Terrill v. Electrolux Home Products, Inc.

Filing 201

ORDER granting Plaintiffs' 158 Motion to Certify Class. The Court appoints Plaintiff Brown to be the representative of the California Class. The Court appoints Plaintiff Vogler to be the representative in the Texas Class. After considering Ru le 23 (g)'s factors, the Court appoints the following firms as class counsel: Bell & Brigham; McCallum, Hoaglund, Cook & Irby, LLP; and Wexler Wallace LLP. The Court directs class counsel to provide the best notice practicable to class members as required by Rule 23(c)(2)(B). A proposed notice setting forth the content and delivery method of said notice shall be filed with the Court within thirty (30) days of today's date. Signed by Chief Judge Lisa G. Wood on 10/11/2013. (ca)

3n the Sniteb btateoJittitt Court
for the 'outbern flitrict of georgia
uguta flibiion
MICHAEL TERRILL,
ROBERT BROWN,
MICHAEL VOGLER,
PALECIA BOYD, and
DENISE PACK,
on behalf of themselves and all others
similarly situated,
Plaintiffs,

ELECTROLUX HOME PRODUCTS, INC.
cl/b/a FRIGIDAIRE,
Defendant.

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CV 108-030

ORDER

Presently before the Court is Plaintiffs' Motion for Class
Certification. See Dkt. No. 158. Upon due consideration,
Plaintiffs' motion is GRANTED.
I. FACTUAL BACKGROUND

This action is predicated on an alleged design defect in
Defendant's product. See Dkt. No. 66. The relevant facts are
taken principally from Plaintiffs' First Amended Complaint. See
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id. Where the parties offer conflicting accounts of the facts
and events in question, this Court draws all inferences and
presents all evidence in the light most favorable to Plaintiffs.
See Larry James Oldsmobile-Pontiac-GMC Truck Co., Inc. v. Gen.
Motors Corp., 164 F.R.D. 428, 436-37 (N.D. Miss. 1996) ("[T]he
court must take the facts alleged in the light most favorable to
the party moving for class certification."); In re Tri-State
Crematory Litig., 215 F.R.D. 660, 680-81 (N.D. Ga. 2003).
Plaintiffs are two (2) individuals who reside in California
and Texas. Defendant is a Delaware corporation whose principal
place of business is in Augusta, Georgia. Dkt. No. 66 ¶ 18.
Defendant manufactures and sells home appliances, including
Frigidaire front-load washing machines ("Washing Machines" or
"Machines"), throughout the United States. Id. ¶91 1, 18.
Defendant's website contains the following representations
regarding its Washing Machines:
[Y]ou can count on Frigidaire for
innovation, performance and style. .
Your laundry never looked so good. . . . You
[can] trust that the iCare Intelligent
Fabric Care Systemtm gently washes and
completely dries to keep your clothes
looking their best. With no agitator, you
[can] count on tumble action to wash so
gently and rinse so completely that your
clothes feel fresher and last longer.
Id. ¶30.

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Plaintiffs each purchased Defendant's Washing Machines.
Id. ¶ 1. Plaintiffs allege that the Washing Machines, including
models BTF2140E, BLTF2940E, FTF2140E, FWFB9100E, FWFB9200E,
GLTF2940E, LTF2140E,

and LTF2940E, suffered from a defect in the

bellows's design.' Id. ¶91 1-2. Specifically, the Washing
Machines contained a 'convoluted bellows." Id. at Ex. A. The
alleged design defect in the convoluted bellows caused the
Washing Machines to accumulate mold and mildew and emit an odor. 2
Id. ¶ 2. Plaintiffs allege that the effects of the design
defect were so severe that clothing was stained and ruined and
that an odor permeated their homes. Id. 191 2, 7. Consequently,
Plaintiffs overpaid for the Washing Machines. Id. ¶ 6.
Defendant knew of the design defect before Plaintiffs
purchased their Washing Machines. 3 Id. 91 4.

Defendant failed to

warn consumers of the defect. Id. Plaintiffs would not have

The bellows is a rubber seal around the washing machine's door and drum that
keeps clothing, water, and detergent inside of the wash basket as the basket
rotates.
2
For the purposes of this Order, the court uses the terms mold, mildew, and
biofilm interchangeably.
As evidence of Defendant's knowledge of the alleged defect, Plaintiffs
attached Defendant's internal Service Flash issued in April 2007. Dkt. No.
66, at Ex. A. The Service Flash stated that a convolution in the bellows
allowed water to remain in the bellows, potentially allowing biofilm to form.
Id. The Service Flash also stated that a new bellows design that did not
have convolutions was "available for such concerns." Id. The new bellows
design was known as the "S-shaped bellows."

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purchased the Washing Machines had they known of the design
defect. Id. ¶ 6.
All of the Washing Machines came with substantially similar
warranties issued by Defendant. Each warranty consisted of
three (3) different warranties: a one-year, five-year, and
twenty-five-year warranty. Dkt.

No.

164-7, at 2. The one-year

warranty stated, "Full one-year warranty from date of purchase:
[Defendant] will pay for[] labor and replacement parts which
prove to be defective in materials and workmanship." Id.
(capitalization altered). The five-year and twenty-five year
warranties are not at issue. See Dkt.

No.

124, at 4, 13-16.

Plaintiffs purchased their Machines in their home states.
See Dkt.

No.

66 IT 14-15. Neither Plaintiff purchased a Machine

directly from Defendant. See id.
Plaintiff Robert Brown lives in San Diego, California. Id.
¶ 14. He purchased a model LTF2140ES3 Frigidaire Washing
Machine on May 8, 2006, from a Lowe's Home Improvement store in
California. Id. Plaintiff Brown first noticed the alleged
defect in July 2006. Id. However, he waited until May 2009 to
contact Defendant. Id. Defendant initially advised Plaintiff
Brown to wipe down his machine after each use and to leave the
Machine door open when it was not in use. Id. Defendant
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eventually offered to pay Plaintiff Brown for the parts and
labor to install a replacement bellows or to provide a rebate on
the purchase of a comparable washing machine. Id.
Plaintiff Michael Vogler lives in San Antonio, Texas. Id.
¶ 15. In May 2007, he purchased a model FTF2140ES3 Frigidaire
Washing Machine at Conn's in San Antonio, Texas. Id. Plaintiff
Vogler began experiencing mildew problems due to the alleged
defect in November 2008. Id. He contacted Defendant at that
time. Id. Defendant informed Plaintiff Vogler that his
Machine's warranty had expired and that all Defendant could do
was sell him a new bellows. Id.
II. PROCEDURAL BACKGROUND

On March 5, 2008, Plaintiffs Michael Terrill, Robert Brown,
Michael Vogler, Palecia Boyd, and Denise Pack ("the Initial
Plaintiffs") filed an initial complaint against Defendant. See
Dkt. No. 1. On July 1, 2009, the Initial Plaintiffs filed an
amended complaint ("Complaint") . See Dkt. No. 66. The Initial
Plaintiffs sought to bring their suit as a class action on
behalf of themselves and others similarly situated. See id.
¶91 19-29.

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The Complaint asserts claims for breach of express warranty
(Count 2); breach of implied warranty of merchantability (Count
3); unjust enrichment (Count 4); and violation of the MagnusonMoss Warranty Act, 15 U.S.C. § 2301 et seq. (Count 5) . See id.
191 50-76. The Complaint also asserts various state law claims
for deceptive trade practices and unfair competition (Counts 1,
6, 7, and 8) . See id. ¶91 46-49, 77-100.
The Initial Plaintiffs moved for class certification. See
Dkt. No. 97. Defendant moved to strike the class allegations.
See Dkt. No. 87. The Court denied the Initial Plaintiffs'
motion for class certification because the Initial Plaintiffs
failed to satisfy the numerosity requirement of Federal Rule of
Civil Procedure 23(a). See Dkt. No. 124, at 45-48.
After several orders from this Court, the remaining
plaintiffs are Robert Brown and Michael Vogler ("Plaintiffs").
See Dkt. Nos. 124, 152. The remaining claims are Plaintiff
Brown's one-year express warranty claim (Count 2), Plaintiffs'
implied warranty of merchantability claims (Count 3),
Plaintiffs' Magnuson-Moss Warranty Act claims (Count 5),
Plaintiff Brown's California Unfair Competition Law ("UCL")
claims under the UCL's unfair and fraudulent business practices
prongs (Count 6), and Plaintiff Vogler's Texas Deceptive Trade

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Practices-Consumer Protection Act claim (Count 7) . See Dkt.
Nos. 124, 150.
Currently before the Court is Plaintiffs' Motion for Class
Certification. See Dkt. No. 158. Specifically, Plaintiffs seek
to certify two (2) state-based classes consisting of:
. All persons and entities in the State of California
who purchased, other than for resale, during the
previous four (4) year S4 any of the Washing Machine S5
that were equipped with a convoluted bellows. 6
• All persons and entities in the State of Texas who
purchased, other than for resale, during the previous
four (4) year S7 any of the Washing Machines 8 that were
equipped with a convoluted bellows. 9
Dkt. No. 158, at 1-2.

Plaintiffs filed their Initial Complaint on March 5, 2008. See Dkt. No. 1.
Consequently, the proposed Classes include persons who purchased their
Washing Machines on or after March 5, 2004.
Washing Machines are defined as Frigidaire® Front Load Washing Machines,
including but not limited to Models BTF2140E, BLTF2940E, FTF2140E, FWFB9100E,
FWFB9200E, GLTF2940E, LTF2140E, and LTF2940E. Dkt. No. 112, at 6 n.2.
6
Defendant's documents use the term "bellows" interchangeably with "gasket"
and "boot." Dkt. No. 112, at 6 n.3. For simplicity, the Court uses the term
"bellows."
See supra note 4.
8
See supra note 5.
See supra note 6.

