DZIELAK et al v. WHIRLPOOL CORPORATION et al

Filing 282

OPINION. Signed by Judge Kevin McNulty on 12/20/2017. (JB, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CHARLENE DZIELAK, SHELLEY BAKER,
FRANCIS ANGELONE, BRIAN MAXWELL,
JEFFERY REID, KARl PARSONS,
CHARLES BEYER, JONATHAN COHEN,
JENNIFER SCHRAMM, and ASPASIA
CHRISTY on behalf of themselves and all
others similarly situated,

Civ. No. 2:12-89 (KM)(JBC)

OPINION

Plaintiffs,
v.
WHIRLPOOL CORPORATION, SEARS
HOLDINGS CORPORATION, THE HOME
DEPOT, INC., FRY’S ELECTRONICS,
INC., APPLIANCE RECYCLING CENTERS
OF AMERICA, INC., and LOWE’S HOME
CENTER, LLC,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

This motion for class certification arises from the sale of Maytag washing
machines that bore ENERGY STAR® (“Energy Star”) labels signifying that they
met federal standards of water and electrical efficiency. Defendants had already
been se]ling Maytag washing machines with the Energy Star label when, in May
2012, the U.S. Department of Energy determined that those particular models
did not actually meet the Energy Star efficiency standards. Plaintiffs seek to
represent a putative class whose members allegedly suffered uniform harm
because they all purchased washers improperly labeled with the Energy Star
logo. They claim two harms: (1) that the price of the washers was inflated
1

because consumers pay a premium for Energy Star qualified machines and
(2) that each purchaser “paid more money in additional water and energy costs
to operate his or her Mislabeled Washing machine” than he or she would have
if the washers had actually met the Energy Star standards. (2AC

¶

118).’

This opinion addresses plaintiffs’ renewed motion for class certification.

Citations to the record will be abbreviated as follows:
“MTD

Op.”

“2AC”

=

Opinion on Defendant’s Motion to Dismiss the First Amended
Consolidated Complaint (ECF no. 78)
=

Second Amended Consolidated Complaint (ECF no. 86)

‘Preemption Op.” = Opinion on Motion to Dismiss State Law Claims in 2AC
(ECF no. 127)
“Bursor Decl.” = Declaration of Scott A. Bursor Regarding the Motion to Certify
Class (ECF no. 164)
“Weir Decl.” = Declaration of Cohn B. Weir Regarding the Motion to Certify
Class (ECF no. 167)
Rebuttal Declaration of Cohn B. Weir (ECF no. 184)

“Weir Rebuttal”

=

“Daubed Op.”

Daubert Opinion (ECF no. 236)

=

“P1. Br.” = Memorandum of Law in Support of Plaintiffs Renewed Motion for
Class Certification (ECF no. 24 1-1)
“Home Depot Br.” = Defendant Home Depot USA, Inc.’s Opposition to Plaintiffs
Renewed Motion for Class Certification (ECF no. 251)
“Def. Br.” = Defendant’s Brief in Opposition to Plaintiffs Renewed Motion for
Class Certification (Whirlpool et ai.) (ECF no. 254)
“P1. Reply to Whirlpool” = Reply Memorandum of Law in Support of Plaintiffs’
Renewed Motion for Class Certification (Response to Whirlpool, Lowe’s
Fiy’s, and Sears’ Opposition Brief) (ECF no. 256)
“P1. Reply to Home Depot” = Reply Memorandum of Law in Support of Plaintiffs’
Motion for Class Certification (Response to Home Depot’s Opposition
Brief) (ECF no. 257)
2

I.

BACKGROUND

Familiarity with my earlier opinions (MTD

Op.;

Dauben Op.; Preemption

Op.) is assumed. I canvass here only the facts and procedural history pertinent
to my decision on class certification.
The named plaintiffs, purchasers of Maytag washing machines, are
Charlene Dzielak, Francis Angelone, Shelley Baker, Brian Maxwell, Jeffery
Reid, Kari Parsons, Charles Beyer, Jonathan Cohen, Jennifer Schramm, and
Apasia Christy. (MTD Op. 1; 2AC

¶

8-18). Defendant Whirlpool Corporation

(“Whirlpool”) manufactured the relevant washers. (MTD Op. 1). The remaining
defendants are retailers from whom the plaintiffs purchased the machines:
Lowe’s Home Center, LLC (“Lowe’s”), Sears Holding Corporation (“Sears”), The
Home Depot, Inc. (“Home Depot”), Fry’s Electronics, Inc. (“Fry’s”), and
Appliance Recycling Centers of America, Inc. (“ARCA”). (Id. at 1-2; 2AC

¶11

19-

24).
Each Maytag washing machine at issue in this case bore an Energy Star
label at the time of purchase. (Id. at 2). Energy Star machines must use
approximately 37% less energy and 50% less water than standard models. (Id.
at 4). Thereafter, however, the Department of Energy determined that the
washers at issue did not comply with Energy Star requirements, and the EPA
then disqualified them from the program. (Id. at 2).
The putative class comprises seven subclasses of purchasers in all states
where named plaintiffs bought washers—New Jersey, California, Florida, Ohio,
Indiana, Texas, and Virginia. (P1. Br. 4); (P1. Reply to Whirlpool 13). Plaintiffs
allege two harms: (1) a price premium they attribute to the Energy Star label
and (2) higher water and energy costs than they would have paid had the
washers actually met the Energy Star standards. (Weir Decl.

¶

14-53).

The claims that remain at this stage are as follows:
Count II:

Breach of Express Warranty

Count III:

Breach of Implied Warranty of Merchantability (for NJ, IN,
TX, and VA plaintiffs only)
3

Count IV:

Unjust Enrichment (asserted against retailers only; not
against Whirlpool)

Count V:

New Jersey Consumer Fraud Act, N.J. Stat. Ann.

§

56:8-1, et

seq. (“NJCFA”)
Count VI:

New Jersey Truth-in-Consumer Contract, Warranty, and
Notice Act, N.J. Stat. Ann.

Count VII:

§

56:12-14, etseq. (“TCCWNA”)

California’s Consumer Legal Remedies Act, Cal. Civil Code

§

1750, etseq. (“CLRA”)

Count VIII: California’s Unfair Competition Law, Cal. Bus. & Prof. Code

§
Count IX:

California’s False Advertising Law, Cal. Bus. & Prof. Code

§
Count XI:

17500, etseq. (PAL”)

Florida Deceptive and Unfair Trade Practices Act, Fla. Stat.

§
Count XII:

17200, etseq. (“UCL”)

501.201, etseq. (“FDUTPA”)

Ohio Consumer Sales Practices Act, Ohio Rev. Code Ann.

§

1345.01, etseq. (“OCSPA”)

Count XIII: Indiana Deceptive Consumer Sales Act, Ind. Code Ann.

§

24-

5-0.5-1, etseq. (“IDCSA”)
Count XIV: Texas Deceptive Trade Practices Act, Tex. Bus. & Corn. Code

§

17.41, etseq. (“DTPA”).2

(2AC); (MTD Op.). Plaintiffs now move for class certification under Rule 23(b)(3).
Defendants argue that plaintiffs have not satisfied the requirernents for class
certification.
In prior opinions (MTD Op.; Preemption Op.), I dismissed Count I (violation of
the Magnuson-Moss Warranty Act) in its entirety, Count III (implied warranty of
merchantability) under California, Florida, and Ohio law, and Count IV (unjust
enrichment) as against Whirlpool. These claims were not reasserted. Plaintiff Jeffery
McLenna, the sole named plaintiff from Michigan, voluntarily dismissed his claims in
this action, effectively eliminating Count X, under the Michigan Consumer Protection
Act. (ECFn0. 112).
2

4

II.

JURISDICTION

The Court has jurisdiction over this motion for class certification under
the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C.

§ 1332(d), 1453,

171 1-15. CAFA confers jurisdiction on federal courts over certain class actions
in which the matter in controversy exceeds $5 million, exclusive of interest and
costs, and minimal diversity is present, i.e., any defendant’s citizenship is
diverse from that of any plaintiff. Id.
III.

§ 1332(d)(2).

LEGAL STANDARD

The class action is “an exception to the usual rule that litigation is
usually conducted by and on behalf of the individual named parties only.”
Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (citing Califano u. Yamaski,
442 U.S. 682, 700-01 (1979)). Accordingly, a plaintiff bears the burden of
affirmatively demonstrating by a preponderance of evidence that her putative
class satisfies the class-certification requirements in Federal Rule of Civil
Procedure 23. Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015).
Importantly, Rule 23 “does not set forth a mere pleading standard.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 351(2011). Rather, the plaintiff must prove
that the Rule 23(a) requirements are met. Comcast, 569 U.S. at 33.
First, to qualify for class certification, a party must demonstrate that the
putative class meets the four requirements set forth in Rule 23(a):
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical
of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a); see Dukes, 564 U.S. at 345. The Rule 23(a) factors are
referred to as numerosity, commonality, typicality, and adequacy of
representation.

5

The Supreme Court has emphasized that it “may be necessary for the
court to probe behind the pleadings before coming to rest on the certification
question” and that certification is proper only if “the trial court is satisfied,
after a rigorous analysis” that Rule 23(a)’s prerequisites have been met.
Comcast, 569 U.S. at 33 (quoting Gen. Tel. Co. of Southwest

ii.

Falcon, 457 U.S.

