Opinion
CASE NO. 1:16-CV-1114
06-20-2017
KENNETH CHAPMAN et. al., Plaintiffs, v. TRISTAR PRODUCTS, INC., Defendant.
OPINION & ORDER
[Resolving Docs. 78, 79, 83, 84] :
Plaintiffs Kenneth Chapman, Jessica Vennel, and Jason Jackson bought pressure cookers ("Cookers") from Defendant Tristar. Plaintiffs allege that the Defendant's Cookers have a design defect that "allows users to open the pressure cooker while [the pressure cooker] still contains a significant and dangerous amount of pressure." Plaintiffs allege this defect makes the Cookers worthless and seek a full purchase price refund.
Doc. 1 ¶¶ 35-46. Plaintiffs Chapman, Vennel, and Jackson reside in Ohio, Pennsylvania, and Colorado, respectively.
Id. ¶ 33.
Doc. 47 at 9-10.
On April 24, 2017, this Court granted class certification to Cooker purchasers residing in Ohio, Pennsylvania, and Colorado. Tristar now moves to decertify the Class, arguing that the Plaintiffs' damages model fails to satisfy the requirements set by the Supreme Court in Comcast Corp. v. Behrend. For the following reasons, the Court DENIES Defendant's motion to decertify and BIFURCATES the July 10, 2017 trial.
Doc. 69.
___ U.S. ___, 133 S. Ct. 1426, 1433 (2013); Doc. 79.
I. Decertification Standard
"A district court 'retains the ability to monitor the appropriateness of class certification throughout the proceedings and to modify or decertify a class at any time before final judgment.'" The court has a continuing obligation to ensure that the Rule 23 requirements are met. This includes ensuring that common issues continue to predominate over individual issues and that class treatment "is superior to other methods for fairly and efficiently adjudicating the controversy."
Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084, 1090 (6th Cir. 2016) (citing In re Integra Realty Resources, Inc., 354 F.3d 1246, 1261 (10th Cir. 2004)).
See Powel v. Tosh, 2013 WL 4418531, *2 (W.D. Ky. Aug. 2, 2013 ) ("The Sixth Circuit recognizes that district courts have a 'continuing obligation to ensure that the class certification requirements are met, and [may] alter or amend the certification order as circumstances change.'") (quoting Randleman v. Fidelity Nat'l Title Ins. Co., 646 F.3d 347, 352 (2011)); see also Fed. R. Civ. P. 23(c)(1)(C) ("An order that grants or denies class certification may be altered or amended before final judgment.").
II. The Court upholds the Class but bifurcates the trial
Plaintiffs' damages model requests a full refund of the "worthless" Cookers for each Class member. Plaintiffs say a jury could determine damages by multiplying the Cookers purchased by the Cookers' purchase price.
Doc. 47 at 10.
Id.
When we granted class certification, this Court found Plaintiffs' damages model fit their liability theory, as Comcast requires. Plaintiffs' model and theory still align. However, individual Class members' damages differ and the Class's size is uncertain. Therefore, the Court will bifurcate the upcoming trial. First, we will try Tristar's liability as a class action. Afterwards, if necessary, the parties will address damages.
Doc. 69 at 14; Comcast Corp. v. Behrend, ___ U.S. ___133 S. Ct. 1426, 1433 (2013) ("[T]he model failed to measure damages resulting from the particular antitrust injury on which petitioners' liability in this action is premised.").
In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 854 (6th Cir. 2013) ("No matter how individualized the issue of damages may be, determination of damages may be reserved for individual treatment with the question of liability tried as a class action.") (internal quotations omitted).
Plaintiffs' full refund damages model satisfies Comcast
Defendant Tristar argues that Plaintiffs' model has two fatal problems. First, the Cookers' retail price fluctuated. Second, Defendant says that Plaintiffs have no idea how many Cookers third-party retailers sold in Ohio, Pennsylvania, and Colorado. Tristar questions how a jury could calculate damages if it does not know how many Cookers were sold and at what price.
Doc. 79 at 4.
Id. at 4-5.
