We are keeping a close eye on Whirlpool's recent petition to the US Supreme Court. Whirlpool seeks review of the Sixth Circuit's decision to affirm a class of Ohio residents who bought allegedly defective Whirlpool front-loading washers. Writing for the Court of Appeals, Judge Jane Stranch upheld the district court, finding that the common injury in the case was the payment of a premium price for these high end washers. Judge Stranch found that the class could be divided into those who have experienced the problem- moldy odors - and those who have yet to. The so-called "unmanifested injury" plaintiffs can be placed in a subclass certified under Rule 23(b)(2) for declaratory relief.
Nonetheless, Whirlpool contends that Judge Stranch and the Sixth Circuit, which refused to rehear the case en banc, got it wrong and failed to follow the Supreme Court's precedent-setting Walmart v. Dukes decision. According to Whirlpool, the undisputed evidence shows that only a small fraction of the class have ever experienced mold problems and consequently, there is no common injury. The "premium price" theory, it says, does not salvage the class since it is a creature of California statutory law wrongfully applied to Ohio. What's left, it claims, is a class consisting mainly of uninjured consumers who have nothing in common with the few who may have been harmed. If those facts were properly resolved in Whirlpool's favor, it says, the case could not be certified as either overbroad or as including too many members who lack standing to proceed.
We think the Sixth Circuit got it right and not for the first time post-Dukes. The same circuit also this year affirmed class certification in one of our consumer cases. Despite defendants' laments, the federal judges in the Sixth Circuit are not failing to carefully examine the evidence or ignoring Dukes. The district courts are just doing their job and recognizing that cases arising from bum consumer products that have caused or may cause similar injury to the persons who purchased them can best proceed as class actions.
We doubt the Supreme Court will take up this case, but if it does, we have concern. As Dukes demonstrates, the Roberts Court is more than willing to upend decades of class action jurisprudence in the interest of protecting corporate America. We fear, that given the opportunity, it will do do so again.
You can find Whirlpool's certiorari petition here: Whirlpool_Cert_Petition.pdf.