147, 160-61 (1982)). Such an analysis will “entail some overlap with the merits
of the plaintiffs underlying claim.” Dukes, 564 U.S. at 351.
Second, a plaintiff must satisfy at least one of the three requirements
listed in Rule 23(b). Id. at 345-46. In this action, plaintiffs seek to certify the
class under Rule 23(b)(3), which permits certification when (1) “the questions of
law or fact common to class members predominate over any questions affecting
only individual members,” and (2) “a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.
23(b)(3). The Rule 23(b)(3) analysis of predominance and superiority is more
demanding than the Rule 23(a) analysis. Comcast, 569 U.S. at 34 (citing
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24 (1997)). In particular,
courts have a duty to take a close look at whether common questions
predominate over individual ones. Dukes, 564 U.S. at 362.
In the Third Circuit, Rule 23(b)(3) certification also involves an
independent ascertainability inquiry, which requires a plaintiff to show that
(1) the class is “defined with reference to objective criteria” and (2) there is “a
reliable and administratively feasible mechanism for determining whether
putative class members fall within the class definition.” Byrd, 784 P.3d at 163
(citing Hayes v. V/al-Mart Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013)). The
parties do not seem to dispute this issue, however.
IV.

RULE 23(A) REQUIREMENTS

As stated above, a plaintiff seeking to certify a class first must satisfy
Rule 23(a)’s four requirements: numerosity, commonality, typicality, and
adequacy of representation. All must be proven by a preponderance of the
evidence. Hydrogen Peroxide, 552 F.3d 305, 307 (3d Cir. 2008). Defendants
6

claim that plaintiffs have not met their burden regarding commonality,
typicality, and adequacy. (Def. Br. 11 n.8).3
A. Numerosity

Rule 23(afll) requires a finding that “the class is so numerous that
joinder of all members is impracticable.” That requirement promotes judicial
economy by avoiding onerous (anti-)joinder rules and eliminating the need to
adjudicate numerous similar actions separately. See Marcus v. BMW of N. Am.,
LLC, 687 F.3d 583, 594-95 (3d Cir. 2012). Furthermore, it enhances access to
judicial relief, particularly when individual claims would be uneconomical to
litigate individually, and, where joinder can be easily accomplished, prevents
putative class representatives and counsel from denying members of a small
class from adjudicating their claims individually. Id.
As a general rule, a potential class with as few as forty members may
meet the numerosity requirement. Id. at 595 (citing Stewart

i.’.

Abraham, 275

F.3d 220, 226-27 (3d Cir. 2001)). Nonetheless, Rule 23(a)(1) “requires
examination of the specific facts of each case.” Gen. Tel. Co. of Northwest v.
EEOC, 446 U.S. 318, 330 (1980). Additionally, numerosity is not inferred for
state-specific subclasses simply because there is a nationwide or larger class;
there needs to be state-specific evidence for each subclass. Marcus, 687 F.3d at
585.
Plaintiff has satisfied the numerosity requirement by providing
documentation that approximately 174,974 units of allegedly mislabeled
washers were sold in the seven states during the class period. (Weir Decl.

¶

49);

(Bursor Decl. Ex. 18). Plaintiffs provide data for each individual state, which
allows me to determine that the numerosity requirement is met for each state-

Defendants did not fully brief the Rule 23(a) requirements. Defendants state, in
a footnote, that they dispute commonality, typicaiity, and adequacy but “have not
challenged Plaintiffsj9 ability to meet those requirements here but reserve the right to
do so in the future.” (Def. Br. 11 n.8). Their brief focused almost exclusively on
disputing predominance and superiority.
3

7

specific subclass as well. Therefore, plaintiffs have proven Rule 23(a)’s
numerosity requirement. (Bursor Decl. Exs. 17, 18).
B. Commonality

Rule 23(a)(2) requires a showing of “questions of law or fact common to
the class.” “Commonality requires the plaintiff to demonstrate that the class
members ‘have suffered the same injury.”’ Dukes, 564 U.S. at 349-50 (citing
Falcon, 457 U.S. at 157). The claims must rest upon a “common contention”
that is capable of classwide resolution:
is not the raising of common
What matters to class certification
“questions”—even in droves—but, rather the capacity of a
classwide proceeding to generate common answers apt to drive the
resolution of the litigation. Dissimilarities within the proposed
class are what have the potential to impede the generation of
common answers.
...

Id. at 350 (citing Richard A. Nagareda, Class Certification in the Age of
Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).
Importantly, the commonality requirement does not require that class
members share identical claims. In re Prudential Ins. Co. Am. Sales Practice
Litig. Agent Actions, 148 F.3d 283, 310 (3d Cir. 1998). “[F]actual differences
among the claims of the putative class members do not defeat certification.” Id.
(citing Baby Neal u. Casey, 43 F.3d 48, 56 (3d Cir. 1994)). Commonality is
addressed at a fairly high level of generality and is less stringent than the Rule
23(b)(3) predominance requirement. See Amchem Prods, Inc., 521 U.S. at 609.
What is required is that the named plaintiffs share at least one question
of fact or law with the prospective class. See Rodriguez u. Nat’l City Bank, 726
F.3d 372, 382 (3d Cir. 2013). In fact, “the focus of the commonality inquiry is

Each of the Rule 23(a) requirements, including numerosity, must be met for
each subclass. See Marcus, 687 F.3d at 595. As it happens, plaintiffs have not in all
cases proven that any retailer-specific sub-subclasses, see infra subsections V.A.iii—iv,
would have met Rule 23(a)’s numerosity requirement. For example, plaintiffs have not
demonstrated that the putative class members who purchased a “mislabeled” washing
machine from ARCA in Ohio are “so numerous that joinder of all members is
impracticable.” See Fed. R. Civ. P. 23(a)(1).
8

not on the strength of each plaintiffs claim, but instead is ‘on whether the
defendant’s conduct was common as to all of the class members.”’ Id. (citing In
rePrudential, 148 F.3d at 311).
In this case, there are common questions whose resolution would drive
the resolution of this litigation. Such common questions include whether the
Energy Star mark and advertising material were material to class members’
decisions to purchase the machines; whether the class members paid a price
premium because of the Energy Star label; and whether class members paid
more in energy and water bills because the washers were mislabeled.
Therefore, this putative class satisfies Rule 23(a)’s commonality requirement.
C. Typicality

The Rule 23(a)(3) test for typicality requires that the claims or defenses of
the named plaintiffs are “typical of the claims or defenses of the class.” Fed. R.
Civ. P. 23(afl3). “The typicality requirement is designed to align the interests of
the class and the class representatives so that the latter will work to benefit the
entire class through the pursuit of their own goals.” In re Prudential, 148 F.3d
at 311; see also Rodriguez, 726 F.3d at 376 n.4 (citing Eisenberg v. Gagnon,
766 F.2d 770, 786 (3d Cir. 1985)). Typicality does not require that the putative
class members all share identical claims. In re Warfarin Sodium Antitrust Litig.,
391 F.3d 516, 53 1-32 (3d Cir. 2004). Rather, the typicality requirement, which
tends to overlap with the adequacy and commonality determinations, seeks to
assure that absent class members will be adequately represented. Rodriguez,
726 F.3d at 376 n.4; Eisenberg, 766 F.2d at 786.
In this case, the claims of the representative plaintiffs all arise from the
same allegedly wrongful conduct—the alleged misrepresentation that the
Plaintiffs have made only conclusoiy allegations against the retailers (MTD Op.
32), and have not affirmatively demonstrated that they engaged in a common course of
conduct toward the class. This weighs against a finding of commonality regarding the
retailer defendants. I will address these issues thoroughly during the Rule 23(b)(3)
analysis. See infra subsections V.A—B.

9

washers were Energy Star qualified.6 The claims arise under the same general
legal theories. Overall, while there are some factual differences between the
named plaintiffs’ claims and those of other class members, the named plaintiffs
have claims that are sufficiently typical of the putative class. Therefore, I find
that the putative class satisfies Rule 23(a)(3) typicality.
13. Adequacy of Representation

Rule 23(a)(4) requires that the “representative parties will fairly and
adequately protect the interests of the class.” The adequacy inquiry has two
components designed to ensure that absent class members’ interests are fully
pursued: (1) whether counsel is qualified to represent the class and (2) whether
there are conflicts of interest between named parties and the putative class
they seek to represent. In re Warfarin, 391 F.3d 516 (citing In re Prudential, 148
F.3d at 313).
First, the putative class counsel includes qualified and experienced class
action attorneys who have been involved in similar litigation around the
country. Putative class counsel have pursued this litigation vigorously for
several years. Second, there are no apparent conflicts of interest between the
named plaintiffs and the classes they seek to represent. The named plaintiffs
bought the same washer models as the other class members, and they claim
the same relief that the putative class would receive. As a result, I find that the
class counsel and named plaintiffs will fairly and adequately represent the
interests of the class.
In sum, I find that the putative class satisfies the four threshold Rule
23(a) class-certification requirements of numerosity, commonality, typicality,
and adequacy of representation—at least against Whirlpool. (More about the
retailers later.) I will now evaluate whether plaintiffs satisfy the requirements of
Rule 23(b)(3).

I will address the retailers’ conduct in subsections V.A—B, infra.
10

V.

