This post updates our prior posts dated October 14, 2013 and December 18, 2013 which discussed the petitions for certiorari in Whirlpool v. Glazer and its companion cases, Sears, Roebuck & Co v. Butler, and BSH Appliances Corp. v. Cobb that were on appeal from the Sixth, Seventh, and Ninth circuits, respectively. Recall that in each of these cases, the lower court certified classes that included individuals whose washing machines had not experienced a defect (i.e., were not moldly). Defendants appealed and sought certiorari from the Supreme Court, alleging that class certification was improper when such “no injury” plaintiffs were included in the class. 

On February 24, 2014, the Supreme Court denied defendants’ petitions for certiorari in these cases without explanation. Since then, numerous commentators have weighed-in and have attempted to predict the impact of the high court’s denial. Most have postulated that the Supreme Court’s failure to clarify its holding inComcast will result in a slew of “no injury” class actions being filed and/or certified in the near future. Accordingly, manufacturers should begin strategizing and preparing for the potential influx of copycat class actions now. To this end, they would be well-served to scrutinize their products, determine their failure rates and consider a proactive recall of any potentially problematic products. Getting a firm handle on a product’s failure rate will allow the manufacturer to better predict potential litigation, but will also setup a potential argument against class certification should a class action be filed. For example, manufacturers have been able to defeat class certification where they have shown that only a small portion of the product actually contained the defect. See, e.g., Maloney v. Microsoft Corp., No. 09-2047, 2012 WL 715856, at *7 (D.N.J. Mar. 5, 2012) (court did not find commonality where only 1% of the recalled product actually contained the alleged defect). Establishing a failure rate will also allow a manufacturer to weigh the costs and benefits of proactively recalling a product. While a proactive recall might initially hurt a manufacturer’s bottom line, it can ultimately diminish future legal expenses. Indeed, a proactive recall not only diminishes an individual’s chance of being harmed, it could also moot future class actions. Numerous courts have held that a proactive recall or remedy will moot a class action that seeks similar relief. See, e.g., Cheng v. BMW of N. Am., LLC, CV 12-09262 GAF SHX, 2013 WL 3940815 (C.D. Cal. July 26, 2013); In re Aqua Dots Prods. Liab. Litig., 270 F.R.D. 377 (N.D. Ill. 2010);Winzler v. Toyota Motor Sales U.S.A. Inc., 681 F.3d 1208 (10th Cir. 2012); In re ConAgra Peanut Butter Prods. Liab. Litig., 251 F.R.D. 689 (N.D. Ga. 2008).

In light of the Supreme Court’s denial of certiorari in WhirlpoolSears BSH, and given that an ounce of prevention is worth a pound of cure, manufacturers would be well-served to examine its potentially problematic products and consider taking proactive action.