Steptoe is closely monitoring developments in class action jurisprudence, with particular attention to toxic tort and related litigation. On January 30, we presented a webinar, “Toxic Tort Class Actions in the Post-Dukes World: Progress, Resistance and Challenges,” where we reviewed what has happened since the Dukes case, including a number of questions that remain to be answered.

At the time of the webinar we discussed two petitions for writ of certiorari in class action cases pending in the United States Supreme Court.  One was from the 6th Circuit Court of Appeals and the other from the 7th, both challenging certification of a class action for alleged defective moldy washing machines.  See Butler v. Sears Roebuck & Company; Nos. 11-8029, 12-8030 (7th Circuit, August 22, 2013); In Re Front-Loading Washer Products Liability Litigation, No. 10-4188 (6th Circuit, July 18, 2013).  The district courts in the cases certified classes based on liability issues only, despite the fact that the majority of proposed class members had not suffered any damage from the alleged defect in the machines.  The circuit courts affirmed.  The Supreme Court had previously taken certiorari in these cases and vacated and remanded for reconsideration in light of its decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).  Both Circuits reaffirmed certification, despite the lack of commonality or predominance of damages.  The defendants then sought certiorari yet again, arguing that the Supreme Court decisions in Comcast and Walmart v. Dukes required a showing of commonality and predominance as to damages as well as other questions such as liability.  There was considerable optimism that the Supreme Court would take the cases and use them to further extend its series of Rule 23 rulings.

Unfortunately, the Supreme Court denied certiorari in Sears, Roebuck and Co. v. Butler, No. 13-430, 2014 US Lexis 1507, 82 U.S.L.W. 3491 (Feb. 24, 2014), and Whirlpool Corp. v. Glazer, No. 13-431, 2014 US Lexis 1484, 82 U.S.L.W. 3491 (Feb. 24, 2014).  This means that plaintiffs will be able to pursue class actions, at least in some jurisdictions, without need to demonstrate predominance or commonality as to damages.  In denying certiorari, the Court also passed up on the opportunity to interpret Rule 23(c)(4), providing for certification of single issues.

The decision is being hailed by the plaintiffs’ bar as the end of the Supreme Court’s restructuring of Rule 23, leaving the class device in good shape as a tool for plaintiffs.  Commentators in the defense bar, while disappointed, do not agree.  More than one has noted that the Court could well have decided that it had devoted enough of its limited docket to Rule 23 over the last few terms, and that it was appropriate to allow the lower courts to more fully develop class action jurisprudence before revisiting the issue.

Who is right remains to be seen.  In the meantime class actions will continue to be brought, and may now even increase.  We will continue to litigate them and monitor developments.