November 5, 2013

Clang! Round two in the moldy washer cases

By Deborah J. La Fetra Senior Attorney

Last year, the Sixth and Seventh Circuit Courts of Appeals both certified massive classes of consumers in a lawsuit claiming that washing machines sold by Sears and Whirlpool were defectively designed such that some of them developed a “biofilm” that resulted in musty odors.  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, 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.

Alas, on remand, both Circuit Courts doubled-down on their determination to certify the classes despite wide-ranging problems with certification relating to significant differences among the plaintiffs’ claims, dozens of different washer designs, and the need to apply consumer protection laws of a variety of states.   Moreover, the courts brushed aside concerns that only a very small fraction of the class members actually experienced the musty odors or any other alleged injury.  The presence of a majority of uninjured plaintiffs within the class raises important constitutional issues about Sears’ and Whirlpool’s due process rights to defend themselves on individual questions raised by the plaintiffs, as well as the Constitution’s Article III requirement that all plaintiffs in federal court demonstrate “standing,” that is, an injury.  So, once more Sears and Whirlpool are asking the Supreme Court to step in.  And as before, PLF filed an amicus brief supporting both petitions.  Let’s hope that this time the Supreme Court not only grants the petitions, but actually decides the issues presented, making this the final round of this lengthy litigation.

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