Mednick v. Precor Inc
Filing
185
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/16/2017:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GARY MEDNICK and STEVEN
BAYER, Individually and on
Behalf of All Others
Similarly Situated,
Case No. 14 C 3624
CONSOLIDATED ACTION
Plaintiffs,
Judge Harry D. Leinenweber
v.
PRECOR, INC., a Delaware
Corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
Because the Court finds no manifest error of law in its
Order granting class certification, it denies Defendant Precor,
Inc.’s (“Precor”) Motion for Reconsideration [ECF No. 174].
I.
BACKGROUND
In March 2017, the Court certified as a class Plaintiffs’
consumer fraud action.
Mednick v. Precor, Inc., No. 14 C 3624,
2017 U.S. Dist. LEXIS 37694, at *1 (N.D. Ill. Mar. 16, 2017).
The certification was limited since the Court allowed the case
proceed as a class only for the purpose of determining liability
and reserved issues related to damages to individual hearings.
Id.
The ruling nonetheless moved the case forward as it permits
Plaintiffs to attempt to prove the merits of their allegation
that
Precor
had
deceptively
marketed
and
sold
treadmills
incorporating
technology,
“touch
that
sensors,”
Precor
knew
a
did
heart
not
rate
monitoring
accurately
measure
its
users’ heart rates.
The victory was hard won for Plaintiffs.
To obtain it,
they had significantly narrowed the proposed class.
In their
original Motion for Class Certification, Plaintiffs had sought
to certify both a nationwide class to pursue a federal warranty
claim
and
a
multi-state
class
to
recover
protection laws of 10 different states.
under
the
consumer
Plaintiffs defined as
class members all those who bought Precor’s exercise equipment
containing
the
touch
sensor
technology,
or
20
models
of
treadmills, elliptical machines, and stationary bikes in all.
The Court refused to certify such a broad class.
Mednick
v. Precor, Inc., No. 14 C 3624, 2016 U.S. Dist. LEXIS 75582, at
*1 (N.D. Ill. June 10, 2016).
It found that Plaintiffs had not
carried their burden to show that Rule 23(b)(3)’s predominance
requirement
was
acknowledged
satisfied.
that
whether
See,
Precor
id.
at
*17-23.
“falsely
and
The
Court
misleadingly
market[ed] the Touch Sensors . . . on the 20 Precor machines at
issue despite knowing that they were ‘inherently defective’” was
a common issue susceptible to class treatment.
Id. at *17-18.
Nonetheless,
of
claims
.
.
satisfied.”
it
.
concluded
prevents
Id.
at
that
“[t]he
the
Court
*23.
The
- 2 -
from
nature
finding
Court
was
Plaintiffs’
Rule
23(b)(3)
concerned
that
Plaintiffs’ “breach-of-warranty action, coupled with a claim of
fraud,
poses
manageability
serious
of
certification.”
problems
the
suit,
Id.
(quoting
about
and
thus
Szabo
choice
the
v.
of
law,
propriety
of
Bridgeport
the
class
Machines,
Inc., 249 F.3d 672, 674 (7th Cir. 2001)) (internal quotation
marks omitted).
questions,
In addition, the Court found that the following
heavily
Reconsideration,
relied
upon
predominated
by
over
Precor
the
in
issue
its
Motion
common
for
to
the
class:
(1) [I]s th[e] unreliability [of the touch sensors, if
any] attributable to a defect, or simply to human
error?
(2) Or is the unreliability due to some external
factor, like the user’s age? Or their body mass? Or
weight? Or their cardio-physiology? Or the thickness
or dryness of the skin on their hands?
Or their
average rate of exercise?
(3) And if the product proves to be defective, is that
defect present only on a certain type of machine
(treadmill, elliptical, AMT, or stationary bike)?
(4) Or is it attributable to a specific heart rate
system (Alatech, Salutron, or Polar)?
Mednick, 2016 U.S. Dist. LEXIS 75582 at *21-22.
Having failed to obtain class certification on their first
try, Plaintiffs acted to narrow the scope of their case.
entirely
dropped
the
warranty
claim,
reduced
the
They
number
of
states for which they pursue the consumer fraud claims from ten
to five, and cabined the products they allege to be deceptively
- 3 -
marketed to just the treadmills.
their
effort
to
certify
a
(Plaintiffs also abandoned
class
longer seek injunctive relief.
under
Rule
23(b)(2)
and
no
Because these issues did not
figure into the Court’s decision to certify the class, the Court
does not discuss them any further in this Opinion.)
Thus, on
the renewed Motion for Class Certification, Plaintiffs’ proposed
class went from being nationwide to covering just five states.
The
proposed
class
products
decreased
from
20
models
of
treadmills, ellipticals, and stationary bikes to nine models of
treadmills.
case
no
Moreover, with the warranty claim gone, Plaintiff’s
longer
presented
a
problematic
action, coupled with a claim of fraud.”
“breach-of-warranty
Szabo, 249 F.3d at 674.
Instead, it became a pure consumer fraud action, and Plaintiffs
worked to show that the laws of the remaining five states were
largely uniform.
The
Court
found
that
requirements of Rule 23.
this
narrow
class
satisfied
the
It identified as a question common to
the class the issue of whether Precor engaged in representations
or omissions that were likely to deceive a reasonable consumer.
See, Mednick, 2017 U.S. Dist. LEXIS 37694, at *21-22.
The Court
further found that this common question “predominate[d] over any
questions affecting only individual members.”
52; FED. R. CIV. P. 23(b)(3).
See, id. at *44-
In arriving at this conclusion, the
Court specifically addressed whether Plaintiffs’ injuries could
- 4 -
be
proximately
caused
promotional materials.
by
Precor’s
allegedly
See, id. at *22-33.
deceptive
The Court concluded
that when the representations were confined to those graphics
found on the machines themselves and any omissions Precor failed
to make to the class, Plaintiffs could carry their burden to
show proximate causation with classwide proof.
33.
See, id. at *31-
The Court expressly noted that it found the case at bar
“analogous” to Suchanek v. Sturm Foods, Inc., 764 F.3d 750 (7th
Cir. 2014).
Id. at *32.
The Court also examined the issue of damages.
It decided
that the class members’ damages should be reserved to individual
hearings.
See, Mednick, 2017 U.S. Dist. LEXIS 37694, at *36-38.
Nonetheless, mindful of what the Supreme Court said in Comcast
Corp. v. Behrend, 133 S.Ct. 1426 (2013), the Court scrutinized
Plaintiffs’ damages model.
Court
understood
that
See, id. at *44-48.
the
model
that
Although the
Plaintiffs
submitted
calculated a full refund as a measure of the class members’
damages, the Court reasoned that this model could readily be
modified to deliver a partial refund number instead.
See, id.
The Court thus found that Comcast did not prevent the class from
being
motion
certified.
to
certify
Accordingly,
the
class
the
for
liability.
- 5 -
Court
the
granted
purpose
of
Plaintiffs’
determining
Precor asks the Court to reconsider, asserting that the
Court made multiple manifest errors of law.
such
error
upon
reexamining
its
opinion
The Court finds no
and
so
denies
the
matter
a
Motion
for
Motion.
II.
While
Precor
LEGAL STANDARD
styled
the
current
Reconsideration, no such motion exists under the Federal Rules
of Civil Procedure.
Talano v. Nw. Med. Faculty Found., 273 F.3d
757, 760 n.1 (7th Cir. 2001).
Instead, the Court must construe
Precor’s request for relief either as a motion to alter or amend
a judgment under Rule 59(e) or a motion for relief from a final
order under Rule 60(b).
Because Precor filed the Motion within
28 days of the Court’s class certification order and because it
argues that the Court made manifest errors of law rather than
that
any
new
evidence
has
been
discovered,
Precor to be moving under Rule 59(e).
the
Court
deems
See, FED. R. CIV. P. 59(e)
(requiring that a motion to alter or amend a judgment “be filed
no later than 28 days after the entry of the judgment”); Scott
v. Bender, 948 F.Supp.2d 859, 866 (N.D. Ill. 2013) (stating that
an
argument
province
of
that
a
court
Rule
59(e)
committed
and
not
errors
Rule
of
60(b)”)
law
is
(emphasis
“the
in
original).
Precor
bears
a
Court’s prior ruling.
heavy
burden
in
seeking
to
reverse
the
See, Scott, 948 F.Supp.2d at 866 (citing
- 6 -
Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d
1264, 1270 (7th Cir. 1996)).
Precor can show that the Court
committed a manifest error of law only by establishing that the
Court
engaged
in
“wholesale
disregard,
failure to recognize controlling precedent.”
misapplication,
or
Oto v. Metro. Life
Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal quotation
marks
omitted).
cannot
advance
In
attempting
arguments
or
to
carry
theories
its
that
burden,
the
Precor
Court
has
previously rejected or those that “could and should have been
made before the district court rendered a judgment.”
Sigsworth
v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007) (internal
quotation marks omitted); Schilke v. Wachovia Mortg., FSB, 758
F.Supp.2d 549, 554 (N.D. Ill. 2010).
Finally, the decision to
grant or deny a Rule 59(e) motion is within the “sound judgment”
of the Court, and its decision is reviewed only for abuse of
discretion.
In re Prince, 85 F.3d 314, 324 (7th Cir. 1996).
III.
ANALYSIS
As a preliminary matter, the Court notes the uphill battle
that Precor faces.
In its Motion, Precor does not claim that
any new fact has presented itself or that any new authority has
been issued since the Court ruled on class certification.
Cf.,
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191 (7th Cir. 1990) (“A . . . basis for a motion to reconsider
would be a controlling or significant change in the law or facts
- 7 -
since the submission of the issue to the Court.”).
with
the
exception
of
one
case,
Precor
has
not
Moreover,
cited
any
controlling precedent that the Court did not itself cite in its
opinion.
The opinion also recounted in detail the evidentiary
record supporting class certification (so much so that the Court
presumes familiarity with those facts here).
As such, Precor
cannot credibly argue that the Court disregarded relevant facts
or failed to recognize controlling authorities.
Nonetheless, Precor asserts that the Court committed three
manifest errors of law in granting Plaintiffs’ Motion for Class
Certification.
The Court addresses the claimed errors in the
order of logical antecedence.
It thus first examines how the
fact that the touch sensor does not uniformly fail for all users
at all times affects class certification.
remaining
errors
that
Precor
raises
It then discusses the
–
those
relating
to
proximate causation and damages.
A.
Spotty Failures
As it had in all its previous briefs, Precor stresses that
the touch sensors perform differently for different individuals
depending on their “individual physiology” and the heart rate
system that they use.
Precor argues that this means that “each
member [must] be tested on each accused machine to determine
whether or not that particular heart rate system is adequate for
them given their individual:
1) age; 2) body mass or weight; 3)
- 8 -
cardio-physiology; 4) fitness level; 5) medical history; 6) how
they grip the handles and move their bodies; and 7) whether a
problem
exists
exercise.”
with
normal
exercise
or
only
with
vigorous
ECF No. 176 at 17.
Not for the first time, the Court rejects such an argument.
In its Order granting Plaintiffs leave to amend their Complaint,
the Court explained why neither the physiological differences
nor the variations between the touch sensor systems defeat the
class claims:
The fact that by Precor’s own testimony, the majority
of subjects experienced inaccurate heart rate readings
means
that
Precor
cannot
rely
on
individual
differences
to
account
for
the
differences
in
performance.
Insofar as Plaintiffs are alleging that
Precor misrepresented that the touch sensors work
“whether you walk or run,” Precor cannot rely on “the
type and intensity of the exercise performed” to
excuse the inaccurate readings.
Finally, since
Garrett tested the two touch sensor systems that are
present in all five of the accused products, Precor
cannot claim that “the heart rate system included in
the machine” determined the result.
See, Mednick v. Precor, Inc., No. 14 C 3624, 2016 U.S. Dist.
LEXIS 132038, at *18-22 (N.D. Ill. Sep. 27, 2016).
The Court again provided a lengthy discussion on the issue
in its order granting class certification.
U.S. Dist. LEXIS 37694, at *15-19, 35.
See, Mednick, 2017
Based on the evidentiary
record, the Court concluded that:
If Precor’s touch sensor monitors do not work, then it
appears that they do not work for the majority of
individuals, not just a few who happen to have unusual
- 9 -
physiologies.
Plaintiffs also correctly point out
that characteristics like age, height, weight, and
medical condition do not change just as a user
increases
his
moving
speed.
The
physiological
differences across individuals thus cannot explain why
the touch sensor works at low speeds but not at higher
ones for the same individuals.
Id. at *35.
Given
cannot
the
raise
Court’s
the
different result.
same
prior
disposal
argument
yet
of
the
again
and
issue,
hope
Precor
for
a
The Court incorporates what it has said on
the matter previously, coupled with the principle that “motions
to reconsider are not appropriate vehicles to advance arguments
already rejected by the Court,” to turn back Precor’s attempt to
reverse the Court’s prior ruling.
