Reichardt et al v. Electrolux Home Products Inc

Filing 146

ORDER signed by Judge Brett H Ludwig on 3/10/23 that Plaintiffs' Motion for Class Certification 119 is DENIED. (cc: all counsel)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN REICHARDT, et al.,
Plaintiffs,

Case No. 17-cv-0219-bhl

v.
ELECTROLUX HOME PRODUCTS INC,

Defendant.
______________________________________________________________________________
ORDER DENYING CLASS CERTIFICATION
______________________________________________________________________________
Between 2012 and 2016, Plaintiffs Carol Reichardt, Pam Hart, and Adele Stukas purchased
oven ranges manufactured by Defendant Electrolux Home Products, Inc. Between 2016 and 2019,
each of those ranges inexplicably caught fire. Once the smoke cleared, Plaintiffs joined to bring
this putative class action. They now move to certify three classes and three subclasses of similarly
situated consumers whose Electrolux-manufactured ovens also unexpectedly ignited. Electrolux
opposes the motion on various grounds, some of which have merit. Accordingly, because the
record confirms that Plaintiffs’ proposed classes do not satisfy the requirements of Federal Rule
of Civil Procedure 23, their motion for class certification will be denied.
FACTUAL BACKGROUND
On March 8, 2012, Wisconsin residents John and Carol Reichardt 1 purchased a model
FPEF3018KFC oven range equipped with an ES1000 control board. (ECF Nos. 120 at 8; 121-5
at 16, 20.) A control board is the brain of the oven, translating consumer inputs into responsive
actions, i.e., telling the oven to preheat at 375 degrees. (ECF No. 120 at 7.) It is typically flameresistant and insulated. (ECF No. 129 at 12, 19.) But on July 17, 2016, because of an “insulation
failure [that] occurred near the relays that control the stovetop heating coils,” the Reichardt’s oven
spontaneously caught fire while not in use. (ECF No. 121-5 at 16.) The fire damaged windows,

John Reichardt was initially also a plaintiff in this action but withdrew due to health conditions. (ECF No. 135 at 5
n.2.)

1

cabinets, walls, small appliances, perishables, and a painting, while the smoke and soot damaged
the living room, bathroom, and hallways. (ECF No. 52 ¶29.)
The Reichardts filed a homeowner’s insurance claim with Allstate, which paid at least
$7,662.81 for repairs and the depreciated value of the oven range. (ECF Nos. 52 ¶34; 129 at 13.)
The Allstate policy provided: “When we pay for any loss, an insured person’s right to recover from
anyone else becomes ours up to the amount we have paid.” (ECF No. 130-10 at 35.) Consistent
with that policy, Allstate, as the Reichardts’ subrogee, filed a claim against Electrolux. (ECF No.
129 at 13.) The claim settled for $16,000, and the parties signed a general release discharging
“any and all claims or causes of action . . . in any way arising from any and all losses and damages
sustained on or about the 17th day of July, 2016, to the property and/or person of John Reichardt.”2
(ECF No. 130-23 at 2.)
Pam Hart of Ohio purchased her model FEF355AWA oven range around August 2013.
(ECF No. 52 ¶48.) It came equipped with an ES300 control board. (ECF No. 120 at 10.) The
ES300 featured relay contacts (electromechanical control devices) made of silver alloy. (Id.)
Certain silver alloys like silver cadmium oxide and silver tin indium are often used as relay contacts
because they are not prone to melting or sticking. (ECF No. 121-3 at 11.) But the alloy used in
the ES300 did melt. (ECF No. 121-5 at 60.) As a result, around February 2019, while she was
baking cupcakes, Hart’s oven malfunctioned and caught fire. (ECF No. 52 ¶49.) Thinking fast,
she immediately unplugged the appliance and avoided further damage. (Id.)
In November 2016, Adele Stukas, who resides in Chicago, Illinois, purchased a model
FFGF3047LSJ oven range equipped with an ES100 control board. (ECF Nos. 52 ¶56; 120 at 12.)
The ES100 has a safety mechanism that cuts power to the oven’s heating element if it detects a
sudden, unexplained increase in temperature or cannot determine what the temperature is. (ECF
No. 129 at 16.) When this happens, the oven displays an “F10” error code. (Id.) In November
2017, Stukas’ oven caught fire while preheating. (ECF No. 52 ¶57.) She extinguished the flames
with water from her sink. (Id.) Thereafter, the oven displayed the “F10” error code and refused
to turn on. (ECF No. 129 at 16.)