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Plaintiffs' motion is fully briefed. See Dkt. Nos. 158,
164, 167. The Court heard oral argument regarding the motion on
August 2, 2012. See Dkt. No. 184. The Court has considered the
parties' many supplemental filings. See Dkt. Nos. 174, 175,
182, 183, 185, 186, 187, 188, 189, 190, 191, 194, 195, 196, 197,
198, 199.
III. LEGAL STANDARD

A. Class Certification
"The class action is an exception to the usual rule that
litigation is conducted by and on behalf of the individual named
parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541,
2550 (2011) (citation and internal quotation marks omitted).
"[T] justify a departure from that rule, a class representative
must be part of the class and possess the same interest and
suffer the same injury as the class members." Id. (citation and
internal quotation marks omitted)
1.

Rule 23
Rule 23(a) of the Federal Rules of Civil Procedure

("Rules") contains four (4) prerequisites to class
certification. These are:
[s1

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(1) "[T]he class is so numerous that
joinder of all members is
impracticable";
(2) "[Q]uestions of law or fact common to
the class" must exist;
(3) "'[T]he claims or defenses of the
representative parties [must be]
typical of the claims or defenses of
the class"; and
(4) "[T]he representative parties will
fairly and adequately protect the
interests of the class."
Fed. R. Civ. P. 23(a). These prerequisites are designed to
"limit the class claims to those fairly encompassed by the named
plaintiff's claims." Dukes, 131 S.Ct. at 2550 (citation and
internal quotation marks omitted)
Rule 23 also requires that the plaintiff satisfy one of the
prerequisites contained in Rule 23 (b) . Plaintiffs assert that
their claims satisfy the prerequisites of Rule 23(b) (3). See
Dkt. No. 158, at 14-24. Rule 23(b) (3) requires the court to
find "that the questions of law or fact common to class members
predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy." "[M]atters pertinent to these findings include:
(A) the class members' interests in
individually controlling the
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prosecution or defense of separate
actions;
(B) the extent and nature of any litigation
concerning the controversy already
begun by or against class members;
(C) the desirability or undesirability of
concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a
class action."
Fed. R. Civ. P. 23(b)(3).
2.

Burden

"Rule 23 does not set forth a mere pleading standard."
Dukes, 131 S.Ct. at 2551. "A party seeking class certification
must affirmatively demonstrate his compliance with the Rule—
that is, he must be prepared to prove that there are in fact
sufficiently numerous parties, common questions of law or fact,
etc." Id.
3.

Court's Analysis

Before certifying a class, the court must conduct a
"rigorous analysis" to determine whether the party seeking
certification meets Rule 23's prerequisites. Vega v. T-Mobile

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USA, Inc., 564 F.3d 1256, 1266 (11th Cir. 2009) (citations
omitted)
"When adjudicating a motion for class certification, the
court accepts the allegations in the complaint as true so long
as those allegations are sufficiently specific to permit an
informed assessment as to whether the requirements of Rule 23
have been satisfied." Mazur v. eBay Inc., 257 F.R.D. 563, 566
(N.D. Cal. 2009) (citing Blackie v. Barrack, 524 F.2d 891, 901
(9th Cir. 1975)). However, analysis of Rule 23 "generally
involves considerations that are enmeshed in the factual and
legal issues comprising the plaintiff's cause of action."
Dukes, 131 S.Ct. at 2551-52 (citation and internal quotation
marks omitted). Thus, the court's analysis "will entail some
overlap with the merits of the plaintiff's underlying claim."
Id. at 2551. Consequently, the court may look beyond the
pleadings to determine whether the requirements of Rule 23 are
met. Vega, 564 F.3d at 1266.
In making its assessment, the Court "may not resolve the
merits of [the] case." Coastal Neurology, Inc. v. State Farm
Mut. Auto. Ins. Co., 458 F. App'x 793, 794 (11th Cir. 2012)
(citing Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443
F.3d 1330, 1337 (11th Cir. 2006)). However, a "rigorous
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analysis" of a party's class certification motion often requires
some consideration of the merits. See Dukes, 131 S.Ct. at 2551
("[S]ometimes it may be necessary for the court to probe behind
the pleadings before coming to rest on the certification
question . . . .." (citation omitted)); Coastal Neurology, 458 F.
App'x at 794 ("Although a district court may not resolve the
merits of a case when ruling on a Rule 23 motion, . . . the
court may, and sometimes must, inquire into the merits in order
to determine whether the requirements of Rule 23 have been
satisfied . . . ." (internal citations omitted))
The court resolves doubts related to class certification in
favor of certifying the class. 10 Rosen v. J.M. Auto Inc., 270

10
Defendant asserts that doubts regarding class certification must be
resolved in its favor. See Dkt. No. 164, at 10 (quoting In re Hydrogen
Peroxide Antitrust Litig., 552 F.3d 305, 321 (3d Cir. 2008) [hereinafter
Hydrogen Peroxide]). First, Defendant misquotes the cited case law. compare
Dkt. No. 164, at 10 ("[A] court should not grant 'certification in the face
of doubt as to whether a Rule 23 requirement has been met[.]" (quoting
Hydrogen Peroxide, 552 F.3d at 321)) with Hydrogen Peroxide, 552 F.3d at 321
("[The Third Circuit case, Eisenberg v. Gagnon, 766 F.2d 770 (3d dr. 1985),]
should not be understood to encourage certification in the face of doubt as
to whether a Rule 23 requirement has been met.") . Second, the cited case law
does not support Defendant's argument. In Hydrogen Peroxide, the Third
Circuit noted that Rule 23, as amended in 2003, invited the district court to
"reject tentative decisions on certification and encourage development of a
record sufficient for informed analysis." Hydrogen Peroxide, 552 F.3d at
321. The Third Circuit stated, "Actual, not presumed, conformance with the
Rule 23 requirements remains necessary." Id. at 322 (editorial marks and
internal quotation marks omitted) . In that case, the district court failed
to consider some of the defendant's evidence in ruling on the parties' class
certification motion. Id. Because the lower court failed to rigorously

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F.R.D. 675, 678 (S.D. Fla. 2009); Buford v. H & R Block, Inc.,
168 F.R.D. 340, 346 (S.D. Ga. 1996) aff'd sub nom. Jones v. H &
R Block Tax Servs., 117 F.3d 1433 (11th Cir. 1997).
IV. DISCUSSION

Plaintiffs seek class certification on all of their claims.
For the reasons stated below, Plaintiffs' motion for class
certification on all claims is GRANTED.
A. Class Definition
"Before considering the requirements of Rule 23, the Court
must determine whether a class exists that can adequately be
defined." Bennett v. Hayes Robertson Grp., Inc., 880 F. Supp.
2d 1270, 1278 (S.D. Fla. 2012). The class definition need not
contain "an overly strict degree of certainty." Id. (quoting
Singer v. AT & T Corp., 185 F.R.D. 681, 685 (S.D. Fla. 1998)).
However, it should not be overly broad, vague, or difficult to

consider the evidence, the Third Circuit vacated the lower court's class
certification order. Id. at 325. Such a result is consistent with the legal
standard articulated by this Court. Importantly, the court in Hydrogen
Peroxide did not state that doubts regarding class certification must be
resolved in the defendant's favor. Rather, the court stated that "the court
should not suppress 'doubt' as to whether a Rule 23 requirement is met." Id.
at 321.

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apply. See id.; Rosen v. J.M. Auto Inc., 270 F.R.D. 675, 678
(S.D. Fla. 2009).
"Class certification is not precluded simply because a
class may include persons who have not been injured by the
defendant's conduct." Mims v. Stewart Title Guar. Co., 590 F.3d
298, 308 (5th Cir. 2009); see also DG ex rel. Stricklin v.
Devaughn, 594 F.3d 1188, 1198 (10th Cir. 2010)

("[A] class will

often include persons who have not been injured by the
defendant's conduct . . . ." (quoting Kohen v. Pac. I n v. Mgmt.
Co., 571 F.3d 672, 677 (7th Cir. 2009))). The "possibility or
indeed inevitability" of certifying a class that contains
persons who have not been injured "does not preclude class
certification." Devaughn, 594 F.3d at 1198 (quoting Kohen, 571
F.3d at 677) . However, "if the [class] definition is so broad
that it sweeps within it persons who could not have been injured
by the defendant's conduct, it is too broad." Kohen, 571 F.3d
at 677.
1. Ascertainability
The proposed Classes are defined as:
. All persons and entities in the states of California
and Texas who purchased, other than for resale, during
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the previous four (4) years any of the Washing
Machines" that were equipped with a convoluted
bellows.
Dkt. No. 158, at 1-2. This definition sufficiently defines the
Classes to be certified. Moreover, the proposed class
definitions provide the Court with practical standards to
determine membership in the Classes.
Defendant asserts that the proposed Classes are not
ascertainable. Dkt. No. 164, at 11 n.6. Specifically,
Defendant asserts that it is not "'administratively feasible' to
identify class membership because there was a one-year period
during which {D]efendant sold both washers with convoluted
bellows and washers without [convoluted bellows]." Id.
Defendant asserts that the Court would need to undertake the
"painstaking task of inspecting each machine purchased" to
determine whether an alleged purchaser falls within the Class
definitions. Id.
Notwithstanding Defendant's assertion, the proposed Classes
are ascertainable. Defendant is a highly sophisticated and
modernized company. It maintains records of model numbers and

Washing Machines are defined in note 5.

