"Ordered by SCOTUS to Reconsider, Sixth Circuit Again Upholds Certification Ruling in Glazer"

by Skadden, Arps, Slate, Meagher & Flom LLP
Contact

Earlier this year, as noted in a previous client alert, the U.S. Supreme Court vacated and remanded the Sixth Circuit’s decision in Whirlpool Corp. v. Glazer, 678 F.3d 409 (6th Cir. 2012), for further consideration in light of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (Comcast). The Sixth Circuit has now issued a new ruling, finding that the front-load washing machine case was properly certified notwithstanding Comcast. See Slip op., Glazer v. Whirlpool Corp., No. 10-4188 (6th Cir. July 18, 2013).

In Comcast, the Supreme Court reversed certification of a class alleging federal antitrust claims on the ground that the plaintiffs’ damages theory did not fit their theory of liability, and “[q]uestions of individual damage calculations will inevitably overwhelm questions common to the class.”  133 S. Ct. at 1433. The Sixth Circuit viewed the Comcast decision as limited to the question of whether damages could be resolved on a classwide basis — a rule it found irrelevant in Glazer because the district court “certified only a liability class and reserved all issues concerning damages for individual determination.” Glazer, slip op. at 27. The Sixth Circuit justified this narrow view of Comcast based on its belief that Comcastmerely “reaffirms” the settled rule that “liability issues relating to injury must be susceptible to proof on a classwide basis” to establish predominance. Id. Quoting the dissent in Comcast, the Sixth Circuit was satisfied that when “‘adjudication of questions of liability common to the class will achieve economies of time and expense, the predominance standard is generally satisfied even if damages are not provable in the aggregate.’” Id. at 28 (quoting Comcast, 133 S. Ct. at 1437 (Ginsburg, J., dissenting)). In further support of this proposition, the Sixth Circuit cited the Seventh Circuit’s decision in Butler v. Sears, Roebuck & Co., 702 F.3d 359, 361 (7th Cir. 2012), another case alleging mold and odor problems with front-loading washing machines. Butler likewise had held that individualized issues of damages do not preclude class treatment, see Glazer, slip op. at 17-18, but the Supreme Court subsequently vacated Butler and remanded it (along with Glazer and one other case) for further consideration in light of Comcast, a fact the new Glazer decision acknowledges in a footnote but does not otherwise attempt to address.

The Sixth Circuit’s ruling overlooks the implications of Comcast for variations in injury within a putative class. In Glazer, the defendant pointed out that the alleged defect — an odor problem — had manifested in only a small percentage of the putative class members’ washing machines. The defendant argued that those without manifest defects had no injury. Although this problem relates to injury rather than damages, it is analogous to the one in Comcast. The plaintiffs seek to use the class device to expand ultimate recovery — i.e., to proceed as though the entire class is injured when in fact only a small portion has allegedly experienced a problem.

The Sixth Circuit sensed these problems but did not solve them. Instead, it attempted to resolve the injury problem by concluding that the governing state law would recognize a “premium price” theory of injury, under which even those who had no manifestation of defect nevertheless could claim some legal injury. Id. at 21. But it cited nothing for this proposition, asserting only that the cases allow consumers to “recover damages for economic injury only,” id. — a broad proposition that begs the question of whether they may do so specifically when a problem only affects a handful of proposed class members.

Even assuming the law recognizes such injuries, the predominance problems are by no means resolved, since any putative class member whose washing machine actually developed mold and odor problems would have a materially different injury from class members whose washing machines had not manifested any problems. See, e.g., Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (class members must “suffer the same injury”). Here, too, the Sixth Circuit appeared to sense a problem, as evidenced by its assertion that a class action plaintiff “need not prove that each element of a claim can be established by classwide proof” but instead need only establish that “common questions” predominate. Glazer, slip op. at 24 (citing Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 133 S. Ct. 1184 (2013)). But absent commonality on either injury or damages, there is little to be gained from a common proceeding on other issues, which the Sixth Circuit thought included the questions of “whether the alleged design defects in the [washers] proximately caused mold to grow in the machines and whether Whirlpool adequately warned consumers about the propensity for mold growth.” Id. at 25. Answers of “yes” to these questions would establish nothing by themselves because the liability determination is incomplete without resolving whether each class member was actually injured. And answering that question in individual follow-on proceedings would offer no efficiency benefits and would probably violate the defendant’s Seventh Amendment right against re-examination of facts, because the juries would have to familiarize themselves with the ostensibly common failure-to-warn and causation questions already decided by the first jury.

In short, the Sixth Circuit seems to have given short shrift to the Supreme Court’s order that it reconsider the case in light of Comcast. In the Sixth Circuit’s view, Comcast is simply a “different” case that has no bearing on the issues presented in Glazer. That view seems implausible in light of the Supreme Court’s decision to vacate the prior ruling in Glazer rather than to deny Whirlpool’s petition for review outright. It remains to be seen whether the reasoning of the Sixth Circuit will withstand further scrutiny by the Supreme Court.

Download PDF

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Skadden, Arps, Slate, Meagher & Flom LLP | Attorney Advertising

Written by:

Skadden, Arps, Slate, Meagher & Flom LLP
Contact
more
less

Skadden, Arps, Slate, Meagher & Flom LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!