On February 24, 2014, the U.S. Supreme Court denied certiorari in three “moldy” washing machine class actions, which presented questions regarding Fed. R. Civ. P. 23’s commonality and predominance requirements as clarified by Wal-­Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). In a previous post, we discussed in detail the Sixth Circuit’s rationale for upholding the trial court’s certification of a liability class in  Whirlpool Corp. v. Glazer, et al (No. 13-431), despite the fact that there were four different models of machines purchased by the class which evidence established (1) were designed using two different platforms, (2) underwent dozens of design changes, and (3) represented twenty-one models over nine design years.  And despite the fact that Whirlpool presented evidence that the incidence of mold growth was rare, most of the washer owners did not experience the mold growth, and that consumers’ laundry habits and experiences with the machines were diverse.  The Sixth Circuit held twice that there were sufficient questions common to the class and that questions common to the class predominated over individual determinations.  No damages class was certified. Sears, Roebuck and Co. v. Butler et al. (No. 13-430) from the Seventh Circuit and  BSH Home Appliances Corp. v. Cobb, et al. (No. 13-138) from the Ninth Circuit presented similar issues.

The Supreme Court already had GVR’d the Whirlpool case, granting certiorari and remanding it to the Sixth Circuit for reconsideration in light of Comcast.  On this second trip to the High Court, Whirlpool argued that neither liability nor damages could be determined for the class on a common basis using common evidence according to Dukes and Comcast, for the following reasons:

• Defect cannot be decided on a common basis with 21 different products with different designs that affect the odor issue.
• Injury and causation cannot be determined on a common basis because most Washer owners never experienced moldy odors and there are many potential causes of odors.
• Adequacy of disclosure cannot be resolved on a common basis because knowledge of the issue changed over time and different disclosures were made.
• Defenses cannot be adjudicated on a common basis because some people followed use-and-care instructions and others did not and some claims are timely and others are not.
• Damages vary from buyer to buyer.

Whirlpool asserted that “this obvious predominance of individual issues bars Rule 23(b)(3) certification….That the jury would have to evaluate the circumstances of each of 200,000 Ohio Washer buyers individually to determine both liability and damages makes this case even less suitable for class resolution than Comcast.”  Whether it is as obvious to the U.S. Supreme Court remains to be answered another day.  In the meantime, the certification of liability-only classes may gain popularity among federal judges looking to Comcast for support.