While the release names only John Reichardt, both he and his wife Carol were policyholders. (ECF No. 130-10 at
4.)
2

Approximately three months later, in February 2018, Stukas filed for bankruptcy and did
not list any claims related to Electrolux in her petition. (Id. at 17.) She received her discharge on
May 30, 2018. (Id.)
LEGAL STANDARD
“Class certification is governed by Federal Rule of Civil Procedure 23.” Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 345 (2011). To satisfy Rule 23, the party seeking certification must
initially demonstrate, by a preponderance of the evidence, that:
(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)(1)-(4); see Chi. Tchrs. Union, Local No. 1 v. Bd. of Educ. of City of Chi., 797
F.3d 426, 432-33 (7th Cir. 2015). The movant must then satisfy one of the three requirements
found in Rule 23(b). See Dukes, 564 U.S. at 345. In this case, Plaintiffs invoke Rule 23(b)(3),
which requires the Court to find “that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.”
ANALYSIS
Plaintiffs—who purchased three different models of allegedly defective oven ranges in
three different states—seek to certify six classes and subclasses of similarly situated consumers
based on a mixture of eight unique state and federal claims. They define their proposed classes as
follows:
1. ES1000 National Class: All consumers who, within the applicable statute of limitations
period, purchased an oven range manufactured by Electrolux and installed with an
ES1000 control board.
2. ES1000 Wisconsin Subclass: All Wisconsin residents who, within the applicable statute
of limitations period, purchased an oven range manufactured by Electrolux and
installed with an ES1000 control board.
3. ES300 National Class: All consumers who, within the applicable statute of limitations
period, purchased an oven range manufactured by Electrolux and installed with an
ES300 control board.

4. ES300 Ohio Subclass: All Ohio residents who, within the applicable statute of
limitations period, purchased an oven range manufactured by Electrolux and installed
with an ES300 control board.
5. ES100 National Class: All consumers who, within the applicable statute of limitations
period, purchased an oven range manufactured by Electrolux and installed with an
ES100 control board.
6. ES100 Illinois Subclass: All Illinois residents who, within the applicable statute of
limitations period, purchased an oven range manufactured by Electrolux and installed
with an ES100 control board.
(ECF No. 120 at 14-15.) Each class or subclass includes some combination of alleged violations
of (1) the Magnuson-Moss Warranty Act, (2) Strict Liability – Design Defect; (3) Strict Liability
– Failure to Warn, (4) Express Warranty under Wisconsin Law, (5) Express Warranty under Ohio
Law, (6) the Ohio Products Liability Act, (7) Express Warranty under Illinois Law, and (8) the
Illinois Consumer Fraud and Deceptive Practices Act. (ECF No. 84 at 1.)
Electrolux argues that none of the nationwide classes are manageable because they require
application of different state laws and none of the state subclasses satisfy the elements of Rule
23(a). Plaintiffs contend that North Carolina law will apply to all nationwide classes and all of
Rule 23(a)’s requirements are met. The Court agrees with Electrolux on both points.
I.

None of the Proposed Nationwide Classes are Manageable.
“No class action is proper unless all litigants are governed by the same legal rules.” In re

Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir. 2002). The parties to this suit dispute
what legal rules apply to the proposed nationwide class actions. To resolve the dispute, this Court
must look to Wisconsin choice-of-law principles. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496 (1941). Those principles dictate that “the law of the forum should presumptively
apply unless it becomes clear that nonforum contacts are of greater significance.” Wilcox v.
Wilcox, 133 N.W.2d 408, 416 (Wis. 1965).
Under Wisconsin law, how courts measure the significance of nonforum contacts depends
on the nature of the suit. For contractual disputes, Wisconsin courts use the “grouping of contacts”
test, which mandates consideration of: (1) the place of contracting; (2) the place of negotiation; (3)
the place of performance; (4) the location of the subject matter of the contract; and (5) the domicile,
residence, nationality, place of incorporation, and place of business of the parties. See State Farm

Mut. Auto. Ins. Co. v. Gillette, 641 N.W.2d 662, 670-71 (Wis. 2002); Haines v. Mid-Century Ins.
Co., 177 N.W.2d 328, 330 (Wis. 1970). For tort claims tied to contractual disputes, the factors to
consider also include where the injurious conduct and injury occurred. See NCR Corp. v.
Transport Ins. Co., 823 N.W.2d 532, 535-36 (Wis. Ct. App. 2012). “If one state’s contacts are
clearly more significant, the court can terminate analysis after consideration of the above factors.”
Doster Lighting, Inc. v. E-Conolight, LLC, No. 12-C-0023, 2015 WL 3776491, at *12 (E.D. Wis.
June 17, 2015).
Inexplicably, despite seeking to certify nationwide classes, Plaintiffs did not address
choice-of-law at all in their opening brief. That, in and of itself, is problematic. See Cunningham
Charter Corp. v. Learjet, Inc., 258 F.R.D. 320, 332-33 (S.D. Ill. 2009) (“If a plaintiff fails to
present a sufficient choice of law analysis, it fails to meet is burden of proof on Rule 23(b)(3)’s
predominance requirement.”) They only advanced North Carolina as the appropriate source of
law in their reply brief, in response to Electrolux’s contention that maintenance of nationwide
classes would require the Court to apply the laws of all 50 states. (ECF Nos. 129 at 30-31; 135 at
13-14.) But in their haste to salvage the nationwide classes, Plaintiffs have jeopardized the bulk
of their claims. If Plaintiffs are correct that North Carolina has the most significant contacts with
the contracts at issue in this case, then the prospect of state subclasses is absurd—Wisconsin’s,
Ohio’s, and Illinois’ warranty and tort laws would not apply, only North Carolina’s would. But if
Plaintiffs are wrong, and the laws of all 50 states apply, then unless they can show that the
differences in law are not outcome-determinative, they cannot maintain nationwide classes. In
either event, half of the proposed classes or subclasses fall with a single stroke. So which of the
two class categories must absorb the self-inflicted fatal blow? The answer is the nationwide
classes.
Four of the five grouping of contacts factors are, at best, inconclusive and, at worst, slightly
inimical to the application of North Carolina law. Regarding place of contracting, Electrolux sold
its oven ranges through a slew of distributors across all 50 states, Washington D.C., and Puerto
Rico. (See ECF No. 124.) Even if it arguably offered express warranties from its headquarters in
North Carolina, the consumers accepted them at the place of purchase, so the factor is evenly split.
The same logic applies to the place of contract negotiation. At most, assuming negotiations
actually occurred—and Plaintiffs have not established that they did—the factor is split, with
Electrolux negotiating from North Carolina and consumers negotiating from their place of

purchase. Similarly, customers performed their contract obligations in their home states, while
Electrolux performed its obligations in North Carolina. And the parties’ residences are also a split,
Electrolux in North Carolina and consumers in their home states.
The dispositive factor is the location of the subject matter of the contract, i.e., the oven
ranges. The ovens were located and potentially failed in the various purchasers’ home states.
“This is the most important of the five contacts . . . [and] weighs heavily in favor of [] applying
laws of other states in deciding this case.” Doster Lighting, 2015 WL 3776491 at *13. The Court,
therefore, concludes that the proposed nationwide classes would implicate the warranty laws of all
50 states, Puerto Rico, and the District of Columbia. The same goes for the tort claims because
the injuries occurred in the consumers’ places of residence. See Bridgestone, 288 F.3d at 1017
(“If recovery for breach of warranty or consumer fraud is possible, the injury is decidedly where
the consumer is located, rather than where the seller maintains its headquarters.”); Barden v. Hurd
Millwork Co., Inc., 249 F.R.D. 316, 320 (E.D. Wis. 2008) (“Each class member more than likely
purchased the [offending] product in his or her home state, thus, virtually everything of
significance relating to the transaction likely happened there.”); Doster, 2015 WL 3776491 at *1214 (holding, under similar circumstances, that Wisconsin choice-of-law rules required the
application of the law of other states.)
It now “falls to the plaintiff[s] to demonstrate the homogeneity of different states’ laws, or
at least to show that any variation they contain is manageable.” Sacred Heart Health Sys., Inc. v.
Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1180 (11th Cir. 2010). Failure to do so
dooms the class action on commonality and superiority grounds. See Bridgestone, 288 F.3d at
1015. Yet Plaintiffs have not even attempted to demonstrate homogeneity. And it is unlikely they
could. Some states, such as Florida, require privity of contract to state a claim for breach of express
warranty. See Shearer v. Thor Motor Coach, Inc., 470 F.Supp.3d 874, 884 (N.D. Ind. 2020).
Others, like Indiana, impose no such requirement. Id. Certain states mandate reliance, while others
do not. See Barden, 249 F.R.D. at 321. These are important differences, “and such differences
have led [the Seventh Circuit] to hold that other warranty, fraud, or products-liability suits may
not proceed as nationwide classes.” Bridgestone, 288 F.3d at 1015. “Because these claims must
be adjudicated under the law of so many jurisdictions, a single nationwide class is not
manageable.” Id. at 1018. Plaintiffs, therefore, cannot maintain nationwide class actions against
Electrolux.

II.

Plaintiffs Have Not Satisfied the Requirements of Rule 23(a) With Respect to the
Proposed State Subclasses.
Plaintiffs’ proposed state subclasses have Rule 23 problems of their own. Plaintiffs have

not shown that the Wisconsin and Ohio subclasses (consisting of ES1000 and ES300 purchasers
in those states) are sufficiently numerous to justify class treatment. And they have likewise failed
to show that they are adequate representatives with typical claims for both the Wisconsin and
Illinois subclasses (consisting of ES1000 and ES100 purchasers in those states). Accordingly,
Plaintiffs cannot prove that any of their three proposed state-based subclasses is appropriate, and
their motion to certify them will therefore be denied.
A. The Wisconsin (ES1000) and Ohio (ES300) Subclasses Do Not Satisfy Numerosity.
Perhaps because Electrolux put up no resistance, Plaintiffs devoted only a cursory couple
of paragraphs to the question of numerosity. (ECF No. 120 at 15.) But through neither silence
nor stipulation can a defendant relieve the Court of its obligation to “rigorously analyze whether
the plaintiff satisfies [Rule 23’s] requirements.” Beaton v. SpeedyPC Software, 907 F.3d 1018,
1025 (7th Cir. 2018); see also Bauer v. Kraft Foods Global, Inc., 277 F.R.D. 558, 561 (W.D. Wis.
2012) (accepting the parties’ stipulation as to the number of proposed class members but
proceeding to consider whether that stipulated number satisfied numerosity). Numerosity is
Plaintiffs’ burden, and even if their adversaries do not hold them to it, the Court must. See Bell v.
PNC Bank, Nat. Ass’n, 800 F.3d 360, 377 (7th Cir. 2015).
Plaintiffs sloppily contend numerosity is established based on the unhelpful general
observation that “since 2013, more than 120,000 [ovens containing the ES1000, ES300, and ES100
control boards] have been sold in Wisconsin, more than 400,000 have been sold in Ohio, and
nearly 440,000 have been sold in Illinois.” (ECF No. 120 at 15.) At face value, these estimates
seem compelling; no court would sanction the joinder of 120,000 or 400,000 individuals in a single
suit. See Anderson v. Weinert Enters., Inc., 986 F.3d 773, 777 (7th Cir. 2021) (holding that the
key numerosity inquiry is the practicability of joinder). But neither approximation withstands
scrutiny.
Plaintiffs’ estimates merely represent the maximum possible number of class members in
each state. Those maximums only apply if every oven sold in Wisconsin and Ohio over the
relevant time period contained the same control boards as those Reichardt and Hart purchased.
But Plaintiffs never even try to establish this. From the data presented, the Court has no way to
determine how many of the 120,000 ovens sold in Wisconsin featured the ES1000 of which

