After re-listing the “moldy washing machine” cases multiple times, the Supreme Court finally denied certiorari petitions in a trio of cases: Whirlpool Corp. v. Glazer, 722 F.3d 838 (6th Cir. 2013), Sears, Roebuck & Co. v. Butler, 727 F.3d 796 (7th Cir. 2013), and BSH Home Appliance Corp. v. Cobb, 289 F.R.D. 466 (C.D. Cal. 2012). See Supreme Court 2013 Term Order List 02/24/14 (available here). Plaintiffs in the Whirlpool and Sears suits alleged that various models of Whirlpool’s front-loading washing machines contain a design defect that causes moldy odors. Petitioners asked the Court to rule on two issues: 1) whether a class can be certified where most members did not experience the alleged defect or harm and 2) whether Federal Rule 23(b)(3) predominance requirement can be fulfilled where the courts have not found that the aggregate of common liability issues predominates over the aggregate of individual issues.
Previously, the courts in Whirlpool and Sears (Sixth and Seventh Circuits, respectively) had upheld certification of classes which included consumers whose washers did not manifest the alleged mold defect. The Sixth Circuit had found that the presence of a defect might be a compensable injury even if it never manifested in some washers, because the plaintiffs might be able to show they were injured by having to pay a premium for the washer as it was designed. Whirlpool, 678 F.3d 409, at 420 (6th Cir. 2012). The Seventh Circuit had found that the class could be certified even if the members had not all suffered the same damages. Sears, 702 F.3d 359 (7th Cir. 2012). However, following the Supreme Court’s ruling in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), which held that where damages are an element of liability, they need be determinable on a class-wide basis, the Court granted, vacated, and remanded the certiorari petitions in Whirlpool and Sears, instructing the circuit courts to revisit the certification analysis in light of Comcast. On remand, both the Sixth and Seventh Circuits reaffirmed their prior decisions granting certification, construing the Comcast decision narrowly, as not applicable to cases where the plaintiffs proposed the certification of liability-only classes and left damages issues for individual determination.
Many in the legal community thought that another reversal and vacatur would have dealt a huge blow to consumer class actions, in keeping with the trend of the conservative, pro-business Supreme Court’s decisions circumscribing class certification. Instead, the Court’s passing on any kind of review shows that consumer class actions, where fewer than all of the class members experienced injury, remain fully viable. The denial of certiorari in these moldy washer cases leaves the circuit courts’ decisions undisturbed, allowing for more favorable class certification standards in product defect and privacy cases.