Yesterday, the Sixth Circuit affirmed class certification in an interlocutory appeal under Rule 23(f) in an MDL concerning alleged design defects in certain front-load washing machines produced by Whirlpool, In re: Whirpool Corporation Front-Loading Washing Products Liability Litigation.  The case involves washing machines that allegedly became susceptible to mold and mildew which allegedly led to damages of the putative class.

Relying heavily on the Supreme Court's recent decision Wal-Mart Stores, Inc. v. Dukes 131 Supreme Court 2541 (2011), the Sixth Circuit walked through the various class action requirements and concluded that the district court did not abuse its discretion in certifying the class.  The Court initially wrestled with the question of how to consider the merits at the class certification stage.  Clarifying its prior precedent through the lens of Dukes, the Sixth Circuit held that "courts may inquire preliminarily into the merits of a suit to determine if class certification is proper, although courts need not resolve all factual disputes on the merits before deciding if class certification is warranted."  The Court accordingly rejected the defendant's argument that the district court had forsaken the rigorous analysis required for class certification by refusing to consider the merits of the claims. 

Another interesting aspect of the Court's decision is its conclusion that the class may be certified even if certain class members have not actually suffered injury.  Rejecting the defendant's  argument, the Court held "the class plaintiffs may be able to show that each class member was injured at the point of sale upon paying a premium price for the [washing machine] as designed, even if the washing machines purchased by some class members have not developed the mold problem."  It will be interesting to see how this portion of the Court's decision is applied by district courts wrestling with class certification decisions.