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serial numbers of each Washing Machine built. See Dkt. Nos.
106, at Lx. 14; 164, at Ex. 8. It also maintains databases of
customer information. See Dkt. No. 164, at Lx. 2 ¶ 9.
Moreover, Defendant's staff engineer stated that Defendant could
use "dates of manufacture to determine the bellow[s] type for
some machines." See Dkt. No. 167, at 11 (citing Dkt. No. 106,
at Ex. 11 ¶ 9) . Thus, serial numbers and build information
could be used to identify which Machines contain the bellows
design at issue. Consequently, the proposed Classes are
ascertainable.
2. Breadth
The proposed class definitions are appropriately tailored
to the primary issues in the case. In particular, the class
definitions only include purchasers of Washing Machines with the
allegedly defective bellows design. Consequently, the proposed
Classes cannot sweep in people who have not been injured by the
alleged design defect.
Defendant asserts that the proposed Classes are overbroad.
Specifically, Defendant argues that the proposed Classes are
"overbroad because they include all washing machine purchasers
in California and Texas regardless of whether they have
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experienced a problem with their machines" and regardless of
whether they "sought warranty service." Dkt. No. 164, at 10-11.
Defendant also argues that that the proposed Classes are
overbroad because "they include persons who purchased but no
longer own" a Washing Machine. Id. at 14.
The proposed Classes are not overbroad. Plaintiffs' claim
is that all Washing Machines sold with the convoluted bellows
were defective. Consequently, a class defined to include only
the purchasers of such Washing 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 class members' actions in that regard do not render the
Classes overbroad. Finally, Plaintiffs allege that the design
defect injured the putative class members from the time of
purchase. Thus, whether the putative class members still own
their Washing Machines does not alter the validity of the claims
and does not render the class definition overbroad.
Consequently, the proposed class definitions are
appropriately fitted to allegations in Plaintiffs' Complaint and
to those persons whom could have been injured by Defendant's
alleged conduct.
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B. Numerosit
Rule 23(a) (1) requires "the class [to be] so numerous that
joinder of all members is impracticable." "Impracticable" is
not synonymous with "impossible." In re Checking Account
Overdraft Litig., 275 F.R.D. 666, 671 (S.D. Fla. 2011); In re
Theragenics Corp. Sec. Litig., 205 F.R.D. 687, 694 (N.D. Ga.
2002). Impracticability only requires that it be difficult or
inconvenient to join all members of the class. In re Checking
Account Overdraft Litig., 275 F.R.D. at 671. Factors such as
class size and geographic location of the would-be class members
are relevant to the consideration of practicality. Id.
"[W]hile there is no fixed numerosity rule, generally less
than twenty-one is inadequate, more than forty adequate, with
numbers between varying according to other factors." Cox v. Am.
Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986)
(citation and internal quotation marks omitted)
The parties agree that the numerosity requirement is

I

satisfied. See Dkt. Nos. 158, 164.12 After independently
considering the prospective numerosity of the putative class

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Defendant's counsel also acknowledged this concession in oral argument.

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members, this Court concurs. See Valley Drug Co. v. Geneva
Pharm., Inc., 350 F.3d 1181, 1188 (11th Cir. 2003) (noting the
court's independent obligation to examine elements of Rule 23).
Specifically, evidence shows at least twenty-five (25) putative
class members in the proposed Texas class and at least twentyeight (28) putative class members in the proposed California
class. Dkt. No. 158, at 6-7. The Court notes that these
numbers likely grossly underestimate the potential size of each
proposed class. In particular, Defendant received more than
1,500 product registration cards from Texas buyers and more than
1,700 product registration cards from California buyers during
the relevant time period. Id. at 6. Moreover, Defendant
distributed more than 10,000 washing machines in each state
during the relevant time period. Id. at 5.
Consequently, the likely number of class members on these
facts easily exceeds the minimum threshold recognized by the
Eleventh Circuit. More importantly, the number of potential
class members and their likely geographic distribution
throughout each state make joinder of the proposed class members
impractical. Consequently, Plaintiffs satisfied Rule 23(a) (1)'s
numerosity requirement.

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C. Commonality
Rule 23(a) (2) requires that "questions of law or fact
common to the class" exist. Notably, Rule 23(a) (2) "does not
require that all of the questions of law or fact raised by the
case be common to all the plaintiffs." Walco Invs., Inc. v.
Thenen, 168 F.R.D. 315, 325 (S.D. Fla. 1996). However, "a class
action must involve issues that are susceptible to class-wide
proof." Cooper v. Southern Co., 390 F.3d 695, 714 (11th Cir.
2004), overruled in part on other grounds by Ash v. Tyson Foods,
Inc., 546 U.S. 454, 457-58 (2006).
"Commonality requires the plaintiff to demonstrate that the
class members 'have suffered the same injury."' Dukes, 131
S.Ct. at 2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
147, 157 (1982)). "The commonality element is generally
satisfied when a plaintiff alleges that defendants have engaged
in a standardized course of conduct that affects all class
members." ?4orefield v. NoteWorld, LLC, Nos. 1:10-CV-00117,
1:11-CV-00029, 2012 WL 1355573, at *2 (S.D. Ga. Apr. 18, 2012)
(citation and internal quotation and editorial marks omitted);
see also Roper v. Consurve, Inc., 578 F.2d 1106, 1113 (5th Cir.
1978)

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Class members' claims must depend upon a common contention
that is "of such a nature that it is capable of classwide
resolution—which means that determination of its truth or
falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke." Dukes, 131 S. Ct. at
2551. "What matters to class certification . . . is not the
raising of common questions—even in droves—but, rather the
capacity of a classwide proceeding to generate common answers
apt to drive the resolution of the litigation." Id. (citation
and internal quotation marks omitted)
Plaintiffs' claims turn upon the theory that the Washing
Machines' design was defective. Some of the common issues in
this case are:
. Whether the Washing Machines possessed a common defect
in their bellows design;
. Whether the design defect in the Washing Machines
proximately caused—or inevitably would causebiofilm, mold, or mildew to grow;
• Whether Defendant adequately warned consumers about
the propensity for biofilm, mold, or mildew growth;
and

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• Whether Defendant knew about the Washing Machines'
defect at the point of sale.
These issues are capable of classwide resolution. For
example, either the Washing Machines contained a common defect—
in the form of the bellows design—or they did not. And, either
the design defect rendered the Washing Machines substantially
certain to fail (or unfit for their ordinary purpose) or it did
not. Importantly, these issues are central to the validity of
each class member's legal claims. Thus, they will generate
common answers that are likely to advance the litigation and
drive the resolution of the lawsuit. See id. Consequently,
Plaintiffs satisfied Rule 23(a) (2)'s commonality requirement.
D. Typicality
Rule 23(a) (3) requires "the claims . . . of the
representative parties [to be] typical of the claims . . . of
the class. "13 Representative "claims need not be identical to

13

Typicality and commonality are similar, but distinct, requirements. See
Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1275 (11th Cir. 2009).
"[C]ommonality refers to the group characteristics of the class as a
whole
Id. (citation omitted). "[T]ypicality refers to the
individual characteristics of the named plaintiff in relation to the class."
Id. (citation omitted) . Together, the "commonality and typicality
requirements . . . serve as guideposts for determining whether under the
......

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satisfy the typicality requirement." Ault v. Walt Disney World
Co., 692 F.3d 1212, 1216 (11th Cir. 2012) . Rather, "there need
only exist 'a sufficient nexus . . . between the legal claims of
the named class representatives and those of individual class
members to warrant class certification." Id. (quoting PradoSteiman v. Bush, 221 F.3d 1266, 1278-79 (11th Cir. 2000)).
"This nexus exists 'if the claims . . . of the class and the
class representative arise from the same event or pattern or
practice and are based on the same legal theory."' Id. (quoting
Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337
(11th Cir. 1984)
Plaintiffs' claims are typical of the putative class
members' claims. First, all claims are based on the same legal
theories: breach of express and implied contract, violation of
the Magnuson-Moss Warranty Act, and violation of specific
California and Texas deceptive trade practices and unfair
competition statutes. Second, the claims arise from the same

particular circumstances maintenance of a class action is economical and
whether the named plaintiff's claim and the class claims are so interrelated
that the interests of the class members will be fairly and adequately
protected in their absence." Cooper v. Southern Co., 390 F.3d 695, 713 (11th
Cir. 2004) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13
(1982)) (internal quotation marks omitted), overruled in part on other
grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58 (2006).

23

AC 72A
(Rev. 8/82)

event, pattern, or practice. That is, all claims are based on
the alleged sale of Washing Machines with the same, known design
defect, the same warranties, and the same failure to inform
buyers of the design flaw or its consequences.
Defendant asserts that Plaintiffs' claims are subject to
unique defenses. Dkt. No. 164, at 38. Specifically, Defendant
asserts that Plaintiff Vogler experienced problems with his
Washing Machine after the warranty period expired. Id. at 39.
Defendant also asserts that Plaintiff Brown admits that
Defendant offered to pay for the parts and labor for a
replacement bellows or provide a rebate on the purchase of a
comparable washing machine. Id. at 39 (quoting Dkt. No. 164-10,
at 9)
Defendant's assertions do not render Plaintiffs' claims
atypical. Specifically, the presence of unique defenses does
not necessarily defeat typicality. See, e.g., Wahl v. Midland
Credit Mgmt., Inc., 243 F.R.D. 291, 298 (N.D. Ill. 2007)
(finding that "the presence of a unique defense against [the
plaintiff did] not destroy typicality"); In re Checking Account
Overdraft Litig., 286 F.R.D. 645, 656 (S.D. Fla. 2012) (finding
that the "defenses asserted against the [p]laintiffs [did not]
threaten to become the focus of th[e) litigation" and that the
24

AO 72A
(Rev. 8/82)

plaintiff's claims were typical of the class) . Moreover, if an
affirmative defense against the class representatives becomes a
distraction from the larger issues affecting the proposed class
as a whole, a new class representative can take the class
representative's place. See, e.g., Wahl, 243 F.R.D. at 298 n.4;
Nelson v. IPALCO Enters., Inc., No. 1P02-477CHK, 2003 WL
23101792, at *6 n.2 (S.D. Ind. Sept. 30, 2003) ("If the problem
of [individual defenses] arises later in a case, it is more
likely to affect the issue of adequate representation, which
could be solved by merely having a new class representative step
forward . .
The claims of Plaintiffs and the purported class members
concern the same alleged conduct by Defendant, allege the same
harm, and arise from the same legal theories. See, e.g.,
Morefield, 2012 WL 1355573, at *2; Kornberg, 741 F.2d at 1337
(finding typicality satisfied where claims "arise from the same
event or pattern or practice and are based on the same legal
theory"). Thus, Plaintiffs' claims are typical of those of the
proposed class. Consequently, Plaintiffs satisfied Rule
23(a) (3)'s typicality requirement.