RULE 23(B)(3) REQUIREMENTS

In addition to satisfying the four Rule 23(a) requirements, a plaintiff
seeking class certification must satisfy at least one of the three requirements
listed in Rule 23(b). In this action, plaintiffs seek Rule 23(b)(3) certification,
which requires (A) “that the questions of law or fact common to class members
predominate over any questions affecting only individual members,” and
(B) that “a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).7 Although the
requirements are distinct, many considerations are relevant to both, so some
overlap in the discussion is unavoidable.
A. Predominance
To be certified as a Rule 23(b)(3) class action, a putative class must
demonstrate that “the questions of law or fact common to class members
predominate over any questions affecting only individual members.” Fed. R.
Civ. P. 23(b)(3). The putative class bears the burden of demonstrating
predominance. Comcast, 569 U.S. at 33-34. “If anything, Rule 23(b)(3)’s
predominance criterion is even more demanding than Rule 23(a).” Comcast,
569 U.S. at 34 (citing Amehem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24
(1997)). Since Rule 23(b)(3) is an “adventuresome innovation,” designed for
situations in which “class-action treatment is not clearly called for,” courts
have a duty to take a “close look” at whether common questions predominate
over individual ones. Id. (citing Dukes, 564 U.S. at 362).
The predominance analysis may overlap with or resemble a merits
inquiry. Comcast, 569 U.S. at 33-34; Dukes, 564 U.S. at 351. “The
predominance inquiry is especially dependent upon the merits of a plaintiffs

7
This Circuit has given particular prominence to a third element: (C) an
independent “ascertthnability” inquiry to determine if the class can be defined and
determined for the purposes of class litigation. Byrd, 784 F.3d at 163. Defendants
chailenge the putative class on predominance and superiority, but do not challenge
ascertainability, perhaps because the identities of customers and the washer models
they purchased are available from sales and warranty records.

11

claim, since the nature of the evidence that will suffice to resolve a question
determines whether the question is common or individual.” In re Constar Int’l
Inc. Sec. Litig., 585 F.3d 774, 780 (3d Cir. 2009) (quotation marks omitted); see
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016). The Third
Circuit recently explained:
in determining whether issues that are “susceptible to generalized,
class-wide proof’ are “more prevalent or important,” a district court
is called to “formulate some prediction as to how specific issues
will play out
in a given case[.]” The court cannot rely on a mere
“threshold showing” that a proposed class-wide method of proof is
“plausible in theory.” Rather, the court’s Rule 23(b)(3) finding
necessarily entails some analysis of whether the proposed classwide evidence will actually be sufficient for the class to prevail on
the predominant issues in the case. If class-wide evidence is
lacking, the court cannot be adequately assured that
individualized evidence will not later overwhelm the case and
render it unsuitable for class-wide adjudication. This analysis will
often resemble a merits determination, in that it relates to
plaintiffs’ ability to prove the elements of their claims.
...

Hamish v. Widener Univ. Sch. of Law, 833 F.3d 298, 304-05 (3d Cir. 2016)
(internal citations omitted).
Rule 23(b)(3) sets out a list of four non-exhaustive favors to consider
during the predominance and superiority inquiries:
(A) the class members’ interests in individually controlling the
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). I apply those factors to this case.
First, each class member has little interest in “individually controlling”
an action because each claim is small in relation to the cost of prosecuting a
lawsuit.

A class action allows claims such as these to proceed when each

claimant’s alleged loss is too small to be economically litigated individually. See
In re Gen. Motors Corp. Pick-Up Tmck Fuel Tank Prods. Liability Litig., 55 F.3d
12

768, 783-84 (3d Cir. 1995). In such a case, a class action is the “only rational
avenue of redress for many class members.” In re Prudential, 148 F.3d at 316;
see also Amchem Prods., 521 U.S. at 617.

Second, the parties have not identified other litigation by the class
members. There is pending litigation against Whirlpool in the Southern District
of New York, filed nearly four years after this action was instituted. Famular v.
Whirlpool Corp., No. 16-cv-944, 2017 WL 2470844, at *2 (S.D.N.Y. June 7, 2017).
Although the claims are related, the classes do not overlap and they seek relief
under different states’ laws.8
There are several challenges, however, related to predominance, the
desirability of concentrating the litigation in this forum, and the likely
difficulties of managing a class action. In that context, defendants raise several
issues: (i) whether plaintiffs pose a cognizable theory of injury that is supported
by class-wide evidence; (H) whether plaintiffs’ damages models are tied to their
theory of liability and can measure damages on a class-wide basis; (Hi) whether
key differences in state law overwhelm common issues and thus render class
treatment unmanageable; and (iv) whether individualized facts predominate
over common facts.
In this section, I will discuss each of these predominance/superiority
issues. The first two relate to all claims, but especially the central claims
against Whirlpool. The third and fourth, however, prominently implicate the
claims against retailers in the several states, and suggest that such claims
against retailers are not sustainable on a class basis.

The plaintiffs in the Famular case were members of this putative class until
plaintiffs’ counsel voluntarily narrowed the proposed class by seeking certification in
only seven states. 2017 WL 2470844, at *2. Plaintiffs from New York, Tennessee,
Maryland, South Dakota, South Carolina, Illinois, Pennsylvania, Kentucky, and
Oklahoma then brought a putative class action on the same grounds against
Whirlpool, Lowe’s, Home Depot, and Sears. Id. at *1_2. Defendants’ motion to dismiss
was granted in part. Id. at *10. Lowe’s, Home Depot, and Sears were all terminated
from the Famular case; only claims against Whirlpool remain. Id.
8

13

i.

Cognizable Theory of Injury

Defendants argue that neither of the plaintiffs’ theories of injury is
cognizable. In particular, they contend that (a) plaintiffs’ price-premium theory
is not cognizable under the laws of several states, and (b) plaintiffs’ energyexpense theory of injury is not susceptible of proof with common, class-wide
evidence.
a. Price-Premium Theory
Defendants’ attack on plaintiffs’ price-premium theory centers on a
comparison of this case with Hamish v. Widener University School of Law, 833
F.3d 298 (3d Cir. 2016), and Dugan v. WI Fridays, Inc.,

—

A.3d

—,

2017 WL

4399352 (N.J. Oct. 4, 2017). I-famish and Dugan, applying New Jersey law,
both denied class certification on price-inflation theories.
In I-famish, a putative class alleged that Widener University School of
Law published misleading statistics about its graduates’ employment. 833 F.3d
at 301. Widener, the putative class argued, was able to charge “inflated” tuition
because those misleading statistics enhanced its position within the tuition
market. Id. at 302-03. The Third Circuit affirmed the district court’s denial of
class certification because a price-inflation suit pursuing out-of-pocket
damages is not a cognizable theory under New Jersey or Delaware law. Id. at
309-13. Hamish does not, however, wholly foreclose class actions based on
price-premium damages theories.
Hamish distinguished between two kinds of price-premium theories:
price-inflation and benefit-of-the-bargain. The price-inflation theory is an
extension of the fraud-on-the-market theory familiar from the securities
context. Id. at 312. A fraud-on-the-market theory permits individuals to sue for
fraud without individualized proof of reliance. The theory incorporates three
presumptions: First, the relevant market must be an efficient one, where
“information important to reasonable investors

...

is immediately incorporated

into stock prices.” Id. at 310 (citing In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1425 (3d Cir. 1997)). Second, the court presumes that a purchaser
14

“did in fact rely on the price of the stock as indicative of its value.” Id. (citing
Zlotnick v. TIE Commc’ns, 836 F.2d 818, 822 (3d Cir. 1988)). Third, a court
satisfied as to presumptions 1 and 2 will then presume that such reliance is
reasonable. Essentially, the fraud-on-the-market theory is “based on the
hypothesis that, in an open and developed securities market,” misleading
statements will affect the share price in a predictable way and therefore
“defraud purchasers of stock even if the purchasers do not directly rely on the
misstatements.” Id. (citing Basic Inc. v. Levinson, 485 U.S. 224, 241-42 (1988)
(quoting Peil v. Speiser, 806 F.2d 1154, 1160 (3d Cir. 1986))).
The plaintiffs in Hamish introduced expert testimony that the market
was efficient, in that tuition at Widener and elsewhere responds to public
information such as employment statistics. Id. at 3 11-12. The Hamish
plaintiffs argued that Widener published misleading employment statistics,
that an efficient law-school-tuition market incorporated this information, and
that Widener was thereby empowered to charge more. Id. The problem for the
Hamish plaintiffs was that state courts have held that the ascertainable-loss
and causal-relationship elements of the New Jersey Consumer Fraud Act
(“NJCFA”) cannot be met by this kind of price-inflation theory. Id.; see, e.g.,
Int’l Union of Operating Eng’rs Local No. 68 Welfare Fund v. Merck & Cc., 929
A.2d 1076 (N.J. 2007) (per curiam); N.J Citizen Action v. Schering-Plough Corp.,
842 A.2d 174, 178-79 (N.J. Super. Ct. App. Div. 2003).
In Dugan

i’.

