Dzielak v. Whirlpool Corp.

• Docket Number: 20-2551,20-2661
• Decision Date: 29 September 2023
• Citation: Dzielak v. Whirlpool Corp., 83 F.4th 244 (3rd Cir. 2023)
• Parties: Charlene DZIELAK; Shelley Baker; Francis Angelone; Brian Maxwell; Jeffery Reid; Kari Parsons; Charles Beyer; Jonathan Cohen; Jennifer Schramm; Aspasia Christy, on behalf of themselves and all others similarly situated, v. WHIRLPOOL CORPORATION; Sears Holdings Corporation; Home Depot USA Inc; Fry's Electronics Inc.; Appliance Recycling Centers of America Inc; Lowe's Home Centers, LLC [83 F.4th 245] Charlene Dzielak; Shelley Baker; Francis Angelone; Brian Maxwell; Jeffery Reid; Kari Parsons; Charles Beyer; Jonathan Cohen; Jennifer Schramm; Aspasia Christy, Appellants in 20-2551 Whirlpool Corporation, Appellant in 20-2661.
• Court: U.S. Court of Appeals — Third Circuit

83 F.4th 244

Charlene DZIELAK; Shelley Baker; Francis Angelone; Brian Maxwell; Jeffery Reid; Kari Parsons; Charles Beyer; Jonathan Cohen; Jennifer Schramm; Aspasia Christy, on behalf of themselves and all others similarly situated, v.WHIRLPOOL CORPORATION; Sears Holdings Corporation; Home Depot USA Inc; Fry's Electronics Inc.; Appliance Recycling Centers of America Inc; Lowe's Home Centers, LLC Charlene Dzielak; Shelley Baker; Francis Angelone; Brian Maxwell; Jeffery Reid; Kari Parsons; Charles Beyer; Jonathan Cohen; Jennifer Schramm; Aspasia Christy, Appellantsin 20-2551 Whirlpool Corporation, Appellantin 20-2661.

No. 20-2551

No. 20-2661

United States Court of Appeals, Third Circuit

Argued: May 24, 2022

Filed: September 29, 2023

On Appeal from the United States District Court for the District of New Jersey(D.C.No. 2:12-cv-00089), District Judge: Hon. Kevin C. McNulty

Neal J. Deckant[ARGUED], Bursor & Fisher, 1990 N. California Boulevard, Suite 940, Walnut Creek, CA 94596, Scott A. Bursor, Bursor & Fisher, 701 Brickell Avenue, Suite 1420, Miami, FL 10019, Counsel for Appellants/Cross-Appellees.

Antonio Vozzolo, Vozzolo LLC, 345 Route 17 S. Upper Saddle River, NJ 07548, Counsel for Appellants.

Louis Chaiten, James R. Saywell[ARGUED], Jones Day, 901 Lakeside Avenue, North Point, Cleveland, OH 44114, Counsel for Appellee/Cross-AppellantWhirlpool Corporation.

David R. Kott, McCarter & English, 100 Mulberry Street, Four Gateway Center, 14th Floor, Newark, NJ 07102, Allison R. McLaughlin, Eric L. Robertson, Wheeler Trigg O'Donnell LLP, 370 17th Street, Suite 4500, Denver, CO 80202, Counsel for Appellee/Cross-AppellantWhirlpool Corporation and AppelleesSears Holdings Corporation, Fry's Electronics, Inc., and Lowe's Home Centers, LLC.

Galen D. Bellamy, Michael T. Williams, Wheeler Trigg O'Donnell LLP, 370 17th Street, Suite 4500, Denver, CO 80202, Counsel for Appellee/Cross-AppellantWhirlpool Corporation, AppelleesSears Holdings Corporation and Fry's Electronics, Inc., and Cross-AppellantLowe's Home Centers, LLC.

Sidney S. Haskins, II[ARGUED], King & Spalding, 1180 Peachtree Street N.E., Suite 1600, Atlanta, GA 30309, Lisa B. Geraghty, Starr Gern Davison & Rubin, 105 Eisenhower Parkway, Suite 401, Roseland, NJ 07068, Counsel for AppelleeHome Depot USA, Inc.

Before: KRAUSE, BIBAS, and PHIPPS, Circuit Judges.

OPINION OF THE COURT

PHIPPS, Circuit Judge.

From its inception in 1992, the Energy Star Program has set energy efficiency standards for various categories of products and permitted approved products to bear the Energy Star logo.Three models of top-loading clothes washers were approved to display that logo, and they did so from their entry into the market in April 2009 until their discontinuation in December 2010.But under one method of measurement, those machines did not meet the Program's energy-and water-efficiency standards.Although those clothes washers did satisfy the Program's standards under another measurement technique, which the Program previously endorsed, Program guidance from July 2010 disapproved of that method.Still, those models were permitted to display the Energy Star logo until February 2011.

In January 2012, consumers in several states who had purchased those models commenced this suit as a putative class action in the District Court against the manufacturer of the clothes washers and retailers that sold those machines.Plaintiffs brought several claims, including counts for breach of express warranty and for violations of state consumer-protection statutes.All of the claims related to the allegedly wrongful display of the Energy Star logo on the three models that did not meet Energy Star standards under the July 2010 Program guidance.The District Court certified a class action against the manufacturer, but it declined to certify a class for the claims against the retailers.At summary judgment, the District Court rejected all remaining claims by the class and by the named plaintiffs, including the express-warranty and consumer-protection claims.

