On October 9, 2012, the U.S. Supreme Court considered whether to accept an appeal from a class action decision in the Sixth Circuit. In Whirlpool Corporation v. Glazer, Sixth Cir. Case No. 10-4188, the Sixth Circuit 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.

In the Supreme Court appeal, Respondent Glazer initially waived the right to respond to Whirlpool’s petition for certiorari. But Tuesday, the Supreme Court requested that Glazer file a response. Glazer’s response date is set for November 8, 2012. Once the Court has had an opportunity to review Glazer’s response, it will make a decision on whether to accept the appeal.

In Whirlpool, plaintiffs claim that 21 different models of Whirlpool brand high-efficiency front-loading clothes washers contain a common design defect that causes, or will cause at some indeterminate time, moldy odors due to an accumulation of laundry residue. 

Whirlpool opposed certification. In its petition for certiorari, Whirlpool explains that it submitted evidence, much of which was undisputed, showing that: (1) the designs of the 21 models changed materially over the nine-year class period; (2) buyers treated their washers in materially different ways; (3) only a tiny fraction of the putative class members ever reported mold or odors in their washers; and (4) Whirlpool’s affirmative defenses, including product misuse and statutes of limitations, will require individualized fact-finding at trial. Despite this evidence, certification was granted and affirmed in the Sixth Circuit.

The questions presented in Whirlpool’s petition for certiorari are:

  1. Whether a class may be certified under Rule 23(b)(3) even though most class members have not been harmed and could not sue on their own behalf;
  2. Whether a class may be certified without resolving factual disputes that bear directly on the requirements of Rule 23; and
  3. Whether a class may be certified without determining whether factual dissimilarities among putative class members give rise to individualized issues that predominate over any common issues.

Several media outlets reported on the Court’s consideration of Whirlpool’s petition. For example, the Wall Street Journal noted Tuesday that if the Sixth Circuit's ruling "is allowed to stand, the result could be a tide of new litigation against an endless array of products." The Wall Street Journal further commented that the Sixth Circuit’s decision “contradicts the Supreme Court's recent guidance on class certification in 2011's gender discrimination case Wal-Mart v. Dukes.”

Likewise, the Washington Times reported Monday on the pending Whirlpool petition. Tiger Joyce, president of the American Tort Reform Association, wrote the Washington Times article. Joyce notes that Whirlpool — an Ohio-based case — comes before the Supreme Court as Whirlpool “is bringing its overseas washing machine assembly back to the United States, adding thousands of jobs at its factory in the Buckeye State. Thus, the importance of the Supreme Court’s decision on whether to hear class-certification arguments in Whirlpool v. Glazer cannot be overstated. The future of manufacturing in America depends on it.”

We will continue to follow this case as it moves through the Supreme Court.