This post updates our prior post, dated October 14, 2013, which discussed the recent petition for certiorari in Whirlpool v. Glazer. Recall that in its October 7, 2013 petition, Whirlpool asked the Supreme Court to decide “Whether the Rule 23(b)(3) predominance requirement can be satisfied when the court has not found that the aggregate of common liability issues predominates over the aggregate individualized issues at trial and when neither injury nor damages can be proven on a class-wide basis.”

Since Whirlpool’s October 7, 2013 filing, eight amicus curiae briefs have been filed in support of Whirlpool’s petition, including the Pacific Legal Foundation, DRI- The Voice of the Defense Bar, the Product Liability Advisory Council, Inc., Retail Litigation Center, Inc., Technology Association of America, the Chamber of Commerce of the United States, The Association of Home Appliance Manufacturers, and Washington Legal Foundation. Respondents filed their opposition on December 6, 2013.

In their brief, responding to Whirlpool’s argument that the Sixth Circuit should have denied class certification on remand and that “Comcast means a fortiori that no class may be certified if there are any individual damages calculations,” Respondents argue “Latin aside, this is wrong.” Specifically, Respondents emphasize in their opposition that no case has held that individual damage calculations defeat certification and that their plaintiffs seek damages under a common theory (i.e. all that is required under Comcast).

To the first point, Respondents contend: “Neither [the Supreme Court] nor any court below has held that individual calculation of damages necessarily bars class certification on a common liability theory. Indeed, this Court has explained that the need to prove one or more elements of a claim individually does not automatically defeat predominance.”

To the second point, Respondents argue that the “critical inquiry on remand in light of Comcast was to ensure that ‘a model purporting to serve as evidence of damages in a class action must measure only those damages attributable to that theory,’” and that their plaintiffs, unlike Comcast’s plaintiffs, are attempting to recover damages under a common theory. Respondents maintain that their allegedly moldy dryers contain a “single uniform defect causing a uniform harm,” that can be remedied through the warranty process.

Respondents also argue in their brief that certiorari is not necessary because there is no confusion or circuit split regarding Comcast’s application. Addressing the perceived split outlined by the court in Jacob v. Duane Reade, and mentioned in our prior post dated October 14, 2013, Respondents argue (in a footnote) that:

Leaving aside that Jacob is a district court opinion, Petitioners mischaracterize what it shows, which is that the Courts of Appeals have only just begun to address the meaning of Comcast at all. Jacob discerns three factual groups of cases, each requiring a different result under Comcast. Factual differences leading to some cases granting class certification and others denying it do not create a Circuit conflict.

While product liability litigators might not know the impact of Comcast for a while, we should know whether the Supreme Court thinks Comcast needs clarification in early 2014 as Whirlpool’s petition is set to be discussed at the January 10, 2014 conference. Until then, we will have to try to stifle our Comcast musings and hope that they do not predominate.