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Co-Authored By: <a href="http://www.bakerlaw.com/DustinMDow">Dustin M. Dow</a>

Three cases about moldy washing machines currently sit at the U.S. Supreme Court, waiting for their names to be called.  The cases are nearly identical consumer products class actions, and they have enormous potential to shape the parameters of class action jurisprudence—if only they could get their day in court.

The cases come out of the Sixth, Seventh, and Ninth Circuits, and they each allege that design defects in certain front-loading washing machines caused mold to grow inside the machines.  Glazer v. Whirlpool Corp., 722 F. 3d 838 (6th Cir. 2013); Butler v. Sears, Roebuck &amp; Co., 727 F. 3d 796 (7th Cir. 2013); Tait v. BSH Home Appliances Corp., 289 F.R.D. 466 (C.D. Cal. 2012) appeal denied by Cobb v. BSH Home Appliances Corp., 2013 WL 1395690 (9th Cir. April 1, 2013).  The class certification issues involved provide the Court an opportunity to build on its landmark decisions, Wal-Mart Stores, Inc. v. Dukes and Comcast v. Behrend, and establish clearer rules for Rule 23 certification, rules that will impact employment class actions as well.  But in each of its previous two conference sessions, the Court has declined to either grant or deny review, leaving observers and practitioners in a dual state of uncertainty and anticipation.

With Dukes in 2011 and Comcast in 2012, the Court laid out strict rules for meeting Rule 23’s commonality and predominance requirements.  Lower courts generally have taken notice, employing the reinforced "rigorous analysis" class certification construct. But these washing machine cases illustrate that potentially difficult issues remain unresolved.

In each of the pending cases, a putative class of consumers sued the manufacturer of front-loading washing machines, alleging that a design defect causes mold to accumulate around the door of the machine. Both the Sixth and Seventh Circuits certified classes, only to have the Supreme Court vacate and remand them for further consideration in light of its Comcast decision, which held that certification was inappropriate when a damages model could not be proven classwide.  On remand, both the Sixth and Seventh Circuits in Whirlpool Corp. v. Glazer and Sears, Roebuck &amp; Co. v. Butler reaffirmed their certification decisions.  Both courts noted that Comcast was largely irrelevant to the washing machine cases because damages were not unique from consumer to consumer.  Rather, the courts distinguished Whirlpool and Sears from Comcast by asserting that all the consumers were harmed in the same way--they were all denied the benefit of their bargain because the machines they purchased were defective.   The Central District of California came to a similar conclusion in BSH Home Appliances v. Cobb when it certified a washing machine class; after the Ninth Circuit denied interlocutory review, petitioners appealed directly to the Supreme Court.  So now the three nearly identical cases, linked by common issues, sit in the Supreme Court waiting room.

The logic sounds simple, but the washing machine cases get complicated when logic meets facts.  In each case, only a very small percentage of consumers ever experienced any mold issues at all, yet the purported class includes all purchasers—the great majority of which apparently are perfectly happy with their mold-free machines. And of the class members who did experience mold issues, many used the machines in different ways and used different models.  In other words, individualized issues appear to be present—and according to petitioners, determinative.

If granted Supreme Court review, the cases could be among the most important recent business-related controversies to reach the court, at least since Dukes and Comcast, because they would present the court with the opportunity to clarify exactly how uniform a class must be for certification.  Supreme Court review would also enable the Court to draw more precise boundary lines around the types of classes that can be certified with special attention to issue classes and classes pertaining to only liability or only damages.  And, these issues transcend any particular area of substantive law.

Notably, the washing machine cases also present the chance for the Court to expound upon Rule 23 using consumer product class actions as a didactic tool.  The forerunners were employment (Dukes) and antitrust (Comcast) cases.  Adding consumer products cases to the mix confirms that the Court is not nibbling at the edges of Rule 23; instead it seems intent on exploring the broad certification framework applicable throughout the class action arena.  And once again, we are tempted by the possibility that the Court will clarify the standard of admissibility for expert evidence at the class certification stage.  Comcast presented an opportunity to answer that Daubert-or-not question, but the Court held off on that issue.

We will be paying close attention to these washing machine cases because of the potential to heavily influence class-action practice going forward.

The Bottom Line:  The washing machine cases out of the Sixth, Seventh, and Ninth Circuits reflect that Rule 23 class certification requirements after Dukes and Comcast are not fully resolved.  These three cases present an opportunity for the Supreme Court to grant review and clarify the standards of uniformity necessary to support class certification.  But will it do so?  Or, will it kick the jurisprudential can down the road?

Moldy Washing Machines at the Supreme Court: A Platform for Further Development of Rule 23?