On September 3, 2013, the United States filed a petition for en banc and panel rehearing of the Seventh Circuit’s July 8, 2013 opinion in United States v. Midwest Generation, LLC. Resurrecting its prior arguments, the government asserts that the panel’s interpretation of the Clean Air Act’s Prevention of Significant Deterioration (PSD) requirements was “flawed” and that a violation of the PSD statute is continuing in nature.
The U.S. Court of Appeals for the Seventh Circuit recently upheld a joint arbitration committee’s (“JAC”) decision finding that a business’s “double-breasting” arrangement violated a collective bargaining agreement. The decision provides two important reminders — one procedural and the other substantive.
To reach a decision it issued on August 22, 2013, the U.S. Court of Appeals for the Seventh Circuit was required to read some serious Supreme Court tea leaves and we found the results to be pretty interesting. In Butler v. Sears, Roebuck and Co., No. 11-8029 (7th Cir. Aug. 22, 2013), the Seventh Circuit reinstated its earlier order allowing certification of a class action involving allegations that consumers bought washing machines that collected mold and suddenly broke down.
One of the key questions in the aftermath of the Supreme Court’s recent decision in Comcast Corp. v. Behrend is the extent to which damages must be susceptible to classwide calculation in order to justify class certification. In particular, the question is as follows: When the Comcast Court held that class certification was improper because the plaintiff had failed to demonstrate that “damages are capable of measurement on a classwide basis,” did it mean that Rule 23(b)(3) certification is never proper if damages cannot be determined on a classwide basis?