Schilke, 758 F.Supp.2d at 554
(“[B]ecause judicial opinions are not intended as mere first
drafts, subject to revision and reconsideration at a litigant’s
pleasure, motions to reconsider are not appropriate vehicles to
advance
arguments
already
rejected
by
the
Court. . . .”)
(quoting Quaker Alloy Casting Co. v. Gulfco Indus., Inc.. 123
F.R.D. 282, 288 (N.D. Ill. 1988) and Zurich Capital Mkts., Inc.
v.
Coglianese,
383
F.Supp.2d
1041,
1045
(N.D.
Ill.
2005))
(internal citations and quotation marks omitted).
To the extent Precor brings anything new, it now seems to
want to discredit its own expert’s study.
In its reply brief,
Precor urges the Court to look at its warranty records rather
than “what test data shows.”
ECF No. 181 at 11.
- 10 -
According to
Precor,
“warranty
complaints
were
made
by
less
than
1%
of
purchasers of any of its handle touch heart rate equipment.”
Id.
Such records “directly contradict[] Plaintiffs’ assertions
that the heart rate systems do not work for the majority of
users,
regardless
conditions.” Id.
of
what
test
data
shows
under
those
test
Precor thus seems to assume that, regardless
of what its own test data shows, if a user did not make a
warranty claim, then the heart rate monitor must have worked for
them.
However, customers may be unhappy about the touch sensors
and yet not make warranty claims for any number of reasons.
Such an inference is borne out by both common sense and the
evidence
adduced.
For
one,
Precor
received
many
customer
complaints about the heart rate monitor, apparently in a number
that
exceeded
the
warranty
claims.
See,
Mednick,
Dist. LEXIS 37694, at *11; ECF No. 149 at 3.
2017
U.S.
For another,
Precor concedes that class representative “Bayer never made a
warranty claim or report.”
ECF No. 181 at 11.
testified that his heart rate monitor did not work.
Yet, Bayer
See, ECF
No. 149, Ex. 17 (Bayer’s Dep.), at 71:7-10 (“My Precor 2.3, the
heart rate monitor did not work properly and I paid more than I
should have for it. . . .”), 78:7-15 (stating the basis for his
belief that “this product does not work properly”).
In short,
since customers may forego warranty claims for reasons other
- 11 -
than that the heart rate monitors worked perfectly, the small
number of warranty claims is no reason for the Court to rescind
its prior ruling.
Finally, Precor persists in pressing that Plaintiffs have
not
provided
first
answers
certification
to
the
questions
opinion.
As
raised
may
be
in
the
recalled,
Court’s
these
questions revolved around the issue of whether the unreliability
of
the
touch
sensors
was
due
to
“human
error”;
“external
factors” like the user’s age, body mass, or weight; the type of
machine
being
used;
the
specific
user’s average rate of exercise.
heart
rate
system;
or
the
See, Mednick v. Precor, Inc.,
2016 U.S. Dist. LEXIS 75582 at *21-22; supra Section I.
The
most
questions.
recent
certification
opinion
answered
those
The Court repeats itself here only for the sake of
completeness.
First, any “human error” leading to the heart
monitor not working is neither idiosyncratic nor due to human
failings alone.
*34-35
See, Mednick, 2017 U.S. Dist. LEXIS 37694, at
(“[P]articipants
in
Garrett’s
study
were
given
[]
instructions on how to use the touch sensor heart rate monitors.
Yet, they still failed to get accurate heart rate measurements
as
they
began
to
run.
This
suggests
that
either
following
Precor’s instructions does not actually improve the performance
of the touch sensor, or that the instructions are so difficult
to follow that the majority of users cannot adhere to them.”).
- 12 -
Second,
external
factors
involving
individual
physiological
differences do not explain the more-than-50% failure rate at
high running speeds.
See, id. at *35.
Third, the type of
machine being used no longer varies, as the class products have
been cut down to just treadmills.
that
the
Polar,
different
and
heart
Salutron)
population at large.
rate
work
Fourth, there is no evidence
monitoring
differently
systems
for
(Alatech,
Precor’s
See, id. at *7-10, 15-19.
user
Last, there is
nothing to indicate that using a treadmill at a speed that it is
designed to be able to handle, i.e., in the vicinity of 6 mph,
is abnormal, atypical, or outside the range of how a user may
expect their heart rate monitor to function.
See, id. at *41-
44.
In sum, the Court finds no manifest error of law in its
treatment
Simply
of
put,
the
heart
that
the
rate
heart
monitors’
rate
spotty
monitor
failure
performance
rates.
is
not
uniform across the class is not by itself a reason to deny
certification.
672-74
(7th
stating
false
that
or
treatment,
See, Mullins v. Direct Dig., LLC, 795 F.3d 654,
Cir.
2015)
“whether
misleading
even
if
(affirming
the
is
[the
a
class
[defendant’s]
certification
representations
common
question
suitable
accused
product]
Instaflex
joint discomfort for some consumers”).
- 13 -
for
and
were
class
relieved
B.
Proximate Causation
Precor next complains about the Court’s proximate causation
analysis.
Precor
acknowledges
that
the
Court
issue at length in its certification order.
addressed
the
See, ECF No. 176 at
10-11; Mednick, 2017 U.S. Dist. LEXIS 37694, at *23-33.
Still,
the company asserts that because class members’ “reasons for
purchasing
their
treadmills
varied
error to certify the class.
widely,”
it
was
ECF No. 176 at 13-14.
manifest
That is,
because individual inquiries into why a class member bought a
treadmill are needed to weed out those “who were not deceived by
the heart rate graphics on the Precor treadmills,” the Court
abused its discretion in permitting classwide proceeding.
Id.
at 13.
The Court disagrees.
the
Seventh
Circuit’s
As it stated in its prior opinion,
decision
in
Suchanek
disposition of the issue in this case.
Dist. LEXIS 37694, at *31-33.
detail
so
as
committed.
to
satisfy
guides
the
See, Mednick, 2017 U.S.
The Court reviews that case in
Precor
that
no
error
of
law
was
The plaintiffs in Suchanek brought a class action
complaining that the defendant marketed its coffee pods in a
misleading manner so as to deceive consumers into thinking that
the
pods
rather
were
than
just
like
containing
the
competitor’s
undesirable
Suchanek, 764 F.3d at 752-54.
instant
high-quality
pods
coffee.
See,
As in this case, the alleged
- 14 -
misrepresentations in Suchanek were found on the product itself,
and,
as
whether
in
this
“the
case,
[product]
reasonable
consumer
member.”
Id.
at
is
the
Seventh
packaging
common
756-58.
to
Circuit
was
the
However,
determined
likely
claims
the
to
of
that
mislead
every
district
a
class
court
had
refused to certify the class on the ground that Precor here
advances for the Court to undo class certification, namely that
“individualized inquiries on causation” are required.
Id. at
759.
The Seventh Circuit reversed.
It held that the lower court
committed an error of law when it denied certification.
Suchanek, 764 F.3d at 759.
See,
As the Seventh Circuit stated, if
individual inquiries necessitated denial of class proceedings,
then “it would never be possible to certify a consumer class
action.” Id. at 752.
But such a result would run against prior
teachings of both the Seventh Circuit and the Supreme Court.
See, Pella Corp. v. Saltzman, 606 F.3d 391, 393 (7th Cir. 2010)
(“While
courts
consumer
must
fraud
carefully
class
consider
actions
present
before
granting
problems
that
certification,
there is not and should not be a rule that they never can be
certified.”); Amchem Prods. v. Windsor, 521 U.S. 591, 625 (1997)
(“Predominance is a test readily met in certain cases alleging
consumer or securities fraud. . . .”); see also, McLaughlin on
Class Actions § 5:54 (“[I]n most contexts individuals choose
- 15 -
consumer
goods
or
services
based
on
disparate
knowledge
and
varied beliefs and reasons.”) (as quoted in Suchanek v. Sturm
Foods, Inc., 311 F.R.D. 239, 255 (S.D. Ill. 2015)).
The Seventh Circuit further explained that a class may be
certified despite some class members not having been harmed by a
defendant’s misrepresentation.
See, Suchanek, 764 F.3d at 757-
58 (“If the court thought that no class can be certified until
proof exists that every member has been harmed, it was wrong.”).
The
court
distinguished
between
“class
members
who
were
not
harmed and those who could not have been harmed.” Id. at 758
(internal quotation marks omitted).
If class members could not
have
could
been
harmed
–
because
they
not
have
seen
the
misrepresentations or because some other element of the statute
relied on for liability was not met – then this would be a
reason to refuse classwide treatment.
See, id.
But the same
reasoning does not hold when class members were not, but could
have been, harmed.
purchasers
that
See, id. at 758 (explaining that “in-store
were
exposed
to
the
allegedly
deceptive
packaging could have been injured by it, even if it turns out
later that a few were not.
This was not a legitimate basis for
denying certification.”).
Precor here complains only about class members who were not
harmed.
In its brief, Precor lists six categories of purchasers
who it says “were not deceived by the heart rate graphics on the
- 16 -
Precor treadmills at issue.”
added).
focus
See, ECF 176 at 13-14 (emphasis
These include “Purchasers who did not see, notice or
on
the
challenged
graphics
before
their
purchase”;
“Purchasers who only intended to walk on the treadmills, using
them
at
highly
low
speeds
accurate”;
decision
for
monitoring
where
and
reasons
the
heart
“Purchasers
completely
feature.”
Id.
As
rate
who
made
unrelated
these
monitors
to
their
the
are
. . .
purchasing
heart
representative
rate
categories
make clear, these are people who could have been injured but,
for one asserted reason or another, turned out unharmed.
Put
differently, the presence of such consumers does not require the
Court to decertify the class because, while to show that the
people
on
Precor’s
list
were
or
were
not
harmed
requires
individualized proof, to show that they could have been harmed
requires
only
common
evidence.
They
require
looking
matters like “Were the graphics present to be noticed?
the treadmills have been used at higher speed?
into
Could
Is it plausible
that the heart rate monitoring feature is one of the reasons for
choosing a particular treadmill?”.
In
Precor’s
addition,
the
people
representations
Plaintiffs.
who
are
could
not
have
confined
been
to
harmed
the
by
named
This makes Plaintiffs’ cause of action like that
found in Suchanek and unlike the cases relied on by Precor.
See,
Suchanek,
764
F.3d
at
758
- 17 -
(distinguishing
Thorogood
v.
Sears, Roebuck & Co., 547 F.3d 742, 747 (7th Cir. 2008) and
Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) on
the ground that “this is not a case where few, if any, of the
putative
class
members
share
the
named
representative’s
grievance against the defendant”).
Here, the evidence shows that the named Plaintiffs are not
atypical
in
claiming
representations
that
into
they
buying
were
misled
treadmills
malfunctioning heart rate monitors.
by
with
Precor’s
sporadically
For one, Precor’s internal
records indicate that the heart rate monitoring feature was an
important feature for many users.
No. 149, Ex. 2, 3, & 6.
See, ECF No. 149, at 2-3; ECF
For another, the nature of the heart
rate monitoring technology was such that whether it would work
for
a
particular
user
is
generally
unknown
at
the
point
of
purchase, where the consumers were exposed to Precor’s allegedly
deceptive advertisement.
Typical
may
have
consumers,
stepped
on
like
the
the
named
treadmills
getting a heart rate measurement.
class
and
seen
representatives,
that
they
were
However, unless they had some
other heart rate monitor on hand to corroborate the reading,
they
likely
received
is
cannot
tell
correct.
whether
the
Likewise,
measurement
regardless
of
they
just
whatever
disclaimers Precor provided (which were generally not given at
the point of sale), a typical user is not likely to know, say,
- 18 -
whether the thickness of the skin on his hands or his heart rate
amplitude was such that the touch sensors would have difficulty
measuring his heart rate.
See, Mednick, 2017 U.S. Dist. LEXIS
37694, at *33-34 (“As Plaintiffs point out, the disclaimers are
not provided at the point of sale.
It is possible, therefore,
that the disclaimers do not nullify the effect of any alleged
misrepresentations on the reasonable consumer.”); ECF No. 164 at
7 (drawing attention to the fact acknowledged by Precor’s own
expert that “one cannot know the amplitude of an individual’s
heart rate at their hands without hooking them up to a machine
and running a test”) (internal quotation marks omitted).
As
such, insofar as Precor’s representations (or omissions) convey
that the touch sensors accurately measure one’s heart rate, they
may mislead the reasonable consumer.
Because Suchanek is directly on point, Precor recognizes
that
it
must
distinguish
the
case
to
have
any
prevailing on the Court to reconsider its order.
effort to distinguish Suchanek falls flat.
chance
at
Yet Precor’s
Precor can only say
that the Seventh Circuit did not hold that the district court
must certify the class on remand.
While that is true, it does
not mean that the court of appeals did not provide any guidance
in its opinion.
As with many precedential decisions, the court
of appeals set principles that this Court follows in applying
the law to the particular facts before it, even if the higher
- 19 -
court did not itself reach the factual application.
Indeed, if
any more proof is needed as to what those principles compel, the
district court certified the class upon remand.
See, Suchanek,
311 F.R.D. at 264.
Even
weaker
different
from
still,
Suchanek
Precor
because
claims
the
that
coffee
this
pods
in
case
is
Suchanek
contained “conspicuous misrepresentations,” while “the present
case involves very small graphics, in a discrete area on a very
large machine.”
ECF No. 176 at 15.
The Court does not see why
this is a difference that necessitates decertification of the
class.
affects
At
their
objective,
Ex. 20.
best,
the
size
of
materiality.
reasonable
the
But
person
alleged
materiality
standard.
misrepresentations
is
See,
judged
ECF
on
No.
an
149,
As the Court previously explained, this means that the
issue is resolvable with classwide proof and should be left to
the merits stage of the case.
LEXIS 37694, at *22.
See, Mednick, 2017 U.S. Dist.
It does not affect class certification.
Other cases that Precor cites likewise do not detract from
the power of Suchanek.
Many of them are not binding on this
court and are unpersuasive to boot.
For example, Williams v.
Ford Motor Co., 192 F.R.D. 580 (N.D. Ill. 2000), In re Sears,
Roebuck & Co. Tools Mktg. & Sales Practices Litig., Nos. MDL1703, 05 C 4742, 05 C 2623, 2007 U.S. Dist. LEXIS 89349 (N.D.
Ill. Dec. 4, 2007), Stephens v. Gen. Nutrition Cos., No. 08 C
- 20 -
6296, 2010 U.S. Dist. LEXIS 126008 (N.D. Ill. Nov. 23, 2010),
and Lipton v. Chattem, Inc., 289 F.R.D. 456 (N.D. Ill. 2013),
are all district court decisions that predate Suchanek.
Each
seems to endorse the proposition – since then rejected by the
Seventh Circuit – that “no class can be certified until proof
exists that every member has been harmed.”
at 757.
Suchanek, 764 F.3d
Such an approach would obliterate the class action as a
mechanism
for
vindicating
claims
of
consumer
fraud,
and
the
Court cannot follow it.
The two cases that either control this Court or postdate
Suchanek are distinguishable.
First, Siegel v. Shell Oil Co.,
612 F.3d 932 (7th Cir. 2010), is the one case that the Court did
not discuss in its certification order that Precor cites in the
Motion
for
Reconsideration.
The
omission
is
not
outcome-
determinative.
The plaintiff in Siegel was not complaining that
he
by
was
misled
alleged
that
customers.
the
the
defendant’s
defendants
Id. at 933-34.
advertising.
colluded
to
Instead,
price
gouge
he
their
The test for proving fraud in such
an instance is different from what is required in this case.
See,
id.
at
defendants’
935
(stating
prices
“(1)
that
violate
Siegel
public
has
to
policy;
show
that
the
(2)
[are]
so
oppressive that the consumer has little choice but to submit;
and (3) cause consumers substantial injury” – elements not found
- 21 -
in this matter).
Siegel thus offers little guidance to the
matter at hand.
Second, Langendorf v. Skinnygirl Cocktails, LLC, 306 F.R.D.
574
(N.D.
Ill.
2014),
shortly after Suchanek.
particular
class
is
a
case
from
this
district
decided
The court there refused to certify the
action
before
it
because
the
plaintiff
“produced no evidence to show that causation will be defeated
only as to ‘a few’ class members.”
original).
As
discussed
supra,
Id. at 583 (emphasis in
the
Court
Plaintiffs here have adduced such evidence.
determined
that
There is thus no
inconsistency between the Court’s ruling and Langendorf.
Ultimately, despite the label of its argument, Precor seems
to be pressing for more than just proximate causation.
Instead,
Precor appears to argue for actual reliance – in essence, that
class members must have been persuaded by the misrepresentation
in
making
their
purchasing
decisions
consumer fraud claim must fail.
or
else
Plaintiffs’
This cannot be correct, as
actual reliance is not an element of the relevant consumer fraud
statutes.
See, ECF No. 149, Ex. 20; Connick v. Suzuki Motor
Co., 174 Ill. 2d 482, 501 (1996) (stating that under Illinois
law
“Plaintiff’s
consumer fraud”).
reliance
is
not
an
element
of
statutory
As such, the Court finds no error in having
declined to adopt Precor’s interpretation of the law.
- 22 -
C.
Damages
Lastly, Precor dredges up an argument that it raised in
full previously.
In its brief opposing class certification,
Precor argued that Plaintiffs’ damages model does not satisfy
Comcast,
133
S.Ct.
at
1433,
because
“class
members
are
not
deprived of all value as set forth in the damage theories of
Plaintiffs’
damage
theory
(emphasis in original).
rejected it.