Plaintiffs appealed to dispute two components of the District Court's summary-judgment ruling.They now argue, first, that the District Court erred in denying their claims for breach of express warranty.And second, they challenge the District Court's judgment rejecting their statutory consumer-protection claims.

The manufacturer cross-appealed to contest class certification, but it conditioned that cross-appeal on plaintiffs' successful appeal of their class claims.

On de novo review, there is no genuine dispute of material fact, and the manufacturer and the retailers are entitled to judgment as a matter of law on the appealed issues.That conclusion obviates the need to address the manufacturer's cross-appeal, so we will affirm the judgment of the District Court.

I.BACKGROUND

A.The Origins of the Energy Star Program and Its Applicability to Clothes Washers

1.Energy Star Standards and Testing

The United States Environmental Protection Agency developed the Energy Star Program in response to the 1990Amendments to the Clean Air Act.That legislation provided further direction for a previously authorized research and development program¹ by requiring the EPA to "conduct a basic engineering research and technology program to develop, evaluate, and demonstrate nonregulatory strategies and technologies for air pollution prevention."Pub. L. No. 101-549, tit. IX, sec. 901(c), § 103(g),104 Stat. 2399, 2703(Nov. 15, 1990)(codified at 42 U.S.C. § 7403(g)).As part of its response to that mandate, the EPA introduced the Energy Star Program in 1992"as a voluntary labeling program designed to promote — and allow consumers to identify —energy-efficient computers and monitors."Gov't Accountability Off., Energy Star Program 1, 3 (2010).²

The Energy Star Program expanded over time to cover additional categories of products.In 1996, the EPA entered a Memorandum of Cooperation with the United States Department of Energy('DOE') for overseeing the Energy Star Program with respect to eight product categories, including clothes washers.³With the benefit of its experience in developing methods for measuring the energy efficiency of clothes washers for another program,⁴ DOE in 1997 announced an updated testing method, referred to as the 'J1 Test Procedure,' for measuring the two standards the Energy Star Program used to assess the energy-and water-efficiency of clothes washers: the Modified Energy Factor and the Water Factor.⁵The J1 Test Procedure went into effect in 2004.⁶

With the Energy Star Program's expansion, it received formal recognition and greater definition in statute.The Energy Policy Act of 2005 preserved Energy Star's character as a voluntary labeling program for energy-efficient products:

There is established within the Department of Energy and the Environmental Protection Agency a voluntary program to identify and promote energy-efficient products and buildings in order to reduce energy consumption, improve energy security, and reduce pollution through voluntary labeling of, or other forms of communication about, products and buildings that meet the highest energy conservation standards.

Pub. L. No. 109-58, sec. 131, § 324A(a),119 Stat. 594, 620(Aug. 8, 2005)(codified at 42 U.S.C. § 6294a(a)).The Act also identified the responsibilities that accompanied the Program's administration.Those duties, which were divided as agreed between the EPA and DOE, seeid.§ 6294a(b), included working to enhance public awareness of the Energy Star label, seeid.§ 6294a(c)(2), preserving the integrity of the label, seeid.§ 6294a(c)(3), and "promot[ing] Energy Star compliant technologies as the preferred technologies in the marketplace for ... achieving energy efficiency [and] reducing pollution,"id.§ 6294a(c)(1).

Several provisions of the Energy Policy Act also accounted for anticipated innovation in energy-efficient technologies.Congress required the agencies to "regularly update Energy Star product criteria for product categories,"id.§ 6294a(c)(4), which required an explanation of the changes, seeid.§ 6294a(c)(6), the solicitation of comments from interested parties, seeid.§ 6294a(c)(5), as well as an agency response to those comments, seeid.§ 6294a(c)(6).And, unless specified otherwise by one of the agencies, 270 days' notice was required before a "new or a significant revision to a product category, specification, or criterion" could take effect.Id.§ 6294a(c)(7).

The Energy Policy Act further directed DOE to issue new qualifying levels for clothes washers to take effect in 2009.Seeid.§ 6294a(d).DOE did so, and between 2009 and 2011, the Energy Star Program required a Modified Energy Factor of at least 1.80 and a Water Factor of no more than 7.50.SeeEnergy Conservation Program: Energy Conservation Standards for Residential Clothes Washers, 77 Fed. Reg. 32,308, 32,332-33 tbl.IV-5 (May 31, 2012)(describing historical Energy Star standards for top-loading clothes washers).By comparison, regulations at the time for standard clothes washers manufactured on or after January 1, 2007, required a Modified Energy Factor of at least 1.26 — considerably less than the Energy Star standard.See10 C.F.R. § 430.32(g)(3)(2007).And those regulations did not impose a Water Factor requirement on standard clothes washers.Seeid.⁷

2.The Energy Star Logo and Its Registration as a Certification Mark

Product labeling is a key component of the Energy Star Program.In the 1990s, the EPA had developed logos for manufacturers to identify their qualifying products as Energy Star certified.SeeENERGY, Reg.No. 2074946(filed Apr. 12, 1995, registered July 1, 1997).And in 2008, the EPA introduced the modern version of the Energy Star logo, which "consist[ed] of a cyan blue box with white writing and trim containing the word energy and a star below a curved line, with the words 'ENERGY STAR' in white in a small cyan box below the...