Bowman and Brooke Logo


May 28, 2013

"Predominance" in Class Action Certification Analysis: Is the Seventh Circuit Clarifying the Concept or Blurring It?

Related Topics
news icon

In determining when multiple claims against a defendant can be consolidated into a class action, the Federal Rules of Civil Procedure require that the issues in common among the separate cases predominate over issues which are particular to individual cases. “It is only where this predominance exists that economies can be achieved by means of the class action device,” states Rule 23(b)(3).

In a recent decision in Butler v. Sears, Roebuck and Co., however, the Seventh Circuit appears to equate predominance with efficiency, rather than see efficiency as a result of predominance.

In an article in Law360, "Airing Class Action Dirty Laundry In Washer Mold Cases," Bowman and Brooke partner Robert L. Wise and associate Isaac W. Messmore, argue that the Seventh Circuit's decision in Butler blurs the concept of predominance, and threatens to open a flood gate for class actions against companies in multiple industries.