The Wall Street Journal recently published an editorial urging the Supreme Court to grant the petition for certiorari (pdf) in Whirlpool Corp. v. Glazer—a petition filed by my colleagues Stephen Shapiro, Jeffrey Sarles, and Tim Bishop. The petition seeks review of a decision by the Sixth Circuit (pdf), which affirmed the certification of a class of Ohio purchasers of front-loading Whirlpool washing machines that allegedly are defective because a small fraction may emit moldy odors due to laundry residue. (The action is a bellwether case; many identical class actions have been filed across the country against numerous manufacturers.)

The petition presents several issues worthy of review—if not summary reversal:

  • Most class members would never experience the alleged defect—meaning they were not harmed and could not sue on their own behalf under the applicable Ohio law. Yet the Sixth Circuit held that those persons could be included in a Rule 23(b)(3) class, in conflict with decisions of the Second, Seventh, and Eighth Circuits.
  • The Sixth Circuit approved the district court’s failure to address Whirlpool’s evidence that each class member’s claim would require individualized inquiries. For example, Whirlpool showed that very few buyers ever reported mold or odors, the designs of the 21 washers at issue changed dramatically over the nine-year class period, buyers used (and some misused) their washers in many different ways, and Whirlpool’s knowledge of and disclosures regarding the potential for mold odors changed dramatically. The district court believed these “merits” issues were irrelevant at class certification under Eisen. The Sixth Circuit’s affirmance of that ruling is mistaken in light of the Supreme Court’s decision in Wal-Mart v. Dukes, which repudiated that aspect of Eisen.
  • The Sixth Circuit erroneously concluded that the predominance requirement of Rule 23 was satisfied because it had found that the plaintiffs had adequately alleged the existence of a common question—thus ignoring issues individual to each customer, such as the varying ways in which they were or were not injured, whether the alleged defect caused any particular injury, and whether the class members were subject to individualized affirmative defenses such as product misuse and statutes of limitations.

Amicus briefs were filed by the Product Liability Advisory Council (pdf); the Pacific Legal Foundation (pdf); and the Chamber of Commerce of the United States of America, National Association of Manufacturers, and Business Roundtable (pdf). The plaintiffs waived the right to oppose the cert. petition, but on October 9, 2012, the Supreme Court called for the plaintiffs to file a response