As to Tristar's first argument, the Cookers' fluctuating sales prices do not present a fatal Comcast problem. Comcast requires a class to align its damages with its claim. Here, Plaintiffs say the Cookers are worthless so they should receive a full refund. In response, Tristar denies that the Cookers have any defect and denies that the cookers are worthless even if any defect is found.
Plaintiffs' claim fits comfortably with their damages model. That Class members bought Cookers at different prices than other members does not necessitate decertification. After all, "[i]t would drive a stake through the heart of the class action device, in cases in which damages were sought . . . to require that every member of the class have identical damages."
Brown v. City of Detroit, 2014 WL 7074259, at *3 (E.D. Mich. Dec. 12, 2014) ("[T]he Sixth Circuit held that the presence of individualized damages cannot, by itself, defeat class certification under Rule 23(b)(3)") (citing Whirlpool, 722 F.3d at 844)). According to Tristar, Kohl's currently sells Cookers ranging in price from $109.99 to $159.99. Doc. 79 at 4.
Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013).
Tristar's second decertification argument also loses. Tristar says that Plaintiffs have failed to show how many Cookers third-party retailers sold in Ohio, Pennsylvania, and Colorado. Tristar reasons that the Plaintiff Class cannot show its damages are "capable of measurement" without a more concrete sense of how many Cookers are actually involved with this lawsuit.
Doc. 79 at 4.
Comcast, 133 S. Ct. at 1433.
Although class uncertainty has Comcast implications, Tristar's argument really goes to whether the Class is sufficiently ascertainable. "For a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria." So long as Plaintiff can use "traditional methods and models to identify class members" with reasonable accuracy, a class can be sufficiently ascertainable even when purchasers buy a product from a third party retailor. For instance, the Sixth Circuit upheld a class whose members had purchased nutritional supplements from third party retailers across five states.
Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012) (quoting Moore's Federal Practice § 23.21[3]).
Rikos v. Procter & Gamble Co., 799 F.3d 497, 524-27 (6th Cir. 2015).
Id.
Here, Plaintiffs can collect Tristar's online sales data. Plaintiffs can also retrieve sales information from retailers. "Store receipts and affidavits can supplement these methods." With this information, the Class will be sufficiently ascertainable and damages will be "capable of measurement."
Id. at 527. The Class here is inherently easier to ascertain than the Rikos class. A nutritional supplement disappears after use; a pressure cooker does not.
Comcast, 133 S. Ct. at 1433.
Tristar asks, in the alternative, that the Court shrink the Class to "1) customers who purchased a Pressure Cooker directly from Tristar; and 2) claims that can be brought by Class Members in privity with Tristar." For the reasons just discussed, the Court denies this request.
Doc. 84 at 4.
The Court bifurcates the upcoming trial
Although we decline to decertify the class, Tristar's arguments have convinced the Court to bifurcate this trial's liability issues from its damages issues.
Brown v. City of Detroit, 2014 WL 7074259, at *3 (E.D. Mich. Dec. 12, 2014) ("But even after Comcast, the Sixth Circuit has emphasized that bifurcating liability from damages is still a viable approach.").
As to liability, a jury will determine (1) whether the Cookers have a defect, and, (2) if so, whether the defect makes the Cookers worthless. These two legal questions satisfy Rule 23's typicality, commonality, and predominance requirements and they will be the subject of July 10's trial.
The jury may have to answer some other liability questions as to, for instance, the Colorado implied warranty claim or the Ohio strict liability claim. However, this lawsuit's essential two questions remain (1) whether the Cookers have a defect, and, (2) is so, does the defect make the Cookers worthless.
Doc. 69.
If a jury answers yes to both those questions, then the parties will turn to damages. "The damages of individual class members can be readily determined in individual hearings, in settlement negotiations, or by creation of subclasses."
Butler v. Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013). --------
III. Conclusion
For the foregoing reasons, this Court DENIES Tristar's motion to decertify the Class and BIFURCATES the July 10, 2017 trial.
IT IS SO ORDERED. Dated: June 20, 2017
s/ James S . Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE