U.S. Supreme Court denies certification in front-load washing machine case; should manufacturers be worried?
The U.S. Supreme court denied certiorari in two product liability lawsuits concerning front-loading washing machines. At issue was whether cases requiring individual damage inquiries could be certified as class actions following the U.S. Supreme Court decision in Comcast Corp. v. Behrend. In Comcast, the Court held that plaintiffs seeking class certification must show that the damages sought are the result of class-wide injury. Comcast has been interpreted broadly, by some courts, to mean that class certification in Rule 23(b)(3) cases is only appropriate if damages can be calculated on a class-wide basis. Other courts have read Comcast more narrowly to the facts of the case. Both opinions before the Supreme Court - Whirlpool Corp. v. Glazer (6th Cir.) and Butler v. Sears Roebuck & Co. (7th Cir.) – took the narrower view.
In Whirlpool and Butler, the plaintiffs claimed that certain design defects related to their front-loading washing machines caused the development of mold. However, in fact, only a limited number of machines actually developed mold. Despite this fact, the plaintiffs sought to certify a class of all purchasers regardless of whether the purchasers’ machines actually grew mold. Both the Sixth and Seventh Circuits ruled that the cases should proceed as class actions.
The cases made their way to the U.S. Supreme Court, where the Court vacated the judgments granting certification and remanded the cases in light of Comcast. Both Circuits reaffirmed their original holdings.
In Butler, the Seventh Circuit held that “a damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide injury that the suit alleges”. The Seventh Circuit found that a class-wide injury had been alleged and individual variations between purchasers could be handled with individual damage hearings following the determination of liability.
In Whirlpool, the Sixth Circuit held that Comcast “reject[ed] certification of a liability and damages class because plaintiffs failed to establish that damages could be measured on a classwide basis”. However, in Whirlpool, the class was only certified as to liability. The Sixth Circuit held that where liability and damages are bifurcated, Comcast “has limited application”.
The defendants again filed petitions for certiorari with the Supreme Court. This time the Supreme Court denied certiorari – declining to address whether the two new opinions were consistent with Comcast.
As a result, the application of Comcast to class actions remains unresolved. Some will argue that the denial of certiorari is an approval by the Supreme Court of the Whirlpool and Butler decisions. However, the express reason the Supreme Court denied certiorari was not stated and Comcast remains the law. We will continue to argue that in order to certify a class action under Rule 23(b)(3) a plaintiff must show a class-wide injury.