Moldy Washers Cases Put Class Actions in High Court’s Spotlight

By Lawrence Hurley | January 10, 2014

The U.S. Supreme Court could decide as soon as Friday whether to take up closely watched cases involving moldy odor-emitting washing machines that may let the justices clarify when big-money class action cases can proceed.

The nine justices are set to consider during their private conference on Friday three similar cases brought by consumers against Sears Roebuck and Co, Whirlpool Corp and BSH Home Appliance Corp over faulty front-loading washing machines.

In recent years the court has issued a series of rulings making it harder for plaintiffs to bring big-money class actions. The washing machine cases could give the justices another opportunity to weigh under what circumstances courts should allow such cases to go forward.

The lawsuits claimed that Kenmore-brand high-efficiency washers, manufactured for the Sears Holding Co subsidiary by Whirlpool; Whirlpool’s own brand washers; and those manufactured by BSH, a subsidiary of Germany-based BSH Bosch und Siemens Hausgerate GMbH, were defective in part because they sometimes emitted unpleasant odors.

Appeals court rulings allowing the claims against Whirlpool and Sears to proceed were thrown out by the Supreme Court last year after the justices ruled in March in favor of Comcast Corp in a class action based on claims over how much the cable company charged a group of subscribers.

Both the Cincinnati-based 6th U.S. Circuit Court of Appeals and the Chicago-based 7th U.S. Circuit Court of Appeals then ruled in favor of consumers for a second time, saying the Comcast decision did not change the outcome.

In the BSH case, the San Francisco-based 9th U.S. Circuit Court of Appeals refused a company request to appeal a district court judge’s decision allowing the suit to proceed and, after the Comcast ruling was issued, declined to revisit the case.

The legal issue before the justices is whether the individual claims are sufficiently similar to warrant class action certification, meaning that they can all be heard together in one big case.

The Whirlpool case alone concerns 200,000 customers. It is one of 10 similar lawsuits consolidated before the same federal district court judge that Whirlpool is facing.

If all those lawsuits are allowed to proceed, they would involve more than 4 million individual claims, Whirlpool says. Similar lawsuits against other manufacturers are also pending.

Tim Bishop, a lawyer at Mayer Brown who represents Sears and Whirlpool, said in an interview that the vast majority of consumers experienced no problems with their washers. “What’s critical here is that the court not allow classes predominantly made of people who never suffered any problem,” Bishop said.

Scott Nelson, an attorney at consumer advocacy group Public Citizen, said class certification in such cases is vital because it is the most efficient way to resolve mass actions.

“It would significantly impair the ability of consumers to pursue class remedies against widespread product defects if certification were not permitted in these kinds of cases,” Nelson said in an email.

A majority of the justices are viewed as being generally hostile to class actions, which are driven by specialist plaintiffs’ lawyers who file claims on behalf of groups of consumers over such issues as defective products and unfair business practices.

In the 2012-2013 term that ended in June, corporate defendants lost in only one of seven class-action-related cases the court took action on.

If the court agrees to hear one or more of the washer cases, a ruling would be expected by the end of June.

The cases are Sears v. Butler, 13-430, Whirlpool Corp v. Glazer, 13-431 and BSH v. Cobb, 13-138.

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