25

AO 72A
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E. Adequacy
Rule 23(a) (4) requires that "the representative parties
will fairly and adequately protect the interests of the class."
The "adequacy of representation" analysis "encompasses two
separate inquiries: (1) whether any substantial conflicts of
interest exist between the representatives and the class; and
(2) whether the representatives will adequately prosecute the
action." Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d
1181, 1189 (11th Cir. 2003) (citation omitted)

"If substantial

conflicts of interest are determined to exist among a class,
class certification is inappropriate." Id.
"[M]inor conflicts alone will not defeat a party's claim to
class certification . . .

•"

Id. The conflict must be

"fundamental," such that it relates to the specific issues in
controversy. Id. (citation omitted). "A fundamental conflict
exists where some party members claim to have been harmed by the
same conduct that benefitted other members of the class." Id.
"In such a situation, the named representatives cannot
vigorously prosecute the interests of the class through
qualified counsel because their interests are actually or
potentially antagonistic to, or in conflict with, the interests

AO 72A
(Rev. 8/82)

and objectives of other class members." Id. (citation and
internal quotation marks omitted)
Neither Plaintiffs nor their counsel have interests
contrary or antagonistic to those of the absent class members.
The central issues in this case—the existence, unlawfulness,
and effect of the alleged design defect in Defendant's product—
are common to the claims of Plaintiffs and the purported class
members. Like each absent class member, Plaintiffs have strong
interests in proving the alleged design defect and its inherent
effects, establishing Defendant's allegedly unlawful conduct,
demonstrating the impact of the design defect, and obtaining
redress. Plaintiffs thus share the interests of, and can
adequately represent, the proposed Classes.
Defendant asserts that Plaintiff Vogler experienced
problems with his Washing Machine after the warranty period
expired. Dkt. No. 164, at 39. Defendant also asserts that
Plaintiff Brown admits that Defendant offered to pay for the
parts and labor for a replacement bellows or provide a rebate on
the purchase of a comparable washing machine. Id. at 39
(quoting Dkt. No. 164-10, at 9). Defendant's assertions do not
render Plaintiffs inadequate class representatives.
Specifically, such minor variations in facts specifically
27

AO 72A
(Rev. 8/82)

related to the proposed class representatives are not
"fundamental." The critical issues related to the alleged
design defect, the effects of that defect, and Defendant's
alleged deception, fraud, and breach of warranties remain.
Those issues will drive the litigation. Consequently,
Plaintiffs are well-positioned to vigorously prosecute the
proposed class action.
Plaintiffs' counsel "are qualified, experienced, and
generally able to conduct the proposed litigation." See Belton
v. Georgia, No. 1:10-CV-0583-RWS, 2011 WL 925565, at *5 (N.D.
Ga. Mar. 14, 2011) (quoting Griffin v. Carlin, 755 F.2d 1516,
1533 (11th Cir. 1985)). The law firms seeking to represent the
class include qualified and experienced lawyers. The Court has
reviewed the firms' resumes setting forth their experience and
expertise in class actions. See Dkt. No. 159-1, at Exs. R, S,
P.
The Court is satisfied that the lead Plaintiffs and the
firms seeking appointment as class counsel will properly and
adequately prosecute the proposed class action. Consequently,
Plaintiffs satisfied Rule 23(a) (4)'s adequacy requirement.

AO 72A
(Rev. /82)

F. Predominance
Rule 23(b) (3) requires that "the questions of law or fact
common to class members predominate over any questions affecting
only individual members." Thus, a plaintiff must affirmatively
establish that "the issues in the class action that are subject
to generalized proof, and thus applicable to the class as a
whole, . . . predominate over those issues that are subject only
to individualized proof." Farmer v. Phillips Agency, Inc., 285
F.R.D. 688, 701 (N.D. Ga. 2012) (alteration in original)
(quoting Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999,
1005 (11th Cir. 1997)) . "It is not necessary that all questions
of fact or law be common, but only that some questions are
common and that they predominate over individual questions."
Klay v. Humana, 382 F.3d 1241, 1254 (11th Cir. 2004) (citation
and editorial marks omitted), abrogated in part on other grounds

b y Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639 (2008).
The court must "consider the claims, defenses, relevant
facts, and applicable substantive law." 14 DWFII Corp. v. State
Farm Mut. Auto. Ins. Co., 469 F. App'x 762, 765 (11th Cir. 2012)

14

This Court previously determined that the law of each individual
Plaintiff's home state governs Plaintiffs' claims. See Dkt. No. 124, at 7-8.

29

AO 72A
(Rev. 8/82)

(per curiam) (quoting Klay, 382 F.3d at 1254) (internal
quotation marks omitted). "Whether an issue predominates can
only be determined after considering what value the resolution
of the class-wide issue will have in each class member's
underlying cause of action." Klay, 382 F.3d at 1255 (quoting
Rutstein v. Avis Rent-A-Car Sys., 211 F.3d 1228, 1234 (11th Cir.
2000))
"Common issues of fact and law predominate if they have a
direct impact on every class member's effort to establish
liability and on every class member's entitlement to injunctive
and monetary relief." Id. (citation, internal quotation marks,
and editorial marks omitted) . "Where, after adjudication of the
classwide issues, plaintiffs must still introduce a great deal
of individualized proof or argue a number of individualized
legal points to establish most or all of the elements of their
individual claims, such claims are not suitable for class
certification under Rule 23(b) (3) ." Id.; see also DWFII Corp.,
469 F. App'x at 765.
The former Fifth Circuit provided a method for evaluating
predominance. See Alabama v. Blue Bird Body Co., 573 F.2d 309,
319-29 (5th Cir. 1978). The Eleventh Circuit adopted that
approach. See Klay, 382 F.3d at 1255; see also Vega v. T-Mobile
30

AO 72A
(Rev. 8/82)

USA, Inc., 564 F.3d 1256, 1270 (11th Cir. 2009). Under that
test, "if common issues truly predominate over individualized
issues in a lawsuit, then 'the addition or subtraction of any of
the plaintiffs to or from the class should not have a
substantial effect on the substance or quantity of evidence
offered.'" Klay, 382 F.3d at 1255 (quoting Blue Bird Body, 573
F.2d at 322) (editorial marks omitted). Thus, "the addition of
more plaintiffs to a class [that necessitates] the presentation
of significant amounts of new evidence, . . . strongly suggests
that individual issues (made relevant only through the inclusion
of these new class members) are important." Id. (citing Blue
Bird Body, 573 F.2d at 322). "If, on the other hand, the
addition of more plaintiffs leaves the quantum of evidence
introduced by the plaintiffs as a whole relatively undisturbed,
then common issues are likely to predominate." Id.
To determine whether questions of law or fact common to
class members predominate over questions affecting individual
members, the court separately analyzes each of Plaintiffs'
claims. See Blades v. Monsanto Co., 400 F.3d 562, 569 (8th Cir.
2005) (noting that determining whether predominance exists
"necessarily requires an examination of the underlying elements
necessary to establish liability for plaintiffs' claims" (citing
31

AO 72A
(Rev. 8/82)

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d
154, 172 (3d Cir. 2001))).
1. Express Warranty
Plaintiff Brown asserts that Defendant breached its express
warranty in violation of California's Song-Beverly Consumer
Warranty Act ("Song-Beverly Act"), California Civil Code § 1790
et seq. Dkt. Nos. 66 ¶I 50-53; 124, at 21 n.6.
"A plaintiff pursuing an action under the Song-Beverly Act
has the burden to prove the following elements: (1) the product
had a defect or nonconformity covered by the express warranty;
(2) the product was [either] presented to an authorized
representative of the manufacturer for repair [or the
manufacturer or an appropriate service and repair facility was
notified of the defect or nonconformity]; and (3) the
manufacturer or its representative did not repair the defect or
nonconformity after a reasonable number of repair attempts.

