United States District Court, N.D. Illinois, Eastern Division
GARY MEDNICK and STEVEN BAYER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
PRECOR, INC., a Delaware Corporation, Defendant.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge United States District Court
the Court finds no manifest error of law in its Order
granting class certification, it denies Defendant Precor,
Inc.'s (“Precor”) Motion for Reconsideration
[ECF No. 174].
March 2017, the Court certified as a class Plaintiffs'
consumer fraud action. Mednick v. Precor, Inc., No.
14 C 3624, 2017 U.S. Dist. LEXIS 37694, at *1 (N.D. Ill. Mar.
16, 2017). The certification was limited since the Court
allowed the case proceed as a class only for the purpose of
determining liability and reserved issues related to damages
to individual hearings. Id. The ruling nonetheless
moved the case forward as it permits Plaintiffs to attempt to
prove the merits of their allegation that Precor had
deceptively marketed and sold treadmills incorporating
“touch sensors, ” a heart rate monitoring
technology, that Precor knew did not accurately measure its
users' heart rates.
victory was hard won for Plaintiffs. To obtain it, they had
significantly narrowed the proposed class. In their original
Motion for Class Certification, Plaintiffs had sought to
certify both a nationwide class to pursue a federal warranty
claim and a multi-state class to recover under the consumer
protection laws of 10 different states. Plaintiffs defined as
class members all those who bought Precor's exercise
equipment containing the touch sensor technology, or 20
models of treadmills, elliptical machines, and stationary
bikes in all.
Court refused to certify such a broad class. Mednick v.
Precor, Inc., No. 14 C 3624, 2016 U.S. Dist. LEXIS
75582, at *1 (N.D. Ill. June 10, 2016). It found that
Plaintiffs had not carried their burden to show that Rule
23(b)(3)'s predominance requirement was satisfied.
See, Id. at *17-23. The Court acknowledged that
whether Precor “falsely and misleadingly market[ed] the
Touch Sensors . . . on the 20 Precor machines at issue
despite knowing that they were ‘inherently
defective'” was a common issue susceptible to class
treatment. Id. at *17-18. Nonetheless, it concluded
that “[t]he nature of Plaintiffs' claims . . .
prevents the Court from finding Rule 23(b)(3)
satisfied.” Id. at *23. The Court was
concerned that Plaintiffs' “breach-of-warranty
action, coupled with a claim of fraud, poses serious problems
about choice of law, the manageability of the suit, and thus
the propriety of class certification.” Id.
(quoting Szabo v. Bridgeport Machines, Inc., 249
F.3d 672, 674 (7th Cir. 2001)) (internal quotation marks
omitted). In addition, the Court found that the following
questions, heavily relied upon by Precor in its Motion for
Reconsideration, predominated over the issue common to the
[I]s th[e] unreliability [of the touch sensors, if any]
attributable to a defect, or simply to human error?
is the unreliability due to some external factor, like the
user's age? Or their body mass? Or weight? Or their
cardio-physiology? Or the thickness or dryness of the skin on
their hands? Or their average rate of exercise?
if the product proves to be defective, is that defect present
only on a certain type of machine (treadmill, elliptical,
AMT, or stationary bike)?
is it attributable to a specific heart rate system (Alatech,
Salutron, or Polar)?
2016 U.S. Dist. LEXIS 75582 at *21-22.
failed to obtain class certification on their first try,
Plaintiffs acted to narrow the scope of their case. They
entirely dropped the warranty claim, reduced the number of
states for which they pursue the consumer fraud claims from
ten to five, and cabined the products they allege to be
deceptively marketed to just the treadmills. (Plaintiffs also
abandoned their effort to certify a class under Rule 23(b)(2)
and no longer seek injunctive relief. Because these issues
did not figure into the Court's decision to certify the
class, the Court does not discuss them any further in this
Opinion.) Thus, on the renewed Motion for Class
Certification, Plaintiffs' proposed class went from being
nationwide to covering just five states. The proposed class
products decreased from 20 models of treadmills, ellipticals,
and stationary bikes to nine models of treadmills. Moreover,
with the warranty claim gone, Plaintiff's case no longer
presented a problematic “breach-of-warranty action,
coupled with a claim of fraud.” Szabo, 249
F.3d at 674. Instead, it became a pure consumer fraud action,
and Plaintiffs worked to show that the laws of the remaining
five states were largely uniform.
