Dan Churney Jan. 5, 2016, 10:27am

Acting on a motion to dismiss, a Chicago federal judge has pruned a putative class action lawsuit brought by four people against Sears, which alleges the retailer sold defective lawnmowers prone to burst into flames.

U.S. District Judge Manish S. Shah granted parts of Sears’ motion to dismiss Dec. 18, allowing the suit to continue in diminished form.

In May, plaintiffs Rebecca Rysewyk, Mary E. Rood, Brian Van Vooren and Katie Smith filed a class action suit in U.S. District Court for Northern Illinois against Hoffman Estates-based Sears Holdings Corp., Sears, Roebuck and Co., and KCD IP LLC.

Plaintiffs alleged they bought certain models of Craftsman riding mowers and lawn tractors from Sears, with inadequately secured fuel lines that can fray against moving parts and cause the engines to catch fire. Two of the plaintiffs said their engines caught fire, in one case burning down a garage. The two other plaintiffs said fuel lines came loose, but no fire resulted.

Plaintiffs want the mowers to be declared defective and Sears ordered to correct the defect. Plaintiffs also want compensation for damages. One plaintiff is from New York, one from Kentucky and two from Tennessee.

Plaintiffs alleged breaches of express and implied warranty, unjust enrichment, negligence and strict liability. Sears attacked those allegations with a motion to dismiss that prompted plaintiffs to voluntarily drop themselves from certain counts. Of the remaining counts, Sears succeeded in cutting still more, but not all.

Rood's claims for breaches of express warranty and implied warranty of merchantability were tossed. In doing so, Judge Shah said Rood did not notify Sears of the purported defect, to give Sears a chance to resolve the problem, before joining the suit.

"Pre-suit notification is the majority rule in this country," Shah observed.

Shah also dropped Rood in connection to the count seeking injunctive and declaratory relief, noting Rood had withdrawn or been dismissed from the other counts, so she could not continue to maintain a request for an injunction and declaration.

The unjust enrichment count was thrown out for all plaintiffs on the grounds the laws of each plaintiff’s state prohibit an unjust enrichment claim from going forward when there is an express contract between the parties. Given these laws, plaintiffs collective allegations do not support a claim for unjust enrichment, as they have said such a contract was in place, the judge ruled.

Judge Shah also agreed to dismiss KCD IP from the action, because KCD IP is not alleged to have done anything other than own Sears’ intellectual property for securitization purposes, for such house brands as Kenmore and Craftsman.

However, Shah refused to kill the budding class action case.

Sears contended Shah should deny class action status, because nationwide class claims would be governed by the laws of the 50 states, so individual claims would predominate over common ones. Shah replied Sears did not explain how state laws differ and to what degree, but simply insisted the laws are different, which was not good enough for Shah.

Sears’ other tack was to argue plaintiffs set up a “fail-safe” class for the suit, in which a determination as to whether a party is a member of the class-action depends on whether the party ends up on the winning side; if the suit fails, the party is then, by definition, not a member.

As guidance, Shah cited a 7th Circuit Court of Appeals ruling from 2012.

“Defining a class so as to avoid, on one hand, being over-inclusive and, on the other hand, the fail-safe problem is more of an art than a science. Either problem can and often should be solved by refining the class definition rather than by flatly denying class certification on that basis,” the court of appeals said in Messner v. Northshore University Health System.

Given this view, Shah found the suit’s definition of class members served as a “placeholder” that gave notice of the type of plaintiffs the suit hopes to include.

In the end, the counts were pared from six to five and one plaintiff was eliminated.

Plaintiffs are represented by the firms of Wexler Wallace, of Chicago; Greg Coleman Law, of Knoxville, Tenn.; and Berger & Montague, of Philadelphia.

Defendants are represented by New York-based Skadden, Arps, Slate, Meagher & Flom, which has an office in Chicago.

A status hearing is set for Jan. 8.

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Organizations in this Story

Sears Holdings Corporation
3333 Beverly Rd
Hoffman Estates, IL 60179

Skadden, Arps, Slate, Meagher & Flom LLP
155 North Upper Wacker Drive
Chicago, IL 60606

Wexler Wallace LLP
55 West Monroe Street
Chicago, IL 60603

Greg Coleman Law, PC
550 Main St W
Knoxville, TN 37902

Berger & Montague, P.C
1622 Locust Street
Philadelphia, PA 19103

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