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Sears v Butler


Coming up on the Supreme Court class action docket next week: the certiorari petition in Sears v. Butler. In yet another class action over alleged defects causing biofilm in washing machines, a Judge Posner opinion took the position that the class-action mechanism was appropriate to resolve a single issue, following the Whirlpool v. Glazer decision we criticized earlier, and which the Supreme Court GVR'd in the wake of Comcast v. Behrend.

As the opposition to certiorari notes, the case is in a strange procedural posture: there is no class certification order as of yet (though the Seventh Circuit's ruling would seem to all but dictate one on remand). The Supreme Court has yet to grant certiorari on a Rule 23(f) remand decision, but nothing precludes them from doing so, and this may well be a good case to re-assert Rule 23(b)(3) predominance standards. Related: Washington Times.

(This post was corrected: it originally read "23(f) decision," when it should have said "23(f) remand decision.")


"The Supreme Court has yet to grant certiorari on a Rule 23(f) decision, but nothing precludes them from doing so"

Weren't Wal-Mart v. Dukes and Erica P. John Fund v. Halliburton both grants of certiorari from Rule 23(f) petitions?

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.