TGI Fridays, Inc., the New Jersey Supreme Court held that

class certification was not appropriate based on a price-inflation theory.
—

A.3d

—,

2017 WL 4399352 (N.J. Oct. 4, 2017). The Dugan plaintiffs argued

that TGI Fridays, the restaurant chain, violated the NJCFA by failing to
disclose the prices charged for beverages. Id. at *4 They claimed that TOl
Fridays was able to charge each member of the class, across the board, $1.72
more than the “fair” or “reasonable” prices that the market would bear if the
prices had been disclosed on the menu. Id. The New Jersey Supreme Court

15

recognized this as a price-inflation theory of damages, cited Hamish, and held
that class certification was not appropriate. Id. at *18.
But if price-inflation or fraud-on-the-market class actions are foreclosed
under New Jersey law, benefit-of-the-bargain class actions nevertheless remain
viable. See Hamish, 833 F.3d at 308-309 & n.5.
A benefit-of-the-bargain claim, by contrast [with fraud on the
market], is contract-like. We look to the injuries that resulted from
the defendant’s having not lived up to the misrepresentation, and
the goal is to place the plaintiffs in the position that they would
occupy if the misrepresentation were true.... A benefit-of-thebargain class action logically does not entail proving that all class
members were induced to pay extra (a reliance-based theory) or
even that the defendant was empowered to charge them all extra
(the price-inflation theory ....). Instead, it entails proving that class
members all reasonably expected more from the bargain than what
they received.
Id. (internal citations omitted). In Hamish, the Third Circuit itself contrasted its
holding with that of Smajlaj v. Campbell Soup Co., which approved a benefit-ofthe-bargain theory.
In Smajlaj, a putative class action survived a motion to dismiss on a
benefit-of-the-bargain theory under the NJCFA. 782 F. Supp. 2d 84, 97-103
(D.N.J, 2011). In that case, plaintiffs alleged that they were misled into
thinking that more expensive “less-sodium” soups contained significantly less
sodium than the cheaper regular tomato soup. As a result, consumers allegedly
were willing to pay more for the “less-sodium” soups. Id. at 100. In fact,
however, Campbell’s “25% Less Sodium Tomato Soup” allegedly contained the
same amount of sodium per serving as its regular tomato soup. Id. at 90.
As noted in Smajlaj, the New Jersey Supreme Court has repeatedly and
explicitly endorsed the benefit-of-the-bargain theory under the NJCFA. Id. at
99; see, e.g., Thiedemann v. Mercedes-Benz USA, LLC, 872 A.2d 783 (N.J.
2005); Thirst z1’. Einstein Moomjy, Inc., 860 A.2d 435 (N.J. 2004). Under that
theon’, the NJCFA’s ascertainable-loss element “requires nothing more than
16

that the consumer was misled into buying a product that was ultimately worth
less to the consumer than the product he was promised.” Smajlaj, 782 F. Supp.
2d at 99.
The plaintiffs have made a viable Smajlaj-style benefit-of-the-bargain
case in their second amended complaint. Each plaintiff allegedly “saw the
ENERGY STAR® labels prior to and at the time of purchase, and understood
them as a representation and warranty by both the manufacturer (which
created and affixed the labels) and the retailer (which displayed the labels) that
the machine met the standards of water and energy efficiency established by
the ENERGY STAR® program

... .“

(2AC

¶

100). Each plaintiff “relied on the

representations and warranties in deciding to purchase the washing machine,
and these representations and warranties were part of the basis of the bargain,
in that she would not have purchased the [washing machine] if she had known
that it was not, in fact, ENERGY STAR® compliant.” (2AC

¶

100) (emphasis

added).
In short, there is a distinction to be drawn between the fraud-on-themarket theory rejected by Hamish and the benefit-of-the-bargain theory
endorsed by Smajlaj. The Smajlaj plaintiffs contended that they paid more for
“25% Less Sodium Tomato Soup”—but received soup that did not in fact have
reduced levels of sodium. By analogy, the plaintiffs in this action contend that
they paid more for a washing machine that met the Energy Star criteria (i.e.,
used at least 37% less energy and 50% less water than standard models), but
received a machine that did not meet those Energy Star criteria. That is not a
Hamish fraud-on-the-market theory, but a Smajlaj benefit-of-the-bargain
theory. Therefore, the plaintiffs can pursue their claims on such a theory,
which is not foreclosed by Hamish.9

Defendants cite to California and Indiana cases that reject fraud-on-the-market
and “hypothetical market price damages,” and further assert that no cases from Ohio,
Texas, or Virginia recognize that theory. (Def. Br. 13-14 & n.10). However, as
explained above, plaintiffs do not seek to certify a class based on a fraud-on-themarket or “hypothetical market price damages” theory. Rather, plaintiffs rest their
9

17

Plaintiffs may, without running afoul of that case law, pursue benefit-ofthe-bargain claims for the alleged price premium.
b. Energy-Expense Theory

Defendants also argue that plaintiffs’ energy-expense theory is not
susceptible of proof with common, class-wide evidence, and therefore is not a
cognizable theory of injury. Defendants make three arguments here: (1) DOE
tests do not reflect real-world conditions “and so do not establish that any
Washer will use more waste or energy than the Energy Star logo implied under
real-world conditions”; (2) a determination of energy and water usage requires
evidence of “individual usage habits” such as loads washed per week,
temperature and cycle settings, and local utility rates, all of which are not
common to the class; and (3) permitting both price-premium and energyexpense theories would result in double counting of damages. (Def. Br. 14;
Weir Br. 2325).10 Another, more general potential issue is (4) whether energyexpense damages are common to all class members. I discuss those four
arguments in order.
(1) Defendants’ argument that the Energy Star label does not reflect realworld costs is unavailing. The Energy Star label signifies that the machine
operates with lower utility costs. That is the representation that Whirlpool (and,
allegedly, the retailers, see infra) made, presumably with the expectation that it
would have some meaning to consumers.
The DOE’s tests approximate the difference in energy usage between
different machines. An analogy to miles per gallon (“mpg”) is helpful: Drivers
may drive fast, brake quickly, or frequently idle in traffic; all of these factors
case on a cognizable benefit-of-the-bargain theory of injury. Defendants’ citations to
fraud-on-the-market cases in other states are therefore inapplicable, for the same
reasons that the New Jersey Hamish and Dugan cases are inapplicable.
I also addressed the “double counting” issue at the Daubed stage: “For now, I
will permit the plaintiffs to explore what are potentially alternative measures of
damages. The plaintiffs’ position is appropriate at this stage of the case and raises no
Daubed issue. To the extent the plaintiffs do seek double recovery, the defendants may
raise their argument at a later, more appropriate stage of the case.” (Daubed op. 53).
18

will affect the actual mpg of a car. Therefore, the car manufacturer cannot be
held to the representation that an “eco-friendly” car with “50 mpg efficiency”
will achieve exactly 50 mpg for each driver. Still, standardized efficiency tests
are useful in comparing models, even if an individual’s results will vary.
Irrespective of individual driving habits, a car manufacturer might be guilty of
a misrepresentation if it said the car achieved 50 mpg on efficiency tests while
knowing that it would achieve only 25 mpg on efficiency tests. It could not
excuse its misrepresentation by saying that individual mpg results may vary.
In a similar way, Energy Star machines are represented to use 50% less
water and 37% less energy than standard models. (MTD

op.

4). While

individual water and energy uses will vary depending on individual
circumstances (settings, temperature, utility companies, etc.), Whirlpool
represents that a customer with the “eco-friendly” Energy Star machine will
use less water and energy in comparison to a standard model. Whirlpool
cannot excuse such a misrepresentation by noting that individual water and
energy usage rates vary.
(2) However, the different “individual usage habits” suggests that
common facts may not predominate over individual ones. Many factors
determine the energy and water costs for each putative plaintiff. Plaintiffs used
different temperature and cycle settings, fill levels, and utility companies. The
number of cycles per week varies greatly. For instance, named plaintiff Mr.
Reid used the machine for one load of laundry per week, Ms. Parsons did two
to three loads per week, and Mr. Maxwell did seven to fourteen loads per week.
(ECF no. 279). Plaintiffs have not adequately addressed the numerous factors
that affect each putative plaintiff’s energy and water costs.
One cannot isolate the amount of energy and water each class member
used for his or her washing machine. Consider the “eco-friendly car” analogy: If
customers were over-promised a car that would achieve 50 mpg, each plaintiff
could use the car’s odometer to establish the number of miles driven. Although
different driving styles would affect mpg, the court could determine how many
19

miles each plaintiff drove and thus allocate damages to a reasonable degree of
accuracy. In this case, however, there is no feasible way to approximate, let
alone calculate, individual enerv and water usage. Utility bills do not break
out costs by appliance, the washing machines do not have anything analogous
to an odometer that tracks usage history, and the number of cycles per week
varies widely. Fairly apportioning damages in this case would appear to be an
impossible task. The individual facts involved would predominate over the
common issues affecting the class.
Plaintiffs propose “rough justice”: a damages approach that reflects the
average value of the plaintiffs’ claims. That proposal conflicts with the Rules
Enabling Act and Supreme Court precedent. Cases that accept the use of
representative evidence in class actions do not support the use of
representative evidence here. Tyson Foods, Inc. v. Bouaphakeo exemplifies the
proper use of representative evidence to establish class-wide liability. 136 S.
Ct. 1036 (2016). There, an employer did not pay hourly employees for time
spent donning and doffing protective gear. Id. at 1042. The employees sought
to certify a class action under both Rule 23 and the Fair Labor Standards Act
(“FLSA”),” arguing that they were entitled to be compensated for this time. Id.
Since the employer did not keep records of donning and doffing time, the class
used representative evidence—La, the average time an employee took to don

The Tyson Foods plaintiffs sought certification under both Rule 23 and 29
U.S.C. § 216, a provision of the FLSA that permits employees so sue on behalf of
“themselves and other employees similarly situated.” 29 U.S.C. § 216; see Tyson
Foods, 136 5. Ct. at 1042.
1

The putative classes started on different dates. The Rule 23 class was also
larger (3,344 members to 444 members) because § 216 requires class members to opt
in. Tyson Foods, 136 S. Ct. at 1043 (citing Genesis Healthcare Cor. v. Symczyk, 133 S.
Ct. 1523, 1530 (2013)).
The parties did not dispute that the standard for certif3ring a collective action
under the FLSA was “no more stringent” than the standard for certifying a Rule 23
class. Id. at 1045. The Supreme Court assumed, without deciding, that this is correct.
Id. The Court then analyzed class certification under Rule 23, stating that satisfying
Rule 23’s requirements would satisfy § 2 16’s requirements. Id. With that
understanding, Tyson Foods’ analysis of Rule 23’s requirements is applicable here.
20

and doff safety equipment. Id. at 1043-44. The Court of Appeals found that the
jury could nevertheless have drawn “a ‘reasonable inference’ of class-wide
liability.” Id. at 1044-45 (citations omitted). The Supreme Court affirmed. Id.
The dispute in Tyson Foods centered on whether it is permissible to infer
that the representative evidence (taken from 744 observations) was actually
representative of each plaintiffs claim, as opposed to some kind of extremesmasking average. Id. at 1043, 1046. Tyson held that it was. The class was
permitted to use representative evidence because an individual class member
would have been able to use that same statistical or representative evidence in
an individual action. (Recall that under the Rules Enabling Act, the Federal
Rules, including Rule 23, may not abridge or modify substantive rights.) Id. at
1046; see Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.s.
393, 407-08 (2010). The permissibility of including such representative
evidence “turns not on the form a proceeding takes—be it a class or individual
action—but on the degree to which the evidence is reliable in proving or
disproving the elements of the relevant cause of action.” Tyson Foods, 136 S.
Ct. at 1046. In that case, the average of 744 observations (for 3,344 members
of the Rule 23 class) was representative of each plaintiffs claim. Id. at 1043,
1046. Indeed, the representative evidence resulted in the exclusion of 212
employees from the class, because they did not possess individual claims
under the FLSA. Id. at 1044.12
While representative evidence was appropriate in Tyson Foods,
representative evidence is inappropriate in many circumstances. In the earlier
case of Wal-Mart v. Dukes, for example, a putative class was not certified
because the class failed to meet the commonality requirement. 564 U.S. 338
(2011). The Dukes plaintiffs proposed using a “sample set of the class
members” to determine liability, aggregating the damages award based on the
“percent of claims to be valid” from this sample, applying this to the rest of the
12
As discussed in subsection V(A)(i)(b)(4), plaintiffs cannot identify which class
members suffered energy-expense damages.

21

class, and then multiplying the “number of (presumptively) valid claims” by
“the average backpay award in the sample set.” Id. at 355-56, 367. The
Supreme Court rejected this method, finding that the plaintiffs did not provide
significant proof of a common policy of discrimination to which each employee
was subjected. Id. at 355-56.
Tyson Foods itself clarified why the representative evidence in Wal-Mart
v. Dukes was not conducive to class litigation:
The underlying question in Wal—Mart, as here, was whether the
sample at issue could have been used to establish liability in an
individual action. Since the Court held that the employees were not
similarly situated, none of them could have prevailed in an
individual suit by relying on depositions detailing the ways in
which other employees were discriminated against by their
particular store managers.
136 S. Ct. at 1048. In this case, the plaintiffs’ energy-expense evidence has a
similar flaw: the plaintiffs use estimates of energy expense (La, representative
data) and attempt to apply it to the entire class—regardless of each individual’s
energy usage and regardless of whether the class member suffered any energyexpense injury at all. See infra subsection V(A)(i)(b)(4).
True, this may be a question of degree. We are not at the absurd end of
the spectrum where a class member is saying, in effect, that “a lot of employees
possess a cause of action, so there’s a good chance that I do, too.” But common
sense suggests that individual variability in the time it takes to change
clothing, as in Tyson, is dwarfed by individual variability in the energy use by
owners of washers, rendering the use of representative evidence in this case
more problematic than it was in Tyson.
The “representative” evidence proffered in this case thus presents two
major problems: (a) the evidence is not representative of the class members and
(b) it could not be used if one of the class members brought an individual
action. As stated in Tyson Foods, “Representative evidence that is statistically
inadequate or based on implausible assumptions could not lead to a fair or
accurate estimate

....“

136 S. Ct. at 1048-49. Even a quick glance at the named
22

plaintiffs suggests that the average usage estimates are not a close
approximation of each of the putative class members’ usage.’3 Furthermore, an
individual plaintiff from the class would not be able to use the statistical
evidence to prove a case. If Mr. Reid brought an action against Whirlpool, it is
unlikely that he would be permitted to use the average energy expenditures of
someone who does 392 cycles per year as a proxy for his own energy use (he
does approximately 52 washes per year). He would have to submit his own
evidence. Permitting a class to use representative data to prove a claim when
an individual class member could not use that data to prove the same claim is
to modify substantive rights under the Federal Rules of Civil Procedure—which
is not permissible under the Rules Enabling Act. See 28 U.S.C.

§

2072(b);

Dukes, 564 U.S. at 367; Sibbach v. Wilson & Co., 312 U.S. 1, 7-8 (1941).
(3) Defendants’ third argument is that permitting both price-premium
and energy-expense damages would lead to “double counting” of damages for
many plaintiffs.’4 I take plaintiffs to have implicitly acknowledged this
Plaintiffs seek to apply to the class an “average” washing machine usage of 392
cycles per year. Compare the actual data for the named plaintiffs: Mr. Reid performed
approximately 52 cycles per year (1 cycle per week x 52 weeks per year) and Ms.
Parson performed approximately 130 cycles per year (2.5 cycles per week x 52 weeks
per year). On the other hand, Mr. Maxwell completed about 546 cycles per year. (He
performed 7 to 14 cycles per week, approximately 10.5 cycles per week, for 52 weeks).
(ECF No. 279). As explained in Tyson Foods, the district court could have denied class
certification on the ground that the representative evidence was improper if “no
reasonable juror could have believed that the employees spent roughly equal time
donning and doffing.” 136 S. Ct. at 1049 (citing Anderson v. Liberty Lobby, Inc., 477
U.s. 242, 250-52 (1986)). In this case, no reasonable juror could find that the average
of 392 cycles per year approximated individual usage.
13

Plaintiffs have acknowledged that their two damages models do not have to be,
and perhaps should not be, aggregated. (Daubert Op. 52-53). Dr. Weir, plaintiffs’ exert,
reported as follows:
14

I believe the determination of which damage methodologies are selected
in this litigation will be made by the Court or jury, and I offer no opinion
as to whether Plaintiffs are legally entitled to one or both of these damage
recoveries. I have simply offered multiple damage methodologies that I
believe comport with Plaintiffs’ stated theories of liability, namely that
Plaintiffs allege that the class has paid a price premium solely
attributable to the presence of the Energy Star logo on these Maytag
Washing Machines, and that on an ongoing basis the class pays
23

possibility, though only in part. They state in their brief that “Whirlpool and its
customers understand that

Energy

Star labeled machines command an initial

price premium, but come with the promise of reduced energy and

water

bills

that, over time, will generate enough savings to recoup the higher purchase
price.” (P1. Br. 7-9 & n.6). Plaintiffs claim that the price premium for an Energy
Star machine is $200 and that an Energy Star customer will “recover” this
price premium in 3.4 years because of lower bills. (P1. Br. 1, 7-9). After the
price premium is “recovered,” however, an Energy Star customer continues to
save money compared to a non-Energy Star customer for the rest of the
(assumed) 11-year ownership term. (P1. Br. 9; Weir Decl.

¶ 15).’5

The energy-expense theory thus should be analyzed separately for two
time periods: First, for the initial 3.4 years of ownership, the Energy-Star
purchaser is “recovering” or amortizing the price premium. Second, from 3.4
years to 11 years of ownership, the Energy Star purchaser is continuing to save
money (compared to a non-Energy Star purchaser). There is clear double
counting in the first time period. Plaintiffs cannot receive damages for the price
premium and the difference in energy expense that offsets the price premium.
See generally Dewey v. Volkswagen of Am., 728 F. Supp. 2d 546, 596 (D.N.J.
2010) (rejecting proposed double counting of damages on motion to approve
settlement), rev’d and remanded on other grounds, 681 F.3d 170 (3d Cir. 2012).
The second time period, however, does not involve double counting. From
plaintiffs’ perspective, Energy Star customers are supposed to continue saving
additional amounts for energy as a result of the lowered efficiency of
these Maytag Washing Machines.
(Weir Rebuttal

¶ 90).

