United States: Avoiding The Efficiency Trap

Last Updated: January 17 2013
Article by Joshua D. Dunlap

As recently discussed on this blog, the Seventh Circuit – in an opinion authored by Judge Posner – reversed a district court's denial of class certification regarding claims involving Whirlpool washing machines that allegedly had a defect that caused mold to build up in the machines.  To briefly recap: in that case, Butler v. Sears, Roebuck & Co. , Judge Posner rejected two notable arguments:  first, that certification should be denied because Whirlpool had made a number of design modifications, as a result of which different models were differently defective and some not at all, and second, that certification should be denied because most members of the plaintiff class did not experience a mold problem.  As to the first argument, Judge Posner opined that  "Predominance is a question of efficiency," and concluded that the question of defect could be decided on a common basis and could most efficiently be handled in a class action.  He also concluded that the problem of varying damages could likely be remedied by agreement "on a schedule of damages."  As to the second argument, Judge Posner concluded that, if "most members of the plaintiff class did not experience a mold problem," then "that is an argument not for refusing to certify the class but for certifying it and then entering a judgment that will largely exonerate Sears."  As the prior post on this decision pointed out, Judge Posner's decision seemed to elevate efficiency concerns over the defendant's rights and interests.

A recent decision from the Central District of California, In Re Toyota Motor Corp. Hybrid Brake Marketing Sales Practices and Products Liability Litigation, avoids the efficiency trap that ensnared the Seventh Circuit in Butler.  In re Toyota involved the well-publicized claim that certain Toyota vehicle models had a defect in the anti-lock brake system ("ABS") that caused the ABS to improperly engage when it was not needed, resulting in increased stopping time and distance.  Toyota voluntarily recalled the vehicles and offered to install a software update to remedy the alleged defect.  Nevertheless, the putative class representatives claimed that the braking defect had not been cured and sought damages.  The court denied class certification, finding that common issues did not predominate. 

According to the court, the critical issue – namely, whether there was a defect in the ABS that caused actual injury – could not be accomplished through common proof.  "Most problematic," the court held, was that "the substantial majority of class members never suffered an actual injury."  The plaintiffs never contradicted the "substantial evidence" presented by Toyota that its software update had remedied any defect in the ABS. Instead, they relied on the theory that they suffered actual injury because "they would not have paid [the] same purchase price for each of their vehicles had they known of the problem with the ABS."  (In a separate but contemporaneous order granting Toyota's motion for summary judgment in Choi v. Toyota Motor Sales, U.S.A., Inc., the judge held that this "benefit-of-the-bargain" argument did not establish actual injury).  The court  concluded that "[m]erely offering a creative damages theory does not establish the actual injury that is required to prevail on their product liability claims," and went on to hold that "Plaintiffs' proposal  to certify a class of thousands of owners . . ., then determine which few suffered an actual injury that resulted from a manifest defect in the ABS would render the class action device nothing more than a façade for conducting a small number of highly individualized, fact-intensive cases."

While the In re Toyota court also supported its predominance analysis in terms of efficiency, it differs markedly from Judge Posner's analysis in Butler.  Most notably, the In re Toyota court recognized that a class should not be certified where few, if any, putative class members have suffered any injury. Asserting, as Judge Posner did, that a defendant should welcome the certification of a class of largely uninjured individuals because of efficiency ignores the very real pressure on defendants to settle large class actions because of the cost of such actions, as well as the publicity that such actions engender.  As the Seventh Circuit had previously written in Kohen v. Pacific Investment Management Co., 

a class should not be certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant, if only because of the in terrorem character of a class action.  When the potential liability created by a lawsuit is very great, even though the probability that the plaintiff will succeed in establishing liability is slight, the defendant will be under pressure to settle rather than to bet the company, even if the betting odds are good.

By the same token, the In re Toyota court recognized that certifying classes with large numbers of uninjured members disregards the principle, recognized in cases like Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., that, if proof of the fact of damage requires individualized factual  determinations, the predominance of such individualized issues precludes class certification.  In short, the In re Toyota court acknowledged that efficiency is not the only goal of the class action, and that the class action is not always efficient. And thus it avoided Judge Posner's efficiency trap.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Joshua D. Dunlap
Similar Articles
Relevancy Powered by MondaqAI
Pierce Atwood LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Pierce Atwood LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions