On March 21, 2016, the Eleventh Circuit vacated a district court’s decision to grant class certification to California and Texas consumers claiming that Electrolux washing machines have a design defect that makes them prone to staining clothes and leaving them with a moldy smell, finding plaintiffs failed to satisfy the predominance requirement. Brown, et al. v. Electrolux Home Products, Inc., No. 15-11455, 2016 WL 1085517, 2016 U.S. App. LEXIS 5112.

Consumers Target “Smelly” Washers. Over the past several years, consumers across the country have filed class actions against manufacturers of allegedly “smelly” front-loading washing machines. The lawsuit against Electrolux involves claims under two state consumer protection statutes (the California Unfair Competition Law and Texas Deceptive Trade Practices Consumer Protection Act), based on an alleged failure to disclose design defects, which allegedly cause the stink.

District Court Certifies “Smelly Washer” Class. The plaintiffs moved to certify a class of California and Texas consumers. In opposing class certification, Electrolux argued that the plaintiffs could not satisfy the predominance requirement of Federal Rule of Civil Procedure 23(b)(3) because causation would require individualized proof. The district court disagreed, finding that class members could prove causation through exposure to uniform business practices. Terrill, et al. v. Electrolux Home Products, Inc., 295 F.R.D. 671 (S.D. Ga. 2013).

Eleventh Circuit Vacates Certification. Electrolux appealed the decision, arguing that the district court misapplied California and Texas law when it concluded that the plaintiffs could prove causation on a classwide basis. The Eleventh Circuit agreed and vacated the class certification decision. The court concluded that, to proceed as a class action, the plaintiffs must be able to prove classwide exposure to a uniform misrepresentation. The plaintiffs could not do so in this case because there was no evidence that “class members saw any advertisements from [Electrolux], much less uniform advertisements, before they purchased their washing machines.” Brown, et al., 2016 WL 1085517, at *7, 2016 U.S. App. LEXIS 5112, at *20. Because of this lack of classwide proof, the consumer claims did not satisfy predominance and could not proceed as a class action.

“Smelly” Washer Takeaway. This case establishes that under Eleventh Circuit law, certification of misrepresentation claims requires common evidence that class members were exposed to the allegedly offending statement prior to purchase. Common evidence of purchase alone is not enough for plaintiffs to certify a class.