Plaintiff Reichardt complains. This matters because Reichardt is not fit to represent consumers
who bought ovens equipped with the allegedly defective, but substantially different, ES300 and
ES100 controls. Scouring the nearly 4,000 pages of sales data Plaintiffs provide only further
confuses the issue. Recall that the Reichardts bought a model FPEP3081KFC oven range. Based
on Plaintiffs’ estimated class size, one would expect to find thousands of Wisconsin-based sales
involving that model on the sales data spreadsheet. Yet the spreadsheet, which goes back as far as
2007, reflects only 485 such transactions. 3 (See ECF No. 124.) The number grows exponentially
if one includes the sales of other models that may have featured the ES1000 control board. But
the Court is not free to speculate “as to the size of the putative class.” Arreola v. Godinez, 546
F.3d 788, 797 (7th Cir. 2008).
That said, if the Court could rely on the 485 putative class members it identified through
its own independent analysis, Plaintiffs might still prevail. See Anderson, 986 F.3d at 777 (noting
that the Seventh Circuit has recognized as numerous classes of as few as 40 members). The
problem is that we are not finished whittling the class just yet. As Electrolux’s response brief
points out, Plaintiffs never distinguish between gas and electric oven ranges. (ECF No. 129 at 13,
15.) Yet, by Plaintiffs’ own admission, the ES1000 class definition “should be narrowed to only
include consumers who purchased an electric oven range manufactured by Electrolux.” (ECF No.
135 at 6.) How many of the 485 model FPEP3081KF ovens sold in Wisconsin were electric?
Plaintiffs do not say, nor do they offer any method by which the Court might make such a
determination. The sales spreadsheet does not mention whether a particular oven runs on gas or
electric. And although Plaintiffs, in their reply, agreed to narrow their class definitions based on
the gas/electric distinction, ECF No. 135 at 6, they said nothing about how this affected the size
of the putative class. This is as good as staking numerosity on a game of roulette. The class size
could be as small as one and as large as 120,000. Plaintiffs do not need “to specify the exact
number of persons in the class,” Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989),
but they do need to demonstrate the impracticability of joinder, and they cannot do so with an
inscrutable margin of error. See Chi. Tchrs. Union, 797 F.3d at 432-33 (Plaintiffs must satisfy
Rule 23’s requirements “by a preponderance of the evidence.”).

Actually, Reichardt’s specific model, FPEP3081KFC, never appears, but the substantially similar FPEP3081KF
does. (ECF No. 124 at 529.) No one has explained why Reichardt’s model number has a “C” appended or what this
might mean for the purposes of numerosity.

