Glazer v. Whirlpool: In Post-Comcast Review, Sixth Circuit Again Upholds Grant of Class Certification

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In a major victory for consumers, the Sixth Circuit Court of Appeals has, for a second time, affirmed a district court’s class certification ruling, this time in light of the more rigorous standards imposed by the U.S. Supreme Court’s recent ruling in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). Insofar as some had speculated that Comcast rendered class certification impossible as a practical matter, the Sixth Circuit’s ruling is among the most significant class action jurisprudence developments of 2013 thus far. See Glazer v. Whirlpool Corp., No. 10-4188, (6th Cir. July 18, 2013) (slip opinion available here).

The underlying multi-district consolidated action pending in Ohio’s Northern District alleges that Whirlpool’s “front-loading washing machines (the Duets) allow mold and mildew to grow in the machines, leading to ruined laundry and malodorous homes.” Slip op at 2. Following the district court’s certification of a class, the Sixth Circuit heard an interlocutory appeal pursuant to Federal Rule 23(f) and affirmed the trial court’s grant of certification, yielding a decision now known as “Whirlpool I”. 

Whirlpool persisted, unsuccessfully petitioning the Sixth Circuit for en banc rehearing and then filing a certiorari petition with the U.S. Supreme Court, which was granted. This resulted in the Supreme Court remanding the case to the Sixth Circuit (not the trial court) under the “grant, vacate, and remand” procedural device, which specifically directed the Sixth Circuit to reconsider Whirlpool’s Rule 23(f) appeal in light of Comcast v. Behrend. Slip op. at 2-3. Notwithstanding Comcast, the Sixth Circuit reconsidered its prior ruling but reached the same conclusion: affirming the district court order certifying a class for the determination of liability. See slip op. at 3.

The Sixth Circuit’s decisive analysis, under the often-dispositive rubric of determining whether common questions of law or fact predominate, distinguishes Comcast as follows: “Here the district court certified only a liability class and reserved all issues concerning damages for individual determination; in Comcast Corp. the court certified a class to determine both liability and damages. Where determinations on liability and damages have been bifurcated, see Fed. R. Civ. P. 23(c)(4), the decision in Comcast—to reject certification of a liability and damages class because plaintiffs failed to establish that damages could be measured on a classwide basis—has limited application.” Slip op. at 27. Consequently, plaintiffs’ counsel will likely style class actions akin to the liability-damages bifurcation in Glazer v. Whirlpool that kept the Sixth Circuit’s predominance analysis outside the ambit of Comcast.

Additionally, the decision, known as “Whirlpool II”, represents some pushback with respect to another relatively recent Supreme Court decision thought to spell trouble for the future of class actions, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), which some Court observers presumed to open the class certification inquiry to a full-scale determination on the merits. Seizing on Dukes, Whirlpool argued that the district court had committed reversible error by avoiding “several questions of fact arising from the evidence presented by the parties in connection with the motion to certify a class.” Slip op. at 13. However, the Sixth Circuit held that the “rigorous analysis” mandated by Dukes does not imply that a trial court must engage in the extensive merits-based determinations advocated for by Whirlpool. See slip op. at 13-14.