Two pending cert petitions are attracting significant interest from the business community and the plaintiffs’ bar. The petitions, which seek review of class certification decisions from the 6th and 7th Circuit, are important because they call on the Court to reign in circuit courts that have appeared to depart from the seminal Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend decisions.
These cases involve allegations that plaintiffs’ front-loading washing machines are susceptible to mold. But the key issue is whether a product defect case can proceed as a class action even if a majority of class member purchasers have not experienced any problem. The 6th and 7th Circuit’s decisions suggest that they can.
Despite the Supreme Court’s vacatur and remand with express instructions to reconsider the decisions in light of Comcast, neither court of appeals reversed its class certification ruling or underlying rationale. Indeed, both the 6th and 7th Circuit decisions went so far as to state that the defendants “should welcome” litigation of the cases as class actions because proof that most class members had not experienced mold problems would lead to a favorable liability ruling binding on all class members who did not opt out. Both the 6th and 7th Circuits concluded that Comcast had little relevance to the washer cases. The 6th Circuit stated that Comcast had only “limited application” to the litigation proceeding against Whirlpool, and the 7th Circuit explicitly “reinstated” its pre-Comcast decision in the Sears case, with Judge Posner wondering aloud: “So, how does the Supreme Court’s Comcast decision bear on the rulings . . . in our first decision?” The appellate decisions would limit the impact of Comcast to the basic requirement that plaintiffs’ damages theory correspond to the class’s certified liability theory in order for the case to proceed on a class basis.
In their cert petitions, defendants argue that the appeals courts failed to appreciate the import of Comcast for the interpretation of Rule 23(b)(3) as requiring affirmative proof of predominance. They note that the Supreme Court rejected the Comcast class because damages were not susceptible to class-wide determination, and individualized issues predominated over any common issues. Moreover, defendants allege that the circuit court decisions strayed from the standards articulated in Wal-Mart that not only common questions but common answers are necessary for certification, and class members must “have suffered the same injury.” In the washer cases, record evidence suggested that less than 1 to 5 percent of washers experienced the odor problem alleged. As a result, defendants argued, neither liability nor damages could be determined on a class-wide basis using common evidence. Injury was not experienced by every class member, and even those who experienced mold odors would have to prove causation, as there are many possible alternative causes of odor issues. Moreover, specific defenses would inject individualized issues into the case, as not all class members followed the use instructions provided with the washers, and such instructions changed over time. In summary, defendants contend that the appeals courts did not engage in the rigorous analysis of the Rule 23 factors that Supreme Court precedent mandates.