The Whirlpool moldy washing machine case is back in the news with the Sixth Circuit’s latest decision reaffirming class certification. We previously discussed this case as it’s happening right here in Ohio in the Sixth Circuit Court of Appeals.

In Whirlpool Corporation v. Glazer, Sixth Cir. Case No. 10-4188, the Sixth Circuit initially affirmed certification of a Rule 23(b)(3) class of some 200,000 Ohio residents who bought Whirlpool brand front-loading washers and allege that the washers made some clothes smell moldy — even though many of the buyers did not experience the alleged odor problem.

Whirlpool appealed to the U.S. Supreme Court. In a decision issued on April 1, 2013, the Supreme Court vacated the Sixth Circuit’s decision and remanded the case for further consideration in light of Comcast v. Behrend. In Comcast, the Court held that a class brought by cable television subscribers was improperly certified, in part, due to a lack of common issues binding the class together.

The Sixth Circuit’s most recent decision, which was released July 18, 2013, reaffirmed class certification, holding that Comcast “does not change the outcome of our Rule 23 analysis.” (Opinion, at 26.)

On the commonality issue, the court noted that “[w]hile the trial evidence may concern different Duet models built on two different platforms, . . . [w]hether the alleged design defects caused biofilm and mold to accumulate in the Duets is a common issue for all members of the certified class.” (Opinion, at 17.)

As for the predominance issue, the court held:

"[W]e uphold the district court’s determination that liability questions common to the Ohio class—whether the alleged design defects in the Duets proximately caused mold to grow in the machines and whether Whirlpool adequately warned consumers about the propensity for mold growth—predominate over any individual questions."

A Reuters article discussing the most recent Sixth Circuit opinion cites Whirlpool spokeswoman Kristine Vernier, who noted that Whirlpool plans to ask the Supreme Court to review the Sixth Circuit's ruling. The Reuters article, quoting a statement by Ms. Vernier, stated:

"(T)he Sixth Circuit has taken a direct shot, not just at one company or one industry, but also at American manufacturing as a whole, inventing a rule of liability that will severely damage manufacturing in our country."

A very similar case also alleging the sale of mold-prone Whirlpool washing machines brought against Sears Roebuck & Co. was similarly remanded to the Seventh Circuit Court of Appeals, where the case is now pending. Should the Seventh Circuit disagree and decline to certify, mold-prone washing machines could be on the agenda before the U.S. Supreme Court again very soon.