Cert denied in the moldy washer cases

February 26, 2014 | By DEBORAH LA FETRA

The Sixth and Seventh Circuit Courts of Appeals twice certified massive classes of consumers in lawsuits claiming that front-loading washing machines sold by Sears and Whirlpool were defectively designed such that some of them developed a “biofilm” that resulted in musty odors.  After the first certification, Sears and Whirlpool filed petitions for writs of certiorari in the United States Supreme Court, supported by PLF amicus briefs.   The Supreme Court granted the petitions in Sears v. Butler and Whirlpool v. Glazer, vacated the appellate court decisions, and instructed the lower courts to reconsider the cases in light of the newly-decided Comcast v. Behrend, a case that emphasized the importance of common questions predominating among the class members.

However, both Circuit Courts narrowly construed and distinguished Comcast, and again certified the classes despite significant differences among the plaintiffs’ claims, dozens of different washer designs, and the need to apply consumer protection laws of a variety of states.  The courts even dismissed concerns that only a very small fraction of the class members actually experienced the musty odors or any other alleged injury, deciding that if most of the plaintiffs actually suffered no injury, then Sears and Whirlpool would prevail after a trial. This cramped approach to deciding whether a class should be certified raised important issues of federal procedure, particularly because Article III of the Constitution allows only injured plaintiffs to sue in federal court.  Sears and Whirlpool again petitioned the Supreme Court, supported by a PLF amicus brief.

Unfortunately, the Supreme Court denied certiorari in both cases.  While we can hope that either Sears or Whirlpool would actually put the plaintiffs to their proof, the reality of class certification means that there will likely be a large settlement, with the plaintiffs’ attorneys getting the biggest payoff.