15

,15

Defendant proposes a different formulation of the elements required under
the Song-Beverly Act's express warranty provision. See Dkt. No. 164, at 2728 (citing Kearney v. Hyundai Motor Co., No. SACV 09-1298 DCC (MLGx), 2010 WL
9093204, at *6 (C.D. Cal. June 4, 2010), for the proposition that a plaintiff
u mus t allege: (1) the exact terms of the warranty; (2) reasonable reliance
thereon; and (3) a breach of warranty that proximately caused plaintiff's
injury"). However, the court in Kearney based its rule on case law that

32

AC 72A

(Rev. 8/82)

Gonzalez v. Drew Indus. Inc., 750 F. Supp. 2d 1061, 1073 (C.D.
Cal. 2007) (citing Robertson v. Fleetwood Travel Trailers of
Cal., Inc., 50 Cal. Rptr. 3d 731 (Cal. Ct. App. 2006)); Cal.
Civ. Code § 1793.2.
Common issues exist with respect to the express warranty's
terms and coverage, the presence of a universal design defect,
and causation. Specifically, Plaintiffs assert that every
Washing Machine included the same express warranty. Moreover,
Plaintiffs assert that every Washing Machine was defectively
designed and that the inherent defect reduced the value of their
Washing Machines by inevitably causing mold and mildew problems.

dealt with a superseded version of the California UCC—a version which
explicitly required "reliance." See Kearney, 2010 WL 9093204, at *6 (citing
Williams v. Beechnut Nutrition Corp., 229 Cal. Rptr. 605, 608 (Cal. Ct. App.
1986)). Plaintiff Brown brought his claim pursuant to the current version of
California's Civil Code. Consequently, the Court is not persuaded that the
rule applied by the court in Kearney applies in this case, if at all.
The Court cautions the parties to be precise in distinguishing between
the Song-Beverly Act and the California UCC (including superseded versions of
these statutory provision) . The Court recognizes that these statutes are
complimentary. See, e.g., Cal. Civ. Code § 1790.3 (stating that "[t]he
remedies provided . . - are cumulative and shall not be construed as
restricting any remedy that is otherwise available"). However, these
provisions are not interchangeable. In fact, where provisions of the
California 0CC conflict with the rights guaranteed to buyers under the
provisions of the Song-Beverly Act, the provisions of the Song-Beverly Act
prevail. See Id. Consequently, the parties would do well to be particular
when citing to California case law and, where appropriate to rely on cases
that analyze the California 0CC, to provide a reason for why that case law
provides a useful analogy to the Court.

33

AO 72A
(Rev. 8/82)

Finally, Plaintiffs assert that the express warranty covered the
design defect.
Defendant argues that individual issues exist because each
putative class member was required to provide pre-suit notice
and an opportunity to cure the alleged defect. 16 See Dkt. No.
164, at 23-24. However, whether each class member was required
to give pre-suit notice and whether Defendant's prior knowledge
of the design defect satisfied or nullified any alleged notice
requirement are questions that are common to the proposed class.
Thus, the individualized factual issue regarding the notice
provided by each putative class member is reached only if the
common answers to inquiries regarding the legal requirements for
notice reveal that individualized notice and opportunity to cure
were required from each putative class member.
Consequently, the following common issues exist:
(1) whether the Washing Machine's bellows had a design defect,

16
The Court notes that much of the cited case law does not involve the
application of California law in general or California's Song-Beverly Act in
particular. For example, the court in Stearns v. Select Comfort Retail Corp.
applied notice requirements from the Uniform Commercial Code. No. 08-2746 JF
(PVT), 2009 WL 4723366, at *6_7 (N.D. Cal. Dec. 4, 2009); see also Tietswôrth
v. Sears, 720 F. Supp. 2d 1123, 1140 (N.D. Cal. 2010) (ostensibly applying
the Song-Beverly Act, but citing the California Commercial Code for the
proposition that a plaintiff "must plead that she provided the defendant with
pre-suit notice of the breach" (citing Cal. Corn. Code § 2607)). However,
Plaintiff Brown alleges violations of the Song-Beverly Act. Thus, the notice
requirements of that Act control.

34

AO 72A
(Rev. 8/82)

(2) whether the defect reduced the value of the Washing Machine,
(3) whether the express warranty covered the design defect at
issue in this case, (4) whether each class member was required
to give pre-suit notice, and (5) whether Defendant's prior
knowledge of the design defect satisfied or nullified any
alleged notice requirement. See, e.g., Wolin v. Jaguar Land
Rover N. Am., LLC, 617 F.3d 1168, 1173-74 (9th Cir. 2010)
(finding similar predominant issues when certifying a class
action for breach of warranty related to an allegedly defective
car part); Daffin v. Ford Motor Co., 458 F.3d 549, 554 (6th Cir.
2006) (same); Keegan v. Am. Honda Motor Co., 284 F.R.D. 504, 536
(C.D. Cal. 2012) (applying California substantive law and
federal procedural law and finding common issues predominated
where a "claim [would] succeed if plaintiffs [were] able at
trial to show that all class vehicles [were] substantially
certain to manifest the [design defects] alleged in the
complaint") . These issues predominate the factual inquiries
into (1) the notice provided by each individual putative class
member (if such an inquiry is required at all) and (2)
Defendant's efforts to cure, and efficacy in curing, the defect
after notice was provided.

35

AO 72A
(Rev. 8/82)

2. Implied Warranty of Merchantability
Plaintiffs assert that Defendant breached its implied
warranty of merchantability in violation of California and Texas
law. Dkt. No. 66 ¶I 54-61. Plaintiff Brown's claim is brought
pursuant to the Song-Beverly Act. See Dkt. No. 124, at 21 n.6.
Plaintiff Vogler's claim is brought pursuant to the Texas
Business and Commercial Code § 2.314.'
a. California Law
The Song-Beverly Act provides that "every sale of consumer
goods that are sold at retail in this state shall be accompanied
by the manufacturer's and the retail seller's implied warranty
that the goods are merchantable." Cal. Civ. Code § 1792. Goods
are merchantable if they:
(1)

Pass without objection in the trade under
the contract description[;]

(2)

Are fit for the ordinary purposes for which
such goods are used[;]

17

Plaintiffs' Complaint and filings do not clarify the statutory provision
under which Plaintiff Vogler brings his claim. However, the Complaint states
that the claim is brought pursuant to state law for an alleged "breach of the
implied warranty of merchantability." See Dkt. No. 66, at 19. Consequently,
the Court assumes that Plaintiffs' Complaint refers to Texas's statutory
provision, Tex. Bus. & Corn. Code § 2.314, Implied Warranty: Merchantability;
Usage of Trade.

36

AO 72A
(Rev. 8/82)

(3)

Are adequately contained, packaged, and
labeled[; and]

(4)

Conform to the promises or affirmations of
fact made on the container or label.

Id. § 1791.1(a).
The implied warranty of merchantability does not "impose a
general requirement that goods precisely fulfill the expectation
of the buyer." Elias v. Hewlett-Packard Co., 903 F. Supp. 2d
843, 852 (N.D. Cal. 2012) (quoting Am. Suzuki Motor Corp. v.
Superior Court, 44 Cal. Rptr. 2d 526, 529 (Cal. Ct. App. 1995)).
"Instead, it provides for a minimum level of quality." Id.
(quoting Am. Suzuki Motor Corp., 44 Cal. Rptr. 2d at 529). "The
core test of merchantability is fitness for the ordinary purpose
for which such goods are used." Id. (quoting Mexia v. Rinker
Boat Co., 95 Cal. Rptr. 3d 285, 289 (Cal. Ct. App. 2009)); see
also Keegan v. Am. Honda Motor Co., Inc., 838 F. Supp. 2d 929,
945 (C.D. Cal. 2012)

("[A] plaintiff claiming breach of an

implied warranty of merchantability must show that the product
did not possess even the most basic degree of fitness for
ordinary use." (citation and internal quotation marks omitted)).
"Such fitness is shown if the product is in safe condition and
substantially free of defects . . . ." Elias, 903 F. Supp. 2d
at 852 (alteration in original) (quoting Mexia, 95 Cal. Rptr. 3d
37

AO 72A

(Rev 8/82)

at 289). The implied warranty is "coextensive in duration with
an express warranty which accompanies the consumer goods." Cal.
Civ. Code § 1791.1(c) (noting certain limitations to the
duration of the implied warranty)
Common issues exist with respect to whether the Washing
Machines had a design defect, whether that design defect
rendered the Washing Machines unmerchantable, whether the
alleged latent defect necessarily breached Defendant's implied
warranty of merchantability during the warranty period, and
whether the defect reduced the value of the Washing Machines.
Specifically, Plaintiffs assert that every Washing Machine
included the same implied warranty. Moreover, Plaintiffs assert
that every Washing Machine was defectively designed and that the
inherent defect rendered the machines unmerchantable by
inevitably causing mold and mildew problems. Plaintiffs also
argue that the design defect reduced the value of their Washing
Machines. Finally, Plaintiffs assert that the implied warranty
covered the design defect.
Defendant argues that individual issues exist because each
putative class member must prove that his machine was
unmerchantable during the warranty period. See Dkt. No. 164, at
17-20. In particular, Defendant argues that individualized

AO 72A
(Rev. 8/82)

facts are required to show the particular "problem" with each
machine, whether and how that problem affected the putative
class member's laundry, and whether the putative class member
continued to use the machine. 18 See id. at 18. However, a
common issue exists that will likely defeat many, if not all, of
the individualized factual issues asserted by Defendant.
Specifically, whether an implied warranty claim is defeated when
a latent defect existed during the warranty period but was
discovered after the warranty period is an issue common to all
putative class members. See, e.g., Ehrlich v. BMW of N. Am.,
LLC, 801 F. Supp. 2d 908, 924 (C.D. Cal. 2010) (citing
California case law for the rule that "so long as a latent
defect existed within the one-year period, its subsequent
discovery beyond that time [does] not defeat an implied warranty
claim") . Thus, the individualized factual issues regarding the
effect of the alleged design defect on each putative class

18

Defendant cites case law in support of its argument. See Dkt. No. 164, at
19. However, the cited cases deal with products with "rare malfunctions,"
where the vast majority of consumers did not experience problems with the
products. Id. Plaintiff contends that all Washing Machines sold with the
convoluted bellows design were defective. Thus, unlike a case where a
factual inquiry into each user's experience is required, this case has many
common issues. For example, the scope and duration of the implied warranty
and the cause of the alleged defect are issues that are likely to yield
answers that are common to the proposed Classes.

