Seventh Circuit: "Predominance Is a Question of Efficiency

The question of Rule 23(b)(3) predominance has become an increasingly thorny one for courts ruling on class certification motions, in no small part due to the Supreme Court's landmark 2011 opinion in Wal-Mart Stores, Inc. v. Dukes. It was thus a refreshing development when a recent Seventh Circuit opinion undertook to address predominance in strikingly simple terms.

"Predominance is a question of efficiency," wrote Judge Richard Posner in Butler v. Sears, Roebuck and Co. "Is it more efficient, in terms both of economy of judicial resources and of the expense of litigation to the parties, to decide some issues on a class basis or all issues in separate trials?"

The underlying lawsuit involved a class action involving a pair of defects in Sears washing machines. With respect to one defect, which allegedly caused mold buildup in the machines, the district court denied class certification on the ground that the manufacturer made several design modifications, as a