If consumers possessed perfect information, if they were perfectly rational, and
if the market were perfectly efficient (three very big “ifs,” as I observed at oral
argument), the two measures of damages might be equivalent. That is, consumers
would calculate the future energy savings and discount it to a present value, and that
figure would place a cap on the premium they were willing to pay. There is no evidence
that this represents a real-world scenario. Still, there is something to it; consumers do
not prize the Energy Star logo in the same way they prize a celebrity’s name on a pair
of basketball sneakers or a designer label on a fashion item. However imprecisely, they
value the Energy Star logo for the savings it represents.
15

24

money (compared to non-Energy Star customers) until the end of the machine’s
lifetime. (Of course, the calculations for that second time period are
complicated by the fact that individual usage habits vary widely and class
members do not keep their machines for uniform periods of time).
(4) Finally, and perhaps most problematically, a closer look at the
energy-expense theory suggests that not all members of the putative class
suffered energy-expense damages (defined, remember, as additional damages
that accrue in the second time period, after the initial price-premium is
amortized). Mr. Weir, plaintiffs’ expert, proposed an energy-expense calculation
based on an estimated 392 cycles per year. (Weir Decl.

¶11

10-1 1). Since it takes

3.4 years (on average) to “recover” the Energy Star price premium, a member of
the putative class would need to complete 1,332.8 cycles (3.4 years x 392
cycles) to “recover” the price premium.
But some of the plaintiffs, based on their rate of usage, might never
amortize their price premium and enter the second, energy-expense zone. For
example, named plaintiff Mr. Reid does one load of laundry per week. Over the
(presumed) 11 year life of the machine, he would complete 572 cycles (11 years
x 52 cycles per year); 572 cycles does not approach the 1,332.8 cycles needed
to offset the price premium. And if he never recovers his price premium before
disposing of the washer, Mr. Reid will never suffer any energy-expense
damages, as we have defined them.
Other plaintiffs would recover their price premiums, but not for many
years. For instance, Ms. Parsons does two to three loads per week. Assuming
she does 2.5 cycles per week, it would take her over 10 years to offset the price
premium she paid (2.5 cycles per week x 52 weeks per year x 10 years = 1300
cycles). If she uses the machine for less than 10 years (for any reason), she
would not recover her price premium and therefore would not suffer any
energy-expense damages.
It is likely, then, that many class members, like the named plaintiffs
discussed above, will not exhaust their price premium and therefore will not
25

incur supplemental energy-expense damages. Furthermore, since proving
individual usage appears impossible, there is no way to tell which plaintiffs are
which. The energy-expense damages thus present significant individual issues
that do not predominate over common questions.’6 As the Supreme Court held
in Dukes, a court cannot just aggregate plaintiffs who suffered damages with
plaintiffs who did not suffer damages and then disburse “average” damages.

564 U.S. at 367.
I find that plaintiffs’ energy-expense theory is not a cognizable one, and
that it does not lend itself to class treatment. As to this theory, then, the class
will not be certified.

U.

Damages Models

Defendants argue that under Comcast Corp. v. Behrend, 569 U.S. 27
(2013), the putative class has not provided damages models that are
adequately tied to their theory of liability. (Def. Br. 15-26). Defendants interpret
Comcast to require that plaintiffs must “proffer a ‘sound’ class damages model

l
In certain circumstances “there would be problems involved in proving damages
which would outweigh the advantages of class certification,” and in such a case, a
district court might “give appropriate consideration to certification of a class limited to
the determination of liability.” Chiang a Veneman, 385 F.3d 256, 273 (3d Cir. 2004)
(quoting Bogosian a Gulf Oil Corp., 561 F.2d 434, 456 (3d Cir. 1977), abrog. on other
grounds by In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 318 n. 18 (3d Cir.
2008)); see Fed. I?. Civ. P. 23(c)(4) (“When appropriate, an action may be brought or
maintained as a class action with respect to particular issues.”).

The interaction between the requirements of Rule 23(a)—(b) and the ability to
maintain a class action “with respect to particular issues,” permitted by Rule 23(c)(4),
has generated divergent interpretations among the courts. See Hohider a United Parcel
Sew., Inc., 574 F.3d 169, 200 n.25 (3d Cir. 2009) (comparing the approaches of
different courts). In any case, however, I decline to exercise discretion under Rule
23(c)(4) given the multiple problems with the energy-expense damages. See Id.
Including an energy-expense theory in the class certification would not promote
efficiency. It would complicate the case and would likely never be resolved
satisfactorily. The energy-expense data will not be amenable to class treatment at a
later time. Additionally, including this theory would alter the substantive rights of
plaintiffs. Plaintiffs who did not suffer energy-expense damages would be compensated
for them, while other plaintiffs would be under-compensated. See Id. See generally
Principles of the Law of Aggregate Litigation ch. 2 (Am. Law Inst. 2009).
26

that measures ‘only those damages attributable’ to one of th[eir] two theories.”
(Def. Br. 15).
In Comcast, the plaintiffs alleged four different theories of antitrust
impact against a cable television provider. 569 U.S. at 36-38. The trial court
found that three of the four theories were not suited to class resolution, but it
did certified the remaining theory. Id. A problem arose, however, because the
plaintiffs’ damages expert did not segregate damages attributable to any one
theory; rather, the expert calculated aggregate damages from all four. Id. The
Supreme Court reversed, finding that the plaintiffs had not established that the
single, certified damages theory was capable of measurement on a class-wide
basis. Id. at 34-36. Because plaintiffs’ showing was not tailored to the damages
theory the court had found valid, it did not satisfy Rule 23(b)(3)’s predominance
requirement. Id.
Comcast did not signal a revolution in the scrutiny of damages
measurements in Rule 23(b)(3) class actions. It rests on the uncontroversial
principle that plaintiffs “must be able to show that their damages stemmed
from the defendant’s actions that created the legal liability.” Leyva v. Medline
Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013) (citing Comcast, 569 U.S. at 38);
see Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 374 & n.10 (3d Cir. 2015)
(citing Leyva, 716 F.3d at 514). “[T]he Supreme Court specifically noted that it
was not breaking new ground [in Comcastl by stating at the beginning of its
opinion: this case turns on the straightforward application of classcertification principles.”’ Neale, 794 F.3d at 374 (citing Comcast, 569 U.S. at
34).
Here, plaintiffs have presented two damages models—one for the pricepremium theory of liability, and another for the energy-expense theory. For the
reasons expressed above, the first liability theory is appropriate for class
treatment, but the second is not. Unlike the damages models in Comeast,
however, the damages models here do not combine or conflate the valid and
invalid theories. Rather, the plaintiffs have presented separate damages models
27

corresponding to the price-premium and energy-expense theories. A class
action can therefore segregate the damages that correspond to the valid, pricepremium theory. No Comcast issue arises.
iii.

Differences in State Law

Defendants claim that differences in state law make class treatment of
state law claims unworkable, even as to Whirlpool alone. (Def. Br. 26-33). And
applying multiple states’ laws could become even more challenging if the jury
needs to consider the liability of Whirlpool together with that of the five retailer
defendants. (Home Depot Br.).
When a multi-state class is sought, a choice-of-law determination is
required at the certification stage. “A necessary precondition to deciding Rule
23 issues is a determination of the state whose law will apply.” Powers v.
Lycoming Engines, 328 F. App5c 121, 124 (3d Cir. 2009); see Hubert’. Taylor,
469 F.3d 67, 82-83 (3d Cir. 2006). Indeed, attempts to structure and certify a
multi-state class may turn on the question of whether the court must apply the
law of a single state or multiple states. Cf. Powers, 328 F. App’* at 124. A
comprehensive choice-of-law analysis is also necessary because a class action,
a procedural device, may not alter the substantive legal rights of the plaintiffs.
See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821 (1985); see also Dukes,
564 U.S. at 367; Sibbach, 312 U.S. at 7-8. Therefore, the putative class must
credibly demonstrate “that class certification does not present insuperable
obstacles” in terms of choice of law. In re Sch. Asbestos Litig., 789 F.2d 996,
1010 (3d Cir. 1986).
The predominance requirement of Rule 23(b)(3) may be defeated when
class claims must be decided on the basis of multiple state laws. Wright &
Miller explain:
As a matter of general principle, the predominance requirement of
Rule 23(b)(3) will not be satisfied if the trial court determines that
the class claims must be decided on the basis of the laws of
multiple states and the appellate court will reverse an order
granting certification if the lower court has failed to consider
28

carefully whether or how multiple state laws will apply. The
application of multiple state laws to the action works to defeat
predominance because the legal issues no longer pose a common
question.
Wright & Miller, Federal Practice & Procedure § 1780.1 (3d ed. 2005) (footnotes
omitted). Courts in this district have agreed. See Powers, 328 F. App’x at 127
(“Attempting to apply the law of a multiplicity of jurisdictions can present
problems of manageability for class certification under Rule 23(b)(3).”); Gray u.
Bayer Corp., No. 8-4716, 2011 WL 2975768 (D.N.J. July 21, 2011) (finding that
plaintiff did not meet the burden to “credibly demonstrate, through an
extensive analysis of state law variances, that class certification does not
present insuperable obstacles”); see also Chin v. Chrysler Corp., 182 F.R.D.
448, 453 (D.N.J. 1998) (“[W]here the applicable law derives from the law of the
50 states, as opposed to a unitary federal cause of action, differences in state
law will ‘compound the