39

AO 72A
(Rev. 8/82)

member's laundry and the extent to which the purchasers
continued to use the defective Machines are reached only if the
common answers to inquiries regarding the legal requirements for
discovery of a latent design defect reveal that individualized
discovery within the warranty period is required for each
putative class member.
Defendant also argues that individual issues exist as to
causation. See Dkt. No. 164, at 20-22. However, Plaintiffs
assert that every Washing Machine was defectively designed and
that the inherent defect reduced the value of the Washing
Machines by inevitably causing mold and mildew problems, thus
making the machines unfit for their ordinary purpose. Whether
Plaintiffs are correct is a common issue that will produce a
common answer.
Consequently, the following common issues exist:
(1) whether the Washing Machine's bellows had a design defect,
(2) whether that design defect rendered the Washing Machines
unmerchantable, (3) whether an implied warranty is breached
where a latent defect exists during the warranty period but is
discovered after the warranty period expires, (4) whether the
implied warranty of merchantability covered the design defect at
issue in this case, and (5) whether the latent defect reduced
40

AO 72A
(Rev. 8/82)

the value of the Washing Machines. These issues predominate the
factual inquiries—assuming such inquiries are even required—
concerning (1) the types of individualized problems that each
putative class member encountered with his machine, (2) when
those problems arose, and (3) whether the putative class members
continued to use their machines.
b. Texas Law
Plaintiff Vogler's breach of implied warranty claim is
brought pursuant to Texas Business and Commercial Code § 2.314.19
"To prevail on a claim of breach of implied warranty of
merchantability, a plaintiff must show . . . (1) that the
merchant sold goods to the plaintiff; (2) that the goods were
unmerchantable, that is, unfit for ordinary purposes; (3) that
the plaintiff notified the defendant of the breach; . . . (4)
that the plaintiff suffered injury;" and (5) that the warranty's
breach proximately caused the loss sustained. Hartford v.
Lyndon-DFS Warranty Servs., Inc., No. 01-08-00398-CV, 2010 WL
2220443, at *11 (Tex. App. May 28, 2010) (citing Tex. Bus. &
Corn. Code § 2.314, cmt. 3; Hyundai Motor Co. v. Rodriguez, 995

19

AO 72A
8/82)

(Rev

See supra note 17.

S.W.2d 661, 667-68 (Tex. 1999); and Roventini v. Ocular Scis.
Inc., 111 S.W.3d 719, 723 (Tex. App. 2003)); Tex. Bus. & Corn.
Code § 2.314 crnt. 13 (noting that the plaintiff must show that
(1) the warranty existed, (2) the warranty was broken, and (3)
the warranty's breach proximately caused the loss sustained);
see also Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 853 (Tex.
App. 2005). The plaintiff must also prove "that the goods were
defective at the time they left the manufacturer's or seller's
possession." McManus v. Fleetwood Enters., Inc., 320 F.3d 545,
552 (5th Cir. 2003) (quoting Plas-Tex, Inc. v. U.S. Steel Corp.,
772 S.W.2d 442, 444 (Tex. 1989)).
Common issues exist with respect to whether Defendant sold
the Washing Machines, whether those machines had a design defect
at the time of sale, whether that design defect rendered the
Washing Machines unmerchantable, whether the alleged latent
defect necessarily breached Defendant's implied warranty of
merchantability during the warranty period, and whether the
defect reduced the value of the Washing Machines. Specifically,
it is undisputed that Defendant's Washing Machines were equipped
with a bellows. Whether the bellows' design rendered the
Washing Machines defective at the time that those machines left
Defendant's possession is a common question. Critically, it is
42

AO 72A
(Rev. 8/82)

a question whose answer will not vary among class members
because the inquiry is focused on the time that the Washing
Machines left Defendant's possession.
Defendant argues that individual issues exist because each
putative class member must prove that the member's Washing
Machine failed during the warranty period. See Dkt. No. 164, at
17-19. However, Plaintiffs assert that the Washing Machines
were defectively designed and unfit for their ordinary purposes
at the time of sale. Thus, Plaintiffs assert that Defendant
breached the warranty at the moment that each class member
purchased his machine. Plaintiffs' theory is susceptible to
common answers. Either the machines were delivered in breach of
the implied warranty of merchantability or they were not. Thus,
no individualized inquiries into when the breach occurred are
necessary.
Defendant also asserts that the cause and measure of
damages will vary among class members. See id. at 17-22.
However, this argument misapprehends the nature of the implied
warranty of merchantability cause of action. This is a contract
cause of action. See McManus, 320 F.3d at 552. Specifically,
Plaintiffs seek the difference in the value of the Washing
Machine delivered and the value of the Washing Machine as
43

AO 72A
(Rev. 8/82)

warranted. See Tex. Bus. & Corn. Code § 2.714(b). 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." McManus, 320 F.3d at 552
(quoting Coghlan v. Wellcraft Marine Corp., 240 F.3d 449, 455
n.4 (5th Cir. 2001)). Consequently, the appropriate questions
are whether the Washing Machines were defective with respect to
a washing machine's "ordinary purpose" and, if so, whether the
defect prevented purchasers from receiving the benefit of their
bargains. Tex. Bus. & Corn. Code § 2.314. Whether any class
member suffered an injury other than the alleged bargain-based
harm does not defeat Plaintiffs' claim. See McManus, 320 F.3d
at 552.
Defendant argues that individual issues exist because each
putative class member must prove that the member notified
Defendant of the alleged breach of warranty. See Dkt. No. 164,
at 22-26. However, Defendant provided no case law supporting
its argument that each putative class member must provide such
notice. Moreover, whether classwide or individualized notice is
required is a common question with a common answer. Also,
whether Defendant's prior knowledge of the design defect
satisfied or nullified any alleged notice requirement is a
44

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question that is common to the proposed class. Thus, the
individualized factual issue regarding the notice provided by
each putative class member is reached only if the common answers
to inquiries regarding the legal requirements for notice reveal
that individualized notice was required from each putative class
member.
Consequently, the following common issues exist:
(1) whether Defendant sold the Washing Machines, (2) whether the
Washing Machines' bellows had a design defect at the time of
sale, (3) whether that design defect rendered the Washing
Machines unmerchantable, (4) whether the defect prevented the
purchasers from receiving the benefit of their bargain,
(5) whether each class member was required to give pre-suit
notice, and (6) whether Defendant's prior knowledge of the
design defect satisfied or nullified any alleged notice
requirement. These issues predominate the factual inquiries
into the notice provided by each individual putative class
member (if such an inquiry is required at all)
3. Magnuson-Moss Act
Plaintiffs assert that Defendant violated the Magnuson-Moss
Warranty-Federal Trade Commission Improvement Act ("Magnuson45

AO 72A
(Rev. 8/82)

Moss Act"), 15 U.S.C. § 2301 et seq. Dkt. No. 66 191 68-76. The
court looks to the substantive law of the applicable state to
determine whether Magnuson-Moss Act claims are viable. See,
e.g., Johnson v. Jaguar Cars, Inc., No. CIV.A.1:05CV3161-RLV,
2006 WL 1627125, at *2 (N.D. Ga. June 6, 2006) . Thus, for the
reasons stated above, common issues predominate any
individualized issues with respect to Plaintiffs' Magnuson-Moss
Act claims.
4. California Unfair Competition Law
Plaintiff Brown asserts that Defendant violated
California's Unfair Competition Law ("UCL"), California Business
and Professions Code § 17200 et seq. Dkt. No. 66 191 77-84.
The TJCL prohibits "any unlawful, unfair or fraudulent
business act or practice and unfair, deceptive, untrue or
misleading advertising." Cal. Bus. & Prof. Code § 17200. In a
prior Order, this Court found that Plaintiff Brown's claims
could proceed under the following prongs of the UCL: unfair
business practices or fraudulent business practices. See Dkt.
No. 124, at 41.

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a. Unfair Business Practice
Plaintiff Brown alleges a UCL cause of action based on
unfair business practices. "An act or practice is unfair if the
consumer injury is substantial, is not outweighed by any
countervailing benefit to consumers or to competition, and is
not an injury the consumers themselves could reasonably have
avoided." Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1137 (N.D.
Cal. 2010) (citation omitted); see also Daugherty v. Am. Honda
Motor Co., Inc., 51 Cal. Rptr. 3d 118, 129 (Cal. Ct. App. 2006).
The elements of an unfair business practices claim are
susceptible to classwide proof. 20 In particular, common issues
exist as to whether a consumer is substantially injured when the
consumer's Washing Machine soils, rather than cleans, clothing
and whether a consumer is injured by a household appliance that
cultures mold, mildew, and foul odors. Common issues also exist
as to whether there is any countervailing benefit to consumers
or competition and whether the consumers could reasonably have
avoided their alleged injuries. Because each element of the

20

Defendant appears to agree. See generally Dkt. No. 164, at 31-34 (arguing
that individualized evidence is required to prove a violation of the UcL's
fraudulent business practices prong while failing to argue that such evidence
is required to prove a violation of the UCL's unfair business practices
prong).

47

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unfair business practices claim is susceptible to classwide
proof, such common issues necessarily predominate.
b. Fraudulent Business Practice
Plaintiff Brown alleges a UCL cause of action based on
fraudulent business practices. "A fraudulent business practice
is one which is likely to deceive the public." McKell v. Wash.
Mut., Inc., 49 Cal. Rptr. 3d 227, 239 (Cal. Ct. App. 2006)
(citing Mass. Mut. Life Ins. Co. v. Superior Court, 119 Cal.
Rptr. 2d 190, 195 (Cal. Ct. App. 2002)).
A [JCL fraud claim can "be based on representations to the
public which are untrue." Id. It can be based on
representations that "may be accurate on some level, but will
nonetheless tend to mislead or deceive." Id. at 239 (citation
omitted)
"[A] UCL fraud claim requires no proof that the plaintiff
was actually deceived." Clemens v. DaimlerChrysler Corp., 534
F.3d 1017, 1025-26 (9th Cir. 2008) (citing Daugherty v. Am.
Honda Motor Co., 51 Cal. Rptr. 3d 118, 128-29 (Cal. Ct. App.
2006)) . "Instead, the plaintiff must produce evidence showing
'a likelihood of confounding an appreciable number of reasonably
prudent purchasers exercising ordinary care.'" Id. at 1026
W.

