Over the past two years, we have kept a close eye on Whirlpool v. Glazer and have updated you on its controversial plaintiff-friendly class certification developments in the wake of Dukes and Comcast—two cases that appeared to raise the bar for plaintiffs attempting to certify a class.  Long story short: plaintiffs brought a class action claiming that various models of Whirlpool washers had mold problems.  The class was certified despite Whirlpool’s arguments that the washers at issue encompassed several different models sold over eight years, and that many of the class members didn’t even experience a mold problem.

The case has been through a lot of ups and downs since then.  Whirlpool filed a cert petition, and the Supreme Court issued a GVR, ordering the Sixth Circuit to reconsider the case in light of Comcast.  The Sixth Circuit kept the same stance, and when Whirlpool appealed to the Supreme Court for a second time, cert was denied.  Fast-forward to this summer. Whirlpool sought to decertify the class, but didn’t succeed.  The three-week trial has since taken place, and earlier this week Whirlpool moved for judgment as a matter of law and also moved again to decertify the plaintiff class.  Just yesterday, the jury found Whirlpool not liable for designing defective washing machines.

Obviously, the not-liable verdict is a huge victory for Whirlpool and defendants should rejoice.  All’s well that ends well, right?  But it’s worth taking a look at Whirlpool’s motion for judgment as a matter of law and its motion to decertify the class, together with the court’s response.  The court’s order suggests that plaintiffs are not always held to the high standards set by Dukes and Comcast, leaving us to wonder about the collective impact of those cases.

Whirlpool argued in its motion for judgment as a matter of law that plaintiffs failed to prove that all twenty washing machine models at issue included in the certified class suffered from the same alleged design defect.  Whirlpool also argued that one of the class representatives’ claims were time-barred, and that the plaintiffs’ negligent design claim must fail because no evidence proves that Whirlpool was able to foresee the alleged mold problem when the relevant washers were designed and manufactured.  Lastly, Whirlpool argued that plaintiffs failed to prove a class-wide injury proximately caused by the alleged defect.

Whirlpool attacked plaintiffs’ causation allegations, pointing out that plaintiffs’ expert on washer design admitted that use and care at least partially impacts how much mold develops in a particular washer, irrespective of the washer’s design.  Whirlpool also questioned this expert’s conclusion that all washing machines at issue were defective because “it is not based on any evidence that a meaningful number of class Washers developed [problems].”

The fight over causation was at the forefront. Plaintiffs argued that all purchasers of the relevant models were injured at the time of sale because they purchased a defective washer, regardless of individual experience with the machine.  But Whirlpool strongly summarized its counterpoint as follows: “Even assuming injury and proximate cause can be decided for the class in this proceeding without individual class-member-specific inquiries and without trampling Whirlpool’s Seventh Amendment and due process rights, Plaintiffs cannot meet this burden for the majority of the class because they have adduced no evidence showing that all, or even most, Washers [exhibit the various problems complained of].”

Finally, Whirlpool attacked plaintiffs’ damages theory by arguing that plaintiffs have not proven a damages theory tied to their liability theory, as required by Comcast.

Whirlpool’s renewed motion to decertify the class was equally forceful.  Armed with the evidence brought out at trial, Whirlpool argued that individual issues such as differing user experiences and design differences between the different models overtook common issues.  Whirlpool also argued that the trial evidence showed that the named plaintiffs were inadequate and atypical class representatives because they only purchased 2 of the 20 washer models at issue, and for other reasons.  Notably, Whirlpool highlighted that the trial evidence did not generate a common answer to the question of whether the washers are fit for ordinary use.  Whirlpool also asserted that proximate cause is not a common question, nor is the fact of injury.

But these arguments didn’t sway the court.  Earlier this week, the court denied Whirlpool’s motion to decertify the class and motion for judgment as a matter of law.  The court called decertification “a drastic measure—one that is not to be taken lightly or without definitive, material alteration of the law or facts.”  Its order acknowledged Whirlpool’s arguments challenging commonality and contentions that common questions do not predominate over individual ones.  But the court focused on the fact that these arguments had already been brought before the district court, the Sixth Circuit, and the Supreme Court and summarily concluded that the key facts, circumstances, and law remain unchanged and that Whirlpool’s argument “about uninjured class members” remains “unpersuasive.”  The court provided little analysis beyond that.

Fortunately, this order wasn’t the end of the story for Whirlpool.  But it demonstrates how critical it is for defendants to attack class certification as forcefully as possible, because certification may be nearly impossible to undo.  My colleague Isabella Lacayo wrote last week about one defendant’s successful preemptive motion to decertify a class, which provides another mechanism through which defendants can protect themselves.  Given the high stakes of these class certification battles, we here at the Monitor will continue to keep you apprised of any major developments that shed light on decertification strategy.