). Unlike

the cases cited by Electrolux where varying affirmative misrepresentations were at issue,

this case involves Electrolux's uniform non-disclosure of the inherent design defect and

the resulting mold problems. The District Court properly analyzed these issues and did

not err in certifying Plaintiffs' UCL claim. See Order at 46-53.

B. The District Court Correctly Determined that Common IssuesPredominate with Regard to Plaintiffs' WarrantyClaims

The central issue in all of Plaintiffs' warranty-based claims is whether the

Washing Machines' gaskets are defective. The District Court found that this issue, plus

the other issues that are common to Plaintiffs' express and implied warranty claims,

17


predominate over the potential individual issues that Electrolux argued weigh against a

finding that common issues predominate. Order at 34-45. The District Court held that

individual factual issues identified by Electrolux could be eliminated depending upon

the answers to certain common legal questions: common issues predominate even if

inquiry into individual issues identified by Electrolux were necessary. Id at 35,41,45.

Electrolux challenges the District Court's findings on these issues, asserting that

the court "failed to rigorously analyze the substantive law governing plaintiffs' warranty

claims." Petition at 17. Contrary to Electrolux's assertions, the District Court did not

ignore the possibility that Plaintiffs' warranty claims might require inquiry into some

individual factual issues simply because inquiry into those issues might be unnecessary.

The District Court noted that several of the individual factual issues identified by

Electrolux might be eliminated depending upon the answers to certain common legal

questions, but ultimately held that common issues predominate even if inquiry into

individual issues identified by Electrolux were necessary. Id at 35, 41, 45 Id. at 35, 41,

45. See also In re Zurn Pex, 644 F.3d at 617 (plaintiffs could seek warranty claim

"damages if they succeed in proving their claim of a universal inherent defect in breach

of warranty.").

Thus, contrary to Electrolux's assertion, the District Court did "formulate some

prediction as to how specific issues will play our in order to determine whether

common or individual issues predominate[.]" See Petition at 18. The District Court

simply concluded that common issues predominate either way. This conclusion is18


manifestly correct and certainly does not show a "substantial weakness" in the Court's

Order, as is evidenced by the fact that similar claims are routinely certified for

adjudication on a class-widebasis. See supra fn.S, at 9-10.

Immediate review also is unnecessary and undesirable at this stage of the case

because the potential individual issues that Electrolux contends undermine the District

Court's finding that common issues predominate involve merits-based defenses that are

not yet ripe for decision. The parties agreed, and the District Court ordered, that

discovery in this case would be bifurcated with merits discovery to be deferred until

after the issue of class certification is resolved. See Dkts. 44, 60. As a result, the parties

have not conducted discovery into Electrolux's merits-based defenses and the District

Court has not been called upon to decide the merit (if any) of those defenses.

In cases such as this, "Rule 23(f) should not be a vehicle for courts of appeals to

micro-manage complex litigation as it unfolds in the district court," Prado-Steiman, 221

F.3d at 1273, and that the Court "should err, if at all, on the side of allowing the district

court an opportunity to fine-tune its class certification order rather than opening the

door too widely to interlocutory appellate review." Id at 1274, quoting Waste Mgmt.

Holdings, Inc. v. Mowbrqy, 208 F.3d 288,294 (1st Cir. 2000).

IV. Electrolux Fails to Demonstrate that an Appeal IS Necessary bySatisfying Any of the Prado-Steiman Factors

Although Electrolux claims that the extraordinary relief of an interlocutory

appeal is necessary, not only does it fail to demonstrate that there are "substantial

19


weaknesses" in the District Court's Order, or that the Order concerns an "unsettled"

issue of law, it fails to demonstrate aJry of the other factors enumerated by this Court in

Prado-Steiman. For example, the "most important" to consider in deciding whether to

allow immediate review of a decision certifying a case to proceed as a class action is

whether that decision "raises the stakes of the litigation so substantially that the

defendant likelywill feel irresistible pressure to settle." Prado-Steiman, 221 F.3d at 1272,

1274. The Court should also consider whether the decision presents "an issue that is of

moment yet is 'likelyto escape effective review if left hanging until the end of the case."

rd. at 1275, quoting Mowbrqy, 208 F.3d at 294.

Electrolux does not argue that the District Court's Order places "irresistible

pressure" on it to settle. And, without irresistible pressure, the issues on which

Electrolux seeks immediate review are not ''likely to escape effective review" because

they can be reviewed after final judgment. These factors weigh heavily against

Electrolux's Petition for extraordinary relief.

CONCLUSION

Electrolux fails to meet the burden of demonstrating why this Court should

expend its resources to review the District Court's 64-page rigorous analysis granting

Plaintiffs' Motion for Class Certification. Electrolux's Petition should be denied.

Dated: November 21,2013 Respectfully submitted,

lsi Edward A. WallaceEdward A. Wallace

20


Kenneth A. WexlerEdward A. WallaceAmy E. KellerWEXLER WALLACE LLP55 West Monroe Street, Suite 3300Chicago, Illinois 60603Tel. 312-346-2222Fax [email protected]@[email protected]

Lee W. BrighamJohn C. Bell, Jr.BELL & BRIGHAMPost Office Box 1547Augusta, Georgia 30903Tel. 706- 722-2014Fax [email protected]@bellbrigham.com

Charles M. McCallumR. Brent IrbyMcCALLUM, HOAGLUND COOK &IRBY, LLP905 Montgomery Highway, Suite 202Vestavia Hills, Alabama 35216Tel. 205-824-7767Fax [email protected]@mhcilaw.com

.Attomeys for P laintiffs- Respondents

21


CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)

1. This Response in Opposition to Electrolux's Petition to Appeal complies

with the page-volume limitation of Fed. R. App. P. 27(d)(2) because it does not exceed

20 pages.

2. This Response in Opposition to Electrolux's Petition to Appeal complies

with the typeface requirements of Fed. R. App. 32(a)(S) and the type style requirements

of Fed. R. App. 32(a)(6) because it has been prepared in a proportionally-spaced

typeface using Microsoft Word 2010 in 14-point Garamond font.


.Attome» for Plaintiffs-Respondents

22


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 21,2013, pursuant to Fed. R. App.

P. 25(d), the foregoing was electronically filed with the Clerk of the Court using

CM/ECF. I also certify that the foregoing document is being served on this day on all

counsel of record, either via transmission of Notices of Electronic Filing generated by

CM/ECF, or by u.s. Mail on those counselor parties who are not authorized to receive

electronically filed Notices of Filings.


.Attome» for Plaintiffs-Respondents

23


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