Whirlpool recently filed its reply brief in the U.S. Supreme Court in support of its petition for certiorari in a case involving a multitude of important class action issues. We previously explained the facts and Whirlpool’s petition here and described the response of the plaintiff class here.

In its reply brief, Whirlpool explained that (1) a class with so many uninjured members cannot be certified, and (2) a class with so many individualized questions cannot be certified.

First, Whirlpool argues, contrary to Walmart v. Dukes, the Sixth Circuit treated the lack of common injury — and lack of any injury for many class members — as irrelevant. Even accepting as accurate the plaintiff’s assertion that 35-50 percent of the class suffered injury, meaning 50-65 percent of the class would have no right to relief but could recover damages anyway. What’s more, statistics from Consumer Reports, Sears and Whirlpool show that the actual percentage of washer buyers who had no mold or odor problem is 97-99 percent. 

Second, Whirlpool notes that it made many design changes during the class period to reduce mold risk and repeatedly revised washer use and care instructions to describe how to prevent odors — requiring an individualized case-by-case analysis.   

Finally, Whirlpool argues that the consequences of not reviewing the Sixth Circuit’s decision could be enormous. Both the Whirlpool case and Butler v. Sears Roebuck & Co., 2012 WL 5476831 (7th Cir. Nov. 13, 2012) — Judge Posner’s decision involving similar washing machine claims — open up new territory for massive class actions. Under Whirlpool and Butler, classes may be certified whenever a few consumers assert that a mass-produced product did not meet their expectations regardless of whether (1) most buyers are satisfied with the product, (2) the unsatisfied buyers used the product as instructed and (3) a host of individual issues must be tried to resolve their claims. 

Whirlpool explains that this precedent will lead inevitably to coerced settlements unrelated to any actual common injury and will impose enormous costs on manufacturers, retailers and ultimately consumers. Whirlpool concludes that this “Frankenstein monster posing as a class action” should not have been certified.

The case is scheduled to be distributed for conference on January 4, 2012. We will continue to follow this petition as it is considered by the Court.