3

All these headaches (and more) also afflict the ES300 Ohio subclass. Again, Plaintiffs do
not explain whether the 400,000 Ohio sales they identify encompass only ovens equipped with
ES300 controls; Plaintiff Hart is not an adequate representative for consumers who purchased
ranges that do not contain the ES300. Nor do Plaintiffs recalculate the approximate class size after
redefining the ES300 subclass to exclude gas oven ranges. (ECF No. 135 at 6.) Worse still,
Plaintiffs further narrow the ES300 subclass to exclude even electric ranges equipped with ES300
control boards if those ranges were manufactured after 2003. (Id.) The sales data spreadsheet—
the sole foundation for Plaintiffs’ class size estimate—does not state when a particular model was
manufactured. (See ECF No. 124.) There is, thus, nothing in the record that identifies anyone
besides Plaintiff Hart who meets the proposed class definition. 400,000 is a blind guess. That is
insufficient to carry Plaintiffs’ burden.
B. The Wisconsin (ES1000) and Illinois (ES100) Subclasses Do Not Satisfy
Typicality/Adequacy.
“In many cases . . ., the requirement of typicality merges with the further requirement that
the class representative “‘will fairly and adequately protect the interests of the class.’” CE Design
Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 724 (7th Cir. 2011) (quoting Fed. R. Civ. P.
23(a)(4))). But whether she is atypical or inadequate, caselaw is clear that “[w]here it is predictable
that a major focus of the litigation will be on an arguable defense unique to the named plaintiff or
a small subclass, then the named plaintiff is not a proper class representative.” Koos v. First Nat’l.
Bank of Peoria, 496 F.2d 1162, 1164 (7th Cir. 1974). In this case, Plaintiffs Reichardt and Stukas
face unique defenses, rendering both inappropriate subclass representatives.
Under the terms of its homeowner’s insurance policy with Reichardt, Allstate became
subrogated to Reichardt’s right to recover from Electrolux when she accepted payment for the
smoke and fire damage allegedly caused by her defective oven range. (ECF No. 130-10 at 35.)
Allstate and Electrolux settled, and Allstate signed a general release, arguably relinquishing the
very claims that Reichardt now brings. (ECF No. 130-23 at 2.) This calls Reichardt’s typicality
and adequacy into question. The Seventh Circuit has approvingly cited In re Schering-Plough
Corporation ERISA Litigation, 589 F.3d 585 (3d Cir. 2009) where the Third Circuit similarly
found a proposed class representative inadequate because “the release that she signed gave rise to
a possible defense that was unique to her; indeed, it was possible that she might not have a
monetary stake in the outcome at all.” Spano v. The Boeing Co., 633 F.3d 574, 584 (7th Cir. 2011).
In this case, while Plaintiff Reichardt did not, herself, sign the general release, the same logic

applies. Reichardt is “subject to a [substantial] defense that would not defeat unnamed class
members.” Randall v. Rolls-Royce Corp., 637 F.3d 818, 824 (7th Cir. 2011). If that defense
succeeds, “she would sink the absent members’ claims even though they might have prevailed had
the charge been led by a class representative unburdened by [her unique baggage].” Al Haj v.
Pfizer, Inc., 17-C-6730, 2020 WL 1330367, at *3 (N.D. Ill. Mar. 23, 2020).
Reichardt contends that her prosecutorial diligence over the past 70 months eliminates any
adequacy concerns. (ECF No. 135 at 11.) The concern, however, is not with her commitment to
this lawsuit but the comparative weakness of her claims, see Randall, 637 F.3d at 824, and the
divergent incentives that might entail. See Spano, 633 F.3d at 585. “A representative plaintiff
should not be permitted to impose such a disadvantage on the class.” Koos, 496 F.2d at 1165.
Reichardt is therefore an improper representative.
As for Stukas, her 2018 bankruptcy looms large. “Under [Section] 541 of the Bankruptcy
Code, all of a debtor’s property, including legal claims, become part of the bankruptcy estate at
the time the petition is filed.” Matthews v. Potter, 316 F. App’x 518, 521 (7th Cir. 2009). And if
a debtor fails to schedule a claim on her bankruptcy petition, judicial estoppel may prevent her
from later raising that claim for her own benefit. See Cannon-Stokes v. Potter, 453 F.3d 446, 447
(7th Cir. 2006). Instead, the claim “forever remains property of the estate, and the trustee remains
the real party in interest.” Matthews, 316 F. App’x at 521.
Stukas did not disclose her claim against Electrolux on her bankruptcy petition. (ECF No.
130-15.) That claim therefore belongs to her estate (and creditors). Under virtually identical
circumstances, at least one other court in this circuit has held that this means Stukas “cannot be
the class representative.” Franks v. MKM Oil, Inc., No. 10-CV-00013, 2012 WL 3903782, at *9
(N.D. Ill. Sept. 7, 2012). That holding makes sense. If the named plaintiff lacks standing, then
her interests are quite likely to diverge from those of the unnamed class members, and she risks
sinking otherwise meritorious claims. Accordingly, the Court finds that Stukas is not an adequate
class representative.

CONCLUSION
None of Plaintiffs’ six proposed classes satisfy the requirements of Fed. R. Civ. P. 23.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Class Certification, ECF No. 119,
is DENIED.
Dated at Milwaukee, Wisconsin on March 10, 2023.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge