Words matter, and never is that more accurate than in a breach of express warranty claim. Plaintiffs were current and former employees of Delta Air Lines who wore uniforms manufactured by defendant Lands’ End. Plaintiffs originally alleged that the uniforms were defective because they transferred dye onto clothing and other property, and because they caused health problems, including skin rashes, hair loss, and headaches. Plaintiffs then moved to certify classes under Federal Rule of Civil Procedure 23 for two of their claims: (1) breach of an express warranty guaranteeing 100% satisfaction with the uniforms; and (2) breach of an express warranty guaranteeing that the uniforms would be free of defects in material and workmanship.

Some background: in 2016, Lands’ End contracted with Delta to manufacture uniforms for Delta employees.  Lands’ End warranted that the Delta uniform would:
(1) Conform to the d Samples, general specifications, and meet the wear life expectancies for each Product as specified….;
(2) Meet all applicable regulatory requirements;
(3) Be suitable for its intended use before the public; and
(4) Be free of defects in material and workmanship.

Lands’ End then manufactured nearly 100 different garments as part of the Delta uniform, including dresses, skirts, shirts, blouses, sweaters, jackets, and pants. Various chemical additives and finishes were used during the manufacturing process to make the garments stretchy, wrinkle- and stain-resistant, waterproof, anti-static, and deodorizing. Different chemical treatments were applied to different garments comprising the Delta uniform.

Since the Delta uniform launch in May 2018, the uniforms have been worn by approximately 64,000 Delta employees.  But between June 2018 and July 2019, Lands’ End received 2,470 complaints from Delta employees about the uniforms. Lands’ End divided the complaints into the following categories: skin irritation (1,192); allergies (419); and crocking (358). Lands’ End also received complaints that did not fall into these categories, including complaints about hair loss and headaches.

Plaintiffs sought certification of a nationwide class of Delta employees who were not 100% satisfied with the uniforms provided by Lands’ End. Both sides sought summary judgment on this breach of warranty claim.

In some cases, courts decide motions for class certification before ruling on summary judgment. Costello v. BeavEx, Inc., 810 F.3d 1045, 1057 (7th Cir. 2016). But courts may consider a dispositive motion before deciding class certification when doing so would be more efficient. Id. at n.3. See also Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir. 1995) (explaining that it was appropriate for court to consider defendant’s summary judgment motion before deciding class certification). In this instance, the court concluded it was more efficient to consider the parties’ cross-motions for summary judgment on plaintiffs’ 100% guarantee claim.

Plaintiffs’ argument in support of summary judgment on this claim was straightforward. Plaintiffs were unsatisfied with the uniforms provided by Lands’ End. And because they were unsatisfied, Lands’ End had breached the express warranty provision by failing to provide them with refunds.
But, said the court, plaintiffs’ argument ignored the other language of the express warranty provision.   The contract stated that an unsatisfied, active Delta employee could obtain a refund or exchange from Lands’ End by returning the uniform piece to Lands’ End with a return or exchange form. Lands’ End would then process the return within four business days, providing the employee either a monetary refund or allotment credit, depending on how the uniform item was purchased. So to succeed on a breach of warranty claim under this provision, plaintiffs would need to show that they were active Delta employees who returned their uniform pieces with the proper form, but Lands’ End refused to provide them a refund or exchange.

Here, plaintiffs did not even allege that they tried to return their uniforms, let alone submit evidence showing that Lands’ End refused to provide them a refund. In contrast, Lands’ End submitted evidence showing that it never denied a refund or exchange to any named plaintiff who asked for one according to the proper procedures.  And that employees who did follow the process were able to exchange or receive refunds for their uniform pieces. Because plaintiffs have submitted no evidence showing that that any Delta employee returned a uniform piece according to the UAA return procedures but was denied a refund by Lands’ End, Lands’ End was entitled to summary judgment on this claim.

Interestingly, plaintiffs then suggested that the court could grant “conditional summary judgment,” and require plaintiffs to return their uniforms to Lands’ End before receiving a refund. Plaintiffs cited no legal authority that would permit a court to condition summary judgment on the parties performing specific acts. And plaintiffs did not explain why they need a court order to direct Lands’ End to comply with a warranty provision that they have agreed to comply with already.

Plaintiffs also contended that Lands’ End breached another express warranty —that the Delta uniforms would be “free from defects in material and workmanship”—by providing uniforms that crocked and transferred dye onto clothing and other personal property. Lands’ End did not move for summary judgment on this claim, so the court did address plaintiffs’ motion for class certification of this claim.

Plaintiffs’ effort to certify a nationwide class of Delta employees who have experienced the bleeding of colors and/or crocking onto their personal property from the uniforms floundered as plaintiffs had not shown that the proposed class meets the commonality requirements of Rule 23(a)(2). Under that requirement, a class action must involve “questions of law or fact common to the class.” Closely related is Rule 23(b)’s requirement that common questions predominate over questions affecting individual class members. An issue of fact or law is common only if it is capable of classwide resolution. Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 374 (7th Cir. 2015). In other words, class certification is appropriate only if the common questions have common answers. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (citation omitted).  Neither plaintiffs’ nor their expert’s assertion that the uniforms were defective was sufficient to establish a breach of warranty on a classwide basis. Plaintiffs pointed to nothing in the warranty promising that the garments will never crock nor that any amount of crocking is a defect. With respect to crocking, the specifications actually stated that the uniforms would meet certain testing standards relating to crocking and would be colorfast within industry tolerances. Even plaintiff’s expert admitted that it is impossible to totally avoid crocking with some colors, and that some amount of crocking is acceptable within the industry. So plaintiffs could not rely on their assertion of defectiveness to prove their claim on a classwide basis. And plaintiffs failed to put forth any other evidence that would help them prove, on a classwide basis, that each class member who experienced crocking had a uniform piece that failed to meet industry tolerances and testing requirements.

At this stage, the court made clear it was not evaluating plaintiffs’ evidence to determine whether plaintiffs are likely to succeed on their claims. Plaintiffs do not need to prove that they will prevail on the merits to establish that there are issues are common to the class. See Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). But plaintiffs must show that the requirements of Rule 23 are met, and the court must make whatever factual and legal inquiries are necessary to determine if the requirements of Rule 23 are met, even if those inquiries overlap with the merits. Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010). This requires the court to “walk a balance between evaluating evidence to determine whether a common question exists and predominates, without weighing that evidence to determine whether the plaintiff class will ultimately prevail on the merits.” Bell, 800 F.3d at 377.

Plaintiffs’ ability to show a defect on a classwide basis was also complicated by the fact that Lands’ End provided nearly 100 different uniform pieces, produced by different manufacturers, to different specifications, and made with varying fabrics, dyes, and performance finishes. The various garments were worn by Delta employees in a variety of work situations, and the vast majority of them did not have crocking problems. Lands’ End also submitted evidence showing that crocking can be caused by misuse of a garment, such as by failing to follow laundering instructions. So plaintiffs had not made a convincing argument that common issues could be resolved on a classwide basis in light of these numerous individualized differences. Plaintiffs’ proposed classwide resolution could not account for what uniform piece class members wore, how the class members treated their garments, the amount of crocking class members experienced, the amount of property damage that occurred, if any, or whether the class members already received compensation from Lands’ End for damaged property.

Finally, under the superiority prong, plaintiffs’ plan for identifying class members presented “significant challenges.” Plaintiffs proposed that they would identify class members by reviewing employee complaints about crocking, employee lawsuits about crocking, and employee requests for reimbursement for damage to personal property from crocking. But admitted this wouldn’t be enough. Although they don’t say so explicitly, plaintiffs seemed to be proposing that they would need to send out notices to the approximately 64,000 Delta employees who have worn the Lands’ End uniform to determine which employees experienced crocking. This proposed individualized inquiry would present a significant burden that is not justified in light of the problems with the proposed class identified above. For all of these reasons, plaintiffs’ motion to certify the crocking class under Rule 23 was denied.

Photo of Sean Wajert Sean Wajert

Sean P. Wajert is a partner at Shook, Hardy & Bacon LLP, and the Managing Partner of Shook’s Philadelphia office.  He concentrates his complex litigation practice on the defense of companies from a variety of industries, including the chemical, consumer product, drug and…

Sean P. Wajert is a partner at Shook, Hardy & Bacon LLP, and the Managing Partner of Shook’s Philadelphia office.  He concentrates his complex litigation practice on the defense of companies from a variety of industries, including the chemical, consumer product, drug and medical device industries.  His practice focuses on complex commercial litigation, mass tort, toxic tort and product liability litigation, and appellate work. For a decade he served as Chair of the Products Liability Group of his prior firm.  Sean also taught complex litigation issues for ten years as a Lecturer-in-Law at the University of Pennsylvania Law School.