[]

disparities’ among class members from the different

states.” (quoting Amchem Prods., Inc., v. Windsor, 521 U.S. 591, 624 (1997))).
Plaintiffs respond that choice-of-law problems can be minimized through
the certification of seven subclasses. (P1. Br. 4; P1. Reply to Whirlpool 12-13).
Under that proposal, there would be independent subclasses for each state
(New Jersey, California, Florida, Ohio, Indiana, Texas, and Virginia). Each
state’s law would determine a defendant’s liability for washer purchases that
occurred in that state. As to Counts II, III, and IV, moreover, plaintiffs point out
that the states’ substantive laws do not vary appreciably, so the claims can be
adjudicated using common standars. (See MTD Op. 13-27); see also 2 William
B. Rubenstein, Newberg on Class Actions § 4:61 (5th ed. 2013); In re Prudential
Ins. Co. Sales Practice Litig. Agent Actions, 148 F.3d 283, 315 (3d Cir. 1998)
(“Courts have expressed a willingness to certify nationwide classes on the
ground that relatively minor differences in state law could be overcome at trial
by grouping similar state laws together and applying them as a unit.”); In re
Sch. Asbestos Litig., 789 F.2d 996, 1010 (3d Cir. 1986) (certifying nationwide
class with subgroups based on variations in state law).
29

In an action against Whirlpool, I agree that the difficulties are not
insuperable. Plaintiffs could present common issues of fact. And by dividing
the action into seven state-specific subclasses, the court could minimize
complicated choice-of-law issues and ensure that the substantive rights of
plaintiffs are not altered.
Addition of the claims against the five retailers, however, would
complicate the issues to an impermissible degree. The named plaintiffs only
have standing to sue the retailers from which they purchased the washer, in
the state where they purchased the washer.’7 The action involves seven states;
some retailers are sued in only one state, and others in more than one.
Therefore, sub-subclasses would need to be created. And those sub-subclasses
require that the seven subclasses be divided in confusing, criss-crossing, and
overlapping ways.
Take New Jersey as an example. The named New Jersey plaintiffs bought
their washers from Lowe’s and Home Depot. The New Jersey subclass, then,
consists of all who purchased the relevant Whirlpool-manufactured washers in
the relevant period. The two New Jersey sub-subclasses, however, consist of
those who purchased their washers from Lowe’s and Home Depot. Thus, in
practice, the New Jersey subclass would have three subclasses: (1) New Jersey
purchasers who sue only Whirlpool; (2) New Jersey purchasers who sue
Whirlpool and Lowe’s; and (3) New Jersey purchasers who sue Whirlpool and
Home Depot. New Jerseyans who purchased their washers from retailers other
than Lowe’s and Home Depot—from Sears, say— would not be represented as
against any retailer.
Take California as a second example. The California subclass would have
four sub-subclasses: (1) California purchasers who sue only Whirlpool;
(2) California purchasers who sue Whirlpool and Sears; (3) California
As I have already noted in this case, a plaintiff may bring state law claims only
under the law of the state where he or she lived and the alleged injury occurred. (MTD
op. 29 & n. 18); see also Cooper u. Samsung Elecs. Am., Inc., 374 F. App’x 250, 255 (3d
Cir. 2010).
17

30

purchasers who sue Whirlpool and Fry’s; and (4) California purchasers who
sue Whirlpool and Home Depot. Californians who purchased their washers
from retailers other than those just named—from Lowes, say— would not be
represented as against any retailer at all.
Comparing the two, we see that New Jersey class members (if any) who
purchased from, e.g., Sears would not be represented as against Sears. But
California class members who purchased from Sears would be represented
against Sears. Conversely, California plaintiffs who purchased from Lowe’s (if
any) would not be represented against Lowe’s. But New Jersey class members
who purchased from Lowe’s would be represented against Lowe’s.
The Ohio, Indiana, Texas, and Virginia classes would all have analogous
subclasses and sub-subclasses. (The Florida subclass sues only Whirlpool, not
any retailers.) So multiply this tripartite or quadripartite scheme by six and
imagine a jury’s being called upon to deal with all of those overlapping
categories. Two charts are attached to this opinion to demonstrate the
complexity of the subclass proposal.
The manageability problems are obvious. Consider the claims against
Home Depot. The jury would have to determine Home Depot’s liability under
the laws of New Jersey, California, and Texas; consider Home Depot’s liability
separately from the liability of other retailers (Sears, ARCA, Lowe’s, and Fry’s);
and consider Home Depot’s liability separately from that of Whirlpool. Home
Depot alone is subject to three separate sub-subclasses applying the laws of
three different states. The situation of the other retailers is analogous.
These manageability problems are compounded by factual differences
regarding each retailer’s purported representations. Those problems will be
discussed further in the next subsection and in relation to Rule 23(b)(3)’s
superiority requirement.

iv.

Individualized Facts

Defendants suggest that individualized facts predominate over common
facts for four reasons: (1) whether a warranty was breached or a fact
31

misrepresented will raise individualized questions; (2) several claims require
individual proof of reliance or state of mind; (3) plaintiffs’ warranty claims
require individual proof of pre-suit notice; and (4) plaintiffs’ unjust enrichment
claims are inappropriate for class certification. (DeL Br. 33-38). I discuss those
four reasons in turn. Ultimately, I conclude that individualized facts do not
predominate in claims against Whirlpool, but do predominate in claims against
the retailers.
(1) First, as to defendant Whirlpool, whether a warranty was breached or
a fact was misrepresented does not raise predominant, individualized questions
of fact. Defendants argue that a jury may find that a breach or
misrepresentation occurred only after a certain date (such as July 6, 2010,
when the DOE reinterpreted the term “clothes container”—or January 19,
2011, when the DOE concluded that the washers did not meet the revised
Energy Star criteria). The existence of such different circumstances, a “safe
harbor” defense, or other defenses that may affect class members differently
does not compel a finding that individual questions predominate over common
ones. See Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 543 (6th Cir. 2012)
(finding that individualized defenses against certain policyholders does not
defeat commonality); Smilow u. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 39 (1st
Cir. 2003) (“[W]here common issues otherwise predominated, courts have
usually certified Rule 23(b)(3) classes even though individual issues were
present in one or more affirmative defenses.”). It may be an issue of fact for the
jury whether claims are viable depending on, e.g., date of purchase. Once that
issue of fact is decided, it should be feasible to segregate the claims that
survive from those that do not.
As to the retailer defendants, however, the picture is different. Whether a
warranty

was

breached or a fact was misrepresented raises factual questions

that may differ, not only among plaintiffs, but among the retailers themselves.
As noted previously, class certification depends on “the capacity of a classwide
proceeding to generate common answers apt to drive the resolution of the
32

litigation. Dissimilarities within the proposed class are what have the potential
to impede the generation of common answers.” Wal-Mart Stores, Inc. u. Dukes,
564 U.S. 338, 350 (2011) (citing Richard A. Nagareda, Class Certfication in the
Age of Aggregate Proof 84 N.Y.U. L. Rev. 97, 132 (2009)).
Plaintiffs here do not allege or even preliminarily demonstrate factually
that the retailers engaged in a common course of conduct. They allege that
Home Depot, for example, encouraged the sale of Energy Star products at its
corporate level. (2AC

¶

22) They provide no specifics as to what warranties

Home Depot or other retailers offered, what representations they made, or what
fraudulent activity they may have engaged in. (Home Depot Br. 9-18). As to
common action, plaintiffs assert generally that the retailers “acted in concert,
with the knowledge and approval of the other defendants and/or as the agent
of the other defendants within the course and scope of the agency, regarding
the acts and omissions alleged.” (2AC

¶

25). In response to Home Depot’s

arguments, plaintiffs stress that the retailer acted as “an agent” of Whirlpool.
(P1. Reply to Home Depot 8). This is thin and conclusoiy stuff—sufficient,
perhaps, to get past a motion to dismiss—but the inquiry at the certification
stage must be more searching. 18
The issues of whether each retailer made representations, adopted
Whirlpool’s representations, had knowledge of Whirlpool’s allegedly fraudulent
conduct, or acted as an agent of Whirlpool, present significant and discrete
questions. The resolution of those questions depends on each retailer’s acts or
omissions. As discussed more fully in the preceding section, the plaintiffs
suggest the creation of seven subclasses, one for each state, divided into
subclasses, by retailer, within that state. The resolution of any question as to

I addressed these allegations in a previous opinion on the motion to dismiss the
first amended complaint: “I note for future reference, however, that the allegations that
the retailer Defendants acted as agents of Whirlpool have a conclusoiy quality,
especially when measured against the pleading standard of Fed. R. Civ. P 9(b).” (MTD
op. 32). The second amended complaint is the currently operative pleading.
18

33

any particular multistate retailer, moreover, may or may not cut across state
lines, creating yet another confusing latticework of categories.
Each sub-subclass would have to deal with significant, individualized
questions regarding retailer liability. For instance, if the putative class is
certified against the retailers, the jury will need to determine if each retailer
made representations or adopted representations that formed the basis of the
bargain. (And the difficulty of determining each retailer’s liability will be
compounded by the applicability of several states’ laws.) This will lead to
individual questions about each retailer, for example, whether that retailer had
knowledge of Whirlpool’s allegedly fraudulent labeling and whether the retailer
made any additional representations or warranties.
In this context, it becomes increasingly apparent that individualized
questions “impede the generation of common answers” and also that common
questions do not predominate over all of the claims against the five retailer
defendants, both in relation to one another and in relation to Whirlpool.
Reasons (2) and (3) both concern differences in state law. Defendants
assert (2) that state laws differ in terms of reliance or scienter and (3) that the
state warranty claims have different pre-suit notice requirements. Those
concerns have been largely addressed in subsection V.A.iii, which discusses
differences in state law. I accept that dividing this multi-state action into seven
subclasses, one for each state, would tend to minimize the choice of law
problem as to Whirlpool.
However, reason (2) underscores the predominance and manageability
problems that arise in this suit when the claims against the five retailers are
joined to those against Whirlpool. If the putative class is certified against the
retailers, in many instances a jury would have to determine whether each
retailer made actions or omissions and whether each retailer’s acts or
omissions give rise to liability under the laws of different states. For instance, a
jury would have to determine whether Home Depot made acts or omissions
relevant to the claims—and whether those acts or omissions give rise to liability
34

under the laws of New Jersey, California, and Texas. This problem is multiplied
and compounded in relation to the four other retailers and Whirlpool.
Manageability problems aside, this circumstance suggests that common issues
may not predominate as to all defendants.
Reason (4) asserts that plaintiffs’ unjust enrichment claims are
inappropriate for class certification. Defendants argue that courts regularly
choose not to certify unjust enrichment class actions. That is not, however, an
ironclad rule; courts may certify unjust enrichment class actions where
variations among some states’ laws “do not significantly alter the central issue
or the manner of proof.” In re Abbott Labs. Norvir Anti-Trust Litig., Nos. 4-1511
& 4-4203, 2007 WL 1689899, at *9 (N.D. Cal. June 11, 2007). In this case, I
have already evaluated the various states’ unjust enrichment laws and found
that New Jersey law is typical and can be applied. Dzielak v. Whirlpool Corp., 26
F. Supp. 3d 304, 330 (D.N.J. 2014).

B. Superiority

For certification under Rule 23(b)(3), a putative class action must be
“superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. F?. Civ. P. 23(b)(3). This superiority inquiry “asks the court to
balance, in terms of fairness and efficiency, the merits of a class action against
those of alternative methods of adjudication.” In re Prudential, 148 F.3d at 316
(internal quotations omitted). This requirement is met when “a class action
would achieve economies of time, effort, and expense, and promote uniformity
of decision as to persons similarly situated, without sacrificing procedural
fairness or bringing about other undesirable results.” Fed. R. Civ. P. 23(b)(3)
advisory committee’s notes (1996 amendment, subdivision (b)(3)).
A class action against Whirlpool is in one important respect superior to
other available methods of litigating these claims. It is not economically feasible
to litigate these claims individually within the traditional framework of
individual suits for damages. See Despoit Quar. Nat’l Bank u. Roper, 445 U.s.
35

326, 339 (1980). If class action treatment were not available, these claims
would likely never be heard, because the modest amount of damages makes
individual prosecution impractical. See Fed. I?. Civ. P. 23(b)(3) advisory
committee’s notes (1996 amendment). Alternatively, if thousands of such suits
were brought individually, they might burden and overwhelm the judiciary.
For similar reasons, individual class members would have no overriding
interest in pursuing their claims individually. See Yandle v. PPG Indus., Inc., 65
F.R.D. 566, 572 (E.D. Tex. 1974) (finding that “members of the purported class
have a vital interest in controlling their own litigation because it involves
serious personal injuries and death in some cases”). There is no fear that
plaintiffs with specific, acute harms may become bound to an inadequate
judgment or settlement. See Georgine v. Amchem Prods., Inc., 83 F.3d 610, 633
(3d Cir. 1996) (finding that asbestos-exposure plaintiffs may be bound by a
settlement that would not adequately compensate them if they eventually
contracted a fatal disease). Here, each plaintiffs harm is economic and is
related to a single appliance purchase.
I easily conclude, therefore, that class treatment of the claims against
Whirlpool is superior to other methods of adjudication.
Not so, however, as to the plaintiffs’ bloated and unmanageable claims
against the retailers. Much of this discussion, of course, was presaged by the
court’s prior predominance analysis, supra. I will, however, briefly discuss in
particular how the certification of a class against the retailers would violate
Rule 23(b)(3)’s superiority requirement.
First, certifying the class against the retailers would involve fracturing
the seven subclasses into many sub-subclasses. For example, the California
class would be subdivided into four separate classes: (1) California purchasers
who sue only Whirlpool; (2) California purchasers who sue Whirlpool and
Sears; (3) California purchasers who sue Whirlpool and Fry’s; and (4) California
purchasers who sue Whirlpool and Home Depot. See supra subsection V.A.iii.
This would quickly lead to manageability problems at later stages, and at trial.
36

This problem is compounded because many retailers are subject to suit in
multiple states. A jury would have to determine Home Depot’s liability under
the laws of three different states—and consider Home Depot’s liability
separately from the other four retailers’ liability.
Second, as discussed above, there is no proof, or even really a factual
allegation, that the retailers engaged in any uniform, common course of action.
The differences between the retailers’ actions mean that their liability is not
“susceptible to generalized, class-wide proof.” 2 W. Rubenstein, Newberg on
Class Actions

§

4.50 (5th ed. 2012). Different evidence would be necessary to

prove each retailer’s liability. Jurors would need to consider each retailer’s
evidence separately and, in many cases, under the laws of multiple states.
Third, a class action against Whirlpool and the retailers together would
not be a superior method of litigating these claims. Retailer-by-retailer suits, if
viable, would be a superior, much more manageable process. The need to apply
different standards of liability across subclasses and sub-subclasses creates
immense manageability problems that would likely confound a jury. See Wright
& Miller, Federal Practice & Procedure

§

1780.1 (3d ed. 2005).

The solution is to certify the class action against Whirlpool, but to deny
certification as to the retailers. It is well within the court’s discretion to certify
part of a class action and eliminate certain subclasses to solve manageability
problems. See, e.g., DeiRossi u. Whirlpool Corp., No. 12-125, 2015 WL 1932484
(E.D. Cal, Apr. 28, 2015) (certifying a California class but declining to certify a
33-jurisdiction class). This limitation will ameliorate the manageability
problems and encourage the efficient adjudication of the plaintiffs’ claims.
C. Ascertainability
While reserving their rights as to other certification issues, the parties
appear to agree that the class is ascertainable. (P1. Br. 14; ECF no. 125; Bursor
DecI.

¶1J

24-26 & Exh. 24-25). I nevertheless briefly discuss the ascertainability

requirement and find that it is satisfied.

37

In the Third Circuit, Rule 23(b)(3) certification requires an independent
determination that (1) the class is “defined with reference to objective criteria”;
and (2) there is “a reliable and administratively feasible mechanism for
determining whether putative class members fall within the class definition.”
Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015) (citing Hayes u. 14/al-Mad
Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013)).

This class is defined with reference to objective criteria. Each subclass is
defined by two: (a) purchase of a Maytag Centennial MVWC6ESWWO,
MVWC6ESWW1, or MVWC7ESWWO clothes washer and (b) the State in which
the purchase took place. (2AC

¶1 1 n.2, 123-24, 126-30). Second, it is probably

easy to ascertain whether class members fall within this class definition based
on ordinary business records.’9 Thus the class is ascertainable.
VI.

Conclusion

After a thorough analysis of the Rule 23(a) and 23(bfl3) requirements, I
certify the plaintiffs’ class on the price-premium theory of injury as against
defendant Whirlpool. I do not certify the class on the energy-expense theory
and I do not certify the class against defendant retailers—Lowe’s, Sears, Home
Depot, Fry’s, and ARCA. Certifying the energy-expense theory and defendant
retailers would violate the predominance and superiority requirements of Rule
23(b)(3).
An appropriate order accompanies this opinion.
Dated: December 20, 2017

Li

KEVIN MCNULTY
United States District Judge

19
While it would be difficult to define the class of persons who may have
experienced ener’-expense damages, the class has not been certified as to that
theory. See supra subsection V.A.i.b.

38

Chart la: State-Law-Specific Sub- and Sub-subclasses
Count(s)

Defendant(s)

Putative Sub-Class

NJ Lowe’s purchasers

Whirlpool, Lowe’s

II, III, V, VI

NJ Home Depot purchasers

Whirlpool, Home Depot

II, III, V, VI

All other NJ purchasers

Whirlpool

II, III, V, VI

CA Sears purchasers

Whirlpool, Sears

II, VII, VIII, IX

CA Fry’s purchasers

Whirlpool, Fry’s

II, VII, VIII, IX

CA Home Depot purchasers

Whirlpool, Home Depot

II, VII, VIII, IX

All other CA purchasers

Whirlpool

II, VII, VIII, IX

FL purchasers

Whirlpool

II, XI

OH ARCA purchasers

Whirlpool, ARCA

II, XII

All other OH purchasers

Whirlpool

II, XII

IN Sears purchasers

Whirlpool, Sears

II, III, XIII

All other IN purchasers

Whirlpool

II, III, XIII

TX Home Depot purchasers

Whirlpool, Home Depot

II, III, XIV

All other TX purchasers

Whirlpool

II, III, XIV

VA Lowe’s purchasers

Whirlpool, Lowe’s

II, III

All other VA purchasers

Whirlpool

II, III

Chart ib: Sub-Classes Applying Uniform Unjust Enrichment Law
Count

Defendant(s)

Putative Sub-Class

NJ, VA Lowe’s purchasers

Lowe’s

IV

CA, IN Sears purchasers

Sears

IV

NJ, CA, TX Home Depot
purchasers

Home Depot

IV

CA Fry’s purchasers

Fn”s

IV

OH ARCA purchasers

ARCA

IV

39