Court found that this narrow class satisfied the requirements
of Rule 23. It identified as a question common to the class
the issue of whether Precor engaged in representations or
omissions that were likely to deceive a reasonable consumer.
See, Mednick, 2017 U.S. Dist. LEXIS 37694, at
*21-22. The Court further found that this common question
“predominate[d] over any questions affecting only
individual members.” See, Id. at *44-52;
Fed.R.Civ.P. 23(b)(3). In arriving at this conclusion, the
Court specifically addressed whether Plaintiffs' injuries
could be proximately caused by Precor's allegedly
deceptive promotional materials. See, Id. at *22-33.
The Court concluded that when the representations were
confined to those graphics found on the machines themselves
and any omissions Precor failed to make to the class,
Plaintiffs could carry their burden to show proximate
causation with classwide proof. See, Id. at *31-33.
The Court expressly noted that it found the case at bar
“analogous” to Suchanek v. Sturm Foods,
Inc., 764 F.3d 750 (7th Cir. 2014). Id. at *32.
Court also examined the issue of damages. It decided that the
class members' damages should be reserved to individual
hearings. See, Mednick, 2017 U.S. Dist. LEXIS 37694,
at *36-38. Nonetheless, mindful of what the Supreme Court
said in Comcast Corp. v. Behrend, 133 S.Ct. 1426
(2013), the Court scrutinized Plaintiffs' damages model.
See, Id. at *44-48. Although the Court understood
that the model that Plaintiffs submitted calculated a full
refund as a measure of the class members' damages, the
Court reasoned that this model could readily be modified to
deliver a partial refund number instead. See, Id.
The Court thus found that Comcast did not prevent
the class from being certified. Accordingly, the Court
granted Plaintiffs' motion to certify the class for the
purpose of determining liability.
asks the Court to reconsider, asserting that the Court made
multiple manifest errors of law. The Court finds no such
error upon reexamining its opinion and so denies the Motion.
Precor styled the current matter a Motion for
Reconsideration, no such motion exists under the Federal
Rules of Civil Procedure. Talano v. Nw. Med. Faculty
Found., 273 F.3d 757, 760 n.1 (7th Cir. 2001). Instead,
the Court must construe Precor's request for relief
either as a motion to alter or amend a judgment under Rule
59(e) or a motion for relief from a final order under Rule
60(b). Because Precor filed the Motion within 28 days of the
Court's class certification order and because it argues
that the Court made manifest errors of law rather than that
any new evidence has been discovered, the Court deems Precor
to be moving under Rule 59(e). See, Fed. R. Civ. P.
59(e) (requiring that a motion to alter or amend a judgment
“be filed no later than 28 days after the entry of the
judgment”); Scott v. Bender, 948 F.Supp.2d
859, 866 (N.D. Ill. 2013) (stating that an argument that a
court committed errors of law is “the province of Rule
59(e) and not Rule 60(b)”) (emphasis in
bears a heavy burden in seeking to reverse the Court's
prior ruling. See, Scott, 948 F.Supp.2d at 866
(citing Caisse Nationale de Credit Agricole v. CBI
Indus., Inc.,90 F.3d 1264, 1270 (7th Cir. 1996)).
Precor can show that the Court committed a manifest error of
law only by establishing that the Court engaged in
“wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metro.
Life Ins. Co.,224 F.3d 601, 606 (7th Cir. 2000)
(internal quotation marks omitted). In attempting to carry
its burden, Precor cannot advance arguments or theories that
the Court has previously rejected or those that “could
and should have been made before the district court rendered
a judgment.” Sigsworth v. City of Aurora, 487
F.3d 506, 512 (7th Cir. 2007) (internal quotation marks
omitted); Schilke v. Wachovia Mortg., FSB, 758
F.Supp.2d 549, 554 ...