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(quoting Brockey v. Moore, 131 Cal. Rptr. 2d 746, 756 (Cal. Ct.
App. 2003)). Thus, a plaintiff must allege with specificity
that the defendant's alleged misrepresentations: "1) were relied
upon by the named plaintiffs; 2) were material; 3) influenced
the named plaintiffs' decisions to purchase the defective
Machines; and 4) were likely to deceive members of the public."
Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1137 (N.D. Cal. 2010)
(citing In re Tobacco II Cases, 207 P.3d 20, 39-41 (Ca. 2009)
[hereinafter "Tobacco II"]).
The elements of reliance and influence relate to Plaintiff
Brown and, therefore, do not require classwide proof. McAdams
v. Monier, Inc., 105 Cal. Rptr. 3d 704, 717 (Cal. Ct. App. 2010)
(noting that "relief under the UCL . . . is available without
individualized proof of deception, reliance and injury"
(citation omitted)). The remaining elements are susceptible to
classwide proof. In particular, common issues exist as to (1)
what Defendant said or did not say to consumers, (2) whether
Defendant's alleged omissions regarding the design were
material, and (3) whether Defendant's alleged omissions were
likely to deceive the public. See, e.g., Ewert v. eBay, Inc.,
Nos. C-07-02198 RMW, C-07-04487 RMW, 2010 WL 4269259, at *8
(N.D. Cal. Oct. 25, 2010) ("Because materiality is determined
49

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based on an objective, reasonable person standard, the issue of
whether the alleged misrepresentations were material can be
addressed with class-wide evidence."); but see Fairbanks v.
Farmers New World Life Ins. Co., 128 Cal. Rptr. 3d 888, 903-04
(Cal. Ct. App. 2011) (finding no common issue regarding whether
the public was "likely to be deceived" where the defendants'
alleged misrepresentations were not uniform)
Defendant argues that individual issues exist because each
putative class member must prove causation and reliance. See
Dkt. No. 164, at 31-34. However, "California courts have
repeatedly held that relief under the UCL including restitution
is available without individualized proof of deception, reliance
and injury." McAdams, 105 Cal. Rptr. 3d at 717 (quoting Tobacco
II, 207 P.3d at 39) (editorial marks omitted); see also Pfizer
Inc. v. Superior Court, 105 Cal. Rptr. 3d 795, 803 (Cal. Ct.
App. 2010) (quoting Tobacco II, 207 P.3d at 35)

("[R]elief under

the UCL is available without individualized proof of deception,
reliance and injury."); In re Steroid Hormone Prod. Cases, 104
Cal. Rptr. 3d 329, 336 (Cal. Ct. App. 2010) ("[W]hile a named
plaintiff in a UCL class action now must show that he or she
suffered injury in fact and lost money or property as a result
of the unfair competition, once the named plaintiff meets that
50

AO 72A
(Rev. 8/82)

burden, no further individualized proof of injury or causation
is required to impose restitution liability against the
defendant in favor of absent class members.")
In support of its position, Defendant directed this Court
to many California cases. See Dkt. No. 164, at 32-33. However,
such cases are readily distinguishable. In particular, the
courts that did not certify class actions for lack of
predominant common issues did so because consumers were exposed
to non-uniform business practices and different types of
information. See, e.g., Pfizer Inc., 105 Cal. Rptr. 3d at 803
(finding that more than half of various types of mouthwash at
issue "never included any label that made any
[misrepresentation]"); Kaldenbach v. Mut. of Omaha Life Ins.
Co., 100 Cal. Rptr. 3d 637, 652 (Cal. Ct. App. 2009) (noting
that the trial court could properly conclude that "there was no
showing of uniform conduct likely to mislead the entire class"
because the claim involved actions of many different insurance
agents with different training and materials); Cohen v. DIRECTV
Inc., 101 Cal. Rptr. 3d 37, 48 (Cal. Ct. App. 2009)
(distinguishing facts from Tobacco II by noting that the UCL did
not "authorize an award for injunctive relief and/or restitution
on behalf of a consumer who was never exposed in any way to an
51

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allegedly wrongful business practice"). Other courts failed to
certify the class because they rejected the plaintiffs' theories
of recovery. See, e.g., Campion v. Old Republic Home Prot. Co.,
272 F.R.D. 517, 533 (S.D. Cal. 2011) (finding the plaintiff's
theory of recover "too speculative to entitle [the class
members] to restitution"); In re Vioxx Class Cases, 103 Cal.
Rptr. 3d 83, 101 (Cal. Ct. App. 2009) (holding that the
plaintiff's proposed drug comparator was invalid).
Because individualized proof of reliance and injury is not
required for non-representative class members, the issues of
reliance and injury do not foreclose Plaintiff Brown's UCL class
action. See, e.g., Yamada v. Nobel Biocare Holding AG, 275
F.R.D. 573, 578 (C.D. Cal. 2011) ("The . . . the alleged
omissions and affirmative misrepresentations were consistently
made and are therefore common to all members of the putative
class."); Wiener v. Dannon Co., 255 F.R.D. 658, 669 (C.D. Cal.
2009) ("For a class action, an inference of reliance arises as
to the entire class only if the material misrepresentations were
made to all class members."); Negrete v. Allianz Life Ins. Co.
of N. Am., 238 F.R.D. 482, 492 (C.D. Cal. 2006) (holding that
the court could reasonably assume that no rational class member
would have purchased the product had he known of the alleged
52

AO 72A
(Rev. 8/82)

misrepresentation). Accordingly, Plaintiff Brown may prove with
generalized evidence that Defendant's conduct was "likely to
deceive" purchasers of the Washing Machines. Consequently,
common issues predominate individualized issues in Plaintiff
Brown's unfair business practices claim.
5. Texas Deceptive Trade Practices-Consumer Protection Act
Plaintiff Vogler asserts that Defendant violated Texas's
Deceptive Trade Practices-Consumer Protection Act ("DTPA"), Tex.
Bus. & Com. Code § 17.41 et seq. Dkt. No. 66 191 85-92.
The DTPA "contains a list, commonly referred to as the DTPA
'laundry list,' of actions declared to constitute false,
misleading, or deceptive acts." Checker Bag Co. v. Washington,
27 S.W.3d 625, 634 (Tex. App. 2000) (citing Tex. Bus. & Corn.
Code § 17.46(b) and Crown Life Ins. Co. v. Casteel, 22 S.W.3d
378, 385-86 (Tex. 2000)). To succeed in a DTPA laundry-list
suit, the plaintiff must show that "(1) the plaintiff is a
consumer; (2) the defendant engaged in false, misleading, or
deceptive acts, and (3) these acts constituted a producing cause
of the consumer's damages." Satterfield v. Vess, No. 2-04-287CV, 2005 WL 1838978, at *4 (Tex. App. Aug. 4, 2005) (citing Tex.
Bus. & Corn. Code § 17.50 (a) (1) and Doe v. Boys Clubs of Greater
53

AO 72A
(Rev 8/82)

Dali., 907 S.W.2d 472, 478 (Tex. 1995)). "A DTPA claim can also
arise from the breach of express or implied warranties or from
any unconscionable action or course of action." Duke v.
Caterpillar, Inc., No. 01-03-00840-CV, 2005 WL 568071, at *4
(Tex. App. Mar. 10, 2005) (citing Tex. Bus. & Corn. Code
§5 17.50(a) (2)-(3)).
Reliance on the alleged misrepresentation is also an
element of a DTPA cause of action. Henry Schein, Inc. v.
Stromboe, 102 S.W.3d 675, 693 (Tex. 2002). The plaintiff's
burden to prove reliance "is in no way altered by the assertion
of claims on behalf of a class." Id. However, a class
representative can produce classwide evidence of reliance. Id.
at 693-94.
From October 2002, when the Supreme Court of Texas
delivered its decision in Schein, until July 2008, no Texas
court found evidence of classwide reliance for a DTPA cause of
action. See Tex. S. Rentals, Inc. v. Gomez, 267 S.W.3d 228, 237
(Tex. App. 2008). This Court is aware of no case delivered
after July 2008 where a Texas court found evidence of classwide
reliance for such a claim. However, Plaintiffs directed the

54

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(Rev. 8/82)

Court to Southwestern Bell Telephone Co. v. Marketino on Hold
Inc., 308 S.W.3d 909 (Tex. 2010).21 See Dkt. No. 167, at 27-30.
In Southwestern Bell, a plaintiff attempted to certify a class
for claims involving, inter alia, breach of express warranty
under Texas law. 308 S.W.3d at 914. Breach of express warranty
claims, like DTPA claims, require the plaintiff to prove
reliance. See Schein, 102 S.W.3d at 686 n.23 (applying Texas
law and noting that reliance is an element of a breach of
express warranty claim to the extent that the affirmation or
promise "becomes part of the basis of the bargain"). In
Southwestern Bell, the defendant phone company allegedly
overrepresented municipal fees on invoices to its customers.
308 S.W.3d at 914. Those customers paid the amount shown as due
and owing on their invoices. Id. Consequently, the customers
overpaid. Id. The Texas Supreme Court held that the trial
court did not abuse its discretion by certifying the class claim

21

Plaintiffs also directed the Court to Lubin v. Farmers Group, Inc., No. 0303-00374-CV, 2009 WL 3682602 (Tex. App. Nov. 6, 2009) . However, that case
involved alleged violations of Texas's Insurance Code. There, the court
upheld the lower court's certification of a settlement class because the
"predominate issue - . . [was) whether [the defendant] overcharged its
policyholders, not whether [the defendant] made individual
misrepresentations." Lubin, 2009 WL 3682602, at *21. Thus, the decision in
Lubin is unhelpful to rendering a decision here, as this case does not
involve the Texas Insurance Code or a settlement class.

55

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(Rev. 8/82)

for breach of warranty. Id. at 922. Specifically, the Texas
Supreme Court held that the trial court did not abuse its
discretion in finding that the necessary element of reliance
could be demonstrated by classwide proof because "evidence of
reliance [could] be demonstrated from the records of [the
defendant] by showing that the members of the putative class
paid the bill after it was presented." Id.
Similar classwide proof can show reliance here. In
Southwestern Bell, class members could show their reliance on
the invoices' numerical statements through classwide proof that
customers paid the amounts shown on their bills. See id. at
922-23. Similarly, the putative 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 classwide proof that they purchased
Machines to clean and freshen their clothes rather than to soil
and odorize them. See, e.g., Tracker Marine, L.P. v. Ogle, 108
S.W.3d 349, 360 (Tex. App. 2003) (finding that a boat
manufacturer's failure to disclose in marketing brochures that
its boats were "unsuited for use in a maritime environment" was
equivalent to affirmatively stating "these boats are no good in
water" and noting that pleading such a claim "eliminate[d] most
56

AO 72A

(Rev. 8/82)

fact questions on reliance" because "every buyer relied on the
omission, as no one would buy [a boat] with [knowledge that it
was not suitable for water]").
Although each proposed class member made individualized
assessments for deciding to purchase a machine, each class
member presumably relied on the fact that Defendant provided
Washing Machines suited for cleaning and freshening clothing.
Thus, each class member's reliance on Defendant's alleged
misrepresentations or omissions is demonstrable through
classwide proof. Furthermore, commons issues exist as to the
other elements of Plaintiffs' DTPA claim. Specifically, whether
the class members were consumers and whether Defendant made a
misrepresentation that caused the class member's injuries can be
demonstrated by classwide proof.
Because each element of Plaintiff Vogler's DPTA claim is
susceptible to classwide proof, such common issues necessarily
predominate.
6. Affirmative Defenses
Defendant asserts that Plaintiffs' claims are subject to
"individualized inquiries regarding a number of affirmative
defenses." Dkt. No. 164, at 36. Defendant further asserts that
57

AO 72A
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its affirmative defenses may differ with respect to each
putative class member. Id. at 36-37 (listing, for example,
product misuse and accord and satisfaction). The Court is not
persuaded by Defendant's arguments for several reasons.
First, unique affirmative defenses rarely predominate where
a common claim is established. See In re Checking Account
Overdraft Litig., 286 F.R.D. 645, 656 (S.D. Fla. 2012).
Second, Defendant's brief lists many possible affirmative
defenses; however, such defenses are not raised in Defendant's
Answer. Compare Dkt. No. 164, at 36 (listing accord and
satisfaction, waiver, and contributory and comparative
negligence) with Dkt. No. 127, at 8-9 (failing to list such
defenses)
Third, Defendant failed to explain how any affirmative
defense predominates the common issues. As noted earlier in
this Order, many defenses raised in Defendant's Answer are
common to the proposed Class. For example, standing, notice,
and privity are defenses likely subject to common evidence and
answers. Also, Defendant's defense that the putative class
members misused the Washing Machines has classwide application.
Specifically, whether the putative class members can show that
the Machines were defective and that such defect led to the

AO 72A
(Rev. 8/82)

problems of which Plaintiffs complain are common issues.
Defendant may be able to rebut Plaintiffs' evidence on these
issues by introducing evidence of the effect of product misuse.
However, such defense goes to the common issue of causation.
Thus, it is consistent with—and does not undermine—the
purposes of certifying a class action.
Finally, "the presence of individualized damages issues
does not prevent a finding that the common issues in the case
predominate." Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d
1248, 1261 (11th Cir. 2003), aff'd sub nom., Exxon Mobil Corp.
v. Allapattah Servs., Inc., 545 U.S. 546 (2005) (citing Supreme
Court, Second Circuit, and Fifth Circuit cases) . Thus, although
Defendant's allegation that each purported class member failed
to mitigate the member's own damages weighs against class
certification, that issue does not preclude class certification
where many other common issues exists and predominate the
potentially individualized issue of mitigation of damages.
Thus, the affirmative defenses pled by Defendant do not
predominate the common issues related to Plaintiffs' claims.

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7. Conclusion
For the multiple reasons stated above, common questions and
answers predominate individualized questions and answers for
each of Plaintiffs' claims. Accordingly, the Court finds that
each of Plaintiffs' claims meet the predominance requirement of
Rule 23(b) (3)

22

G. Superiority
Rule 23(b) (3) requires "that a class action [be] superior
to other available methods for fairly and efficiently
adjudicating the controversy." "In making its determination
[regarding superiority], the Court must find that difficulties
in management will not render th[e] action improper for
certification." In re Theragenics Corp. Sec. Litig., 205 F.R.D.
687, 697 (N.D. Ga. 2002) (citation omitted). Class
certification "cannot be denied because the number of potential
class members makes the proceeding complex or difficult." Id.

22

If the course of litigation reveals that individualized inquiries into
notice, Defendant's representations to each class member, or product use are
required, the Court has the flexibility to create subclasses or to decertify
the class altogether. See Fed. R. Civ. P. 23(c) (1); Keilholtz v. Lennox
Hearth Prods. Inc., 268 F.R.D. 330, 342 (N.D. Cal. 2010); see also PradoSteiman ex rel. Prado v. Bush, 221 F.3d 1266, 1273 (11th Cir. 2000) (noting
that Rule 23(c) (1) specifically empowers district courts to alter or amend
class certification orders at any time prior to a decision on the merits)

60

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(citation omitted) . Difficulties in management of a case become
significant "only if they make the class action a less 'fair and
efficient' method of adjudication than other available
techniques." Id. at 697-98 (citation omitted).
Here, class treatment is superior to other available
methods for the fair and efficient adjudication of the claims
before the Court. A single, coordinated proceeding is superior
to hundreds of discrete and disjointed suits addressing the same
facts and legal issues. "Separate actions by each of the class
members would be repetitive, wasteful, and an extraordinary
burden on the courts." In re Checking Account Overdraft Litig.,
275 F.R.D. 666, 679 (S.D. Fla. 2011) (quoting Kennedy v.
Tallant, 710 F.2d 711, 718 (11th Cir. 1983)); see also In re
Checking Account Overdraft Litig., 275 F.R.D. at 679 ("[W]here,
as here, 'it is not economically feasible to obtain relief
within the traditional framework of a multiplicity of small
individual suits for damages, aggrieved persons may be without
any effective redress unless they may employ the class-action
device." (quoting Deposit Guar. Nat'l Bank, Jackson, Miss. v.
Roper, 445 U.S. 326, 339 (1980))).
Moreover, the claims of each class member in this case are
so small that it would cost them much more to litigate an
61

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individual case than they could ever hope to recover in damages.
Thus, there is no reason to believe that the putative class
members have a particular interest in controlling their own
litigation.
Furthermore, concentrating the litigation in this forum is
logical and desirable. Finally, the proposed Classes appear to
be manageable, as they each contain discreet legal issues
involving individual state and federal law.
For the multiple reasons stated above, class treatment is
superior to other available methods for the fair and efficient
adjudication of this controversy. Accordingly, the Court finds
that Plaintiffs satisfied the superiority requirement of
Rule 23(b) (3).
V. CONCLUSION

For the reasons stated above, Plaintiffs' claims satisfy
Rule 23(a)'s prerequisites and Rule 23(b) (3)'s requirements.
Consequently, Plaintiffs' Motion for Class Certification is
GRANTED.

Dkt. No. 158.

The Court CERTIFIES the following Classes:

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. California Class: All persons and entities who
purchased, other than for resale, after March 5, 2004 23
and while in the State of California, any Frigidaire®
Front Load Washing Machine, including but not limited
to Models BTF2140E, BLTF2940E, FTF2140E, FWFB9100E,
FWFB9200E, GLTF2940E, LTF2140E, and LTF2940E, equipped
with a convoluted bellows.
• Texas Class: All persons and entities who purchased,
other than for resale, after March 5,

200424 and while

in the State of Texas, any Frigidaire® Front Load
Washing Machine, including but not limited to Models
BTF2140E, BLTF2940E, FTF2140E, FWFB9100E, FWFB9200E,
GLTF2940E, LTF2140E, and LTF2940E, equipped with a
convoluted bellows.
The claims of the California Class are the one-year express
warranty claim (Count 2), the implied warranty of
merchantability claim (Count 3), the Magnuson-Moss Warranty Act
claim (Count 5), and claims under the UCL's unfair and
fraudulent business practices prongs (Count 6) . The claims of

23
24

supra note 4.
See supra note 4.

63

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the Texas Class are the implied warranty of merchantability
claim (Count 3), the Magnuson-Moss Warranty Act claim (Count 5),
and the Texas Deceptive Trade Practices-Consumer Protection Act
claims (Count 7)
The Court APPOINTS Plaintiff Brown to be the representative
of the California Class. The Court APPOINTS Plaintiff Vogler to
be the representative of the Texas Class.
After considering Rule 23(g)'s factors, the Court APPOINTS
the following firms as class counsel: Bell & Brigham; McCallum,
Hoaglund, Cook & Irby, LLP; and Wexler Wallace LLP.
The Court DIRECTS class counsel to provide the best notice
practicable to class members as required by Rule 23(c) (2) (B). A
proposed notice setting forth the content and delivery method of
said notice shall be filed with the Court within thirty (30)
days of today's date.

SO ORDERED, this 11TH day of October, 2013.

0 1

~

t'I SA GODBEY 1400D, CHIEF JUDGE

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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