48.
This
expert.”
ECF
No.
158
at
31-32
The Court analyzed that argument and
See, Mednick, 2017 U.S. Dist. LEXIS 37694, at *44should
suggest
to
brought again will be futile.
Precor
that
the
same
argument
See, Schilke, 758 F.Supp.2d at
554.
The Court nonetheless devotes a few words to the issue.
First,
Precor
has
not
provided
the
Court
with
any
binding
authority which holds that if a damages expert advocates for a
full refund damages model (on the theory that class members got
no
value
from
the
complained-of
product,
here
heart
rate
monitors) when a partial refund model may be more appropriate
(because
the
heart
rate
monitors
sometimes
gave
readings), then a court must deny class treatment.
accurate
In place of
such authorities, Precor relies on out-of-circuit district court
cases.
While the Court gives its sister courts all due respect, it
cannot adopt wholesale their approach where their reasoning is
- 23 -
inapposite to the case at hand.
For example, Precor cites the
central district of California case of In re POM Wonderful, LLC,
No. ML 10-02199 DDP (RZx), 2014 U.S. Dist. LEXIS 40415 (C.D.
Cal.
Mar.
25,
2014).
The
court
in
that
case
applied
such
exacting scrutiny that it rejected both a full refund model and
a partial refund model (what it called a “price premium model”).
See, id. at *11-22.
The court did so because it thought that a
full refund model “depends upon the assumption that not a single
consumer
received
a
single
product.
Id. at *14 n.2.
benefit”
from
This is incorrect.
the
defendant’s
If a full refund
model indeed depends on such a stringent assumption, then a full
refund can never be an appropriate measure of damages.
As long
as a defendant can show that a single class member – however
idiosyncratic in his preferences or unique in his circumstances
– received a single benefit, however slight, then the assumption
fails and the model must be tossed.
The court further rejected
a partial refund model because it found the expert’s testimony
supporting
that
measure
of
damages
to
be
inadmissible
Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993).
n.7.
under
Id. at *22
Precor did not raise a Daubert challenge to Plaintiffs’
expert testimony in this case, and the Court declines to subject
the testimony to that review sua sponte.
v.
Int’l
Paper
Co.,
831
F.3d
919,
See, Kleen Prods. LLC
922
(7th
Cir.
2016)
(“Defendants did not challenge Purchasers’ experts under Daubert
- 24 -
and Federal Rule of Evidence 702, and so we accept their reports
for what they are worth at th[e] [class certification] stage.”).
In short, the Court does not find that In re POM Wonderful
requires reversal of its certification order.
Second, the Court is more persuaded by the approach the
district court in Suchanek took after the case was remanded.
The court there reasoned that “if there was ever a case where
this theory [allowing for a full refund] was appropriate,” the
matter before the court “may be it.”
at 257-58.
See, Suchanek, 311 F.R.D.
Nonetheless, the court held that “[t]o the extent
that a partial refund turns out to be the correct measure of
damages, the [plaintiffs’ proffered] Retail Damages model could
simply be offset.”
Id. at 259.
The court thereupon certified
the class as to liability, even though it remained unresolved
whether
“each
class
partial refund.”
This
Court
member
will
receive
a
full
refund
or
a
Id. at 259, 264.
followed
the
same
approach
Plaintiffs’ class to determine liability.
in
certifying
While it thought that
a partial refund model was appropriate to the case, the Court
explained how a simple modification or “offset” to Plaintiffs’
damages model could return such a calculation.
2017 U.S. Dist. LEXIS 37694, at *47-48.
See, Mednick,
The Court does not see
why it should deny certification merely because Plaintiffs may
choose to make that modification (instead of, say, continuing to
- 25 -
press that a spottily malfunctioning heart rate monitor has zero
value because consumers put a large premium on reliability).
Plaintiffs still have to prove damages during the merits stage
of the case, so to the extent that Precor wants to challenge the
final damages model, it still has the opportunity to do so.
As with its previous arguments, Precor has not convinced
the Court that it made a manifest error of law.
The company did
not scale the uphill battle it sets for itself, and the Court
reaffirms
its
finding
that
Plaintiffs’
IV.
class
action
may
be
CONCLUSION
certified.
For the reasons stated herein, Defendant Precor’s Motion
for Reconsideration [ECF No. 174] is denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: June 16, 2017
- 26 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?