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SCOTUS Washes Out Manufacturers’ Challenge to Consumer Class Actions

March 3, 2014

Supreme Court Refuses to Review Consumer Appliance Defect Class Actions

Critics of the Supreme Court as consistently “pro-business” welcomed the Court’s February 24, 2014 order denying certiorari in a series of consumer class action cases alleging defects in millions of front loading washing machines.  A pair of recent Sixth Circuit and Seventh Circuit decisions, and a 2012 Ninth Circuit decision permitted the class actions to proceed, notwithstanding the Supreme Court’s recent Comcast decision, over the objections of Whirlpool Corp., Sears Holdings Corp., and a unit of BSH Bosch und Siemens Hausgeraete GmbH that the vast majority of consumers could never prove any product defect or harm.  Although the fight will go on at the trial court level, consumer advocates tout the decision as a victory for consumers and a break in the string of SCOTUS anti-class action decisions.

The consumer class actions alleged the manufacturers’ washing machines failed to self-clean properly and developed mold and foul odors.  In prior orders, the Seventh Circuit had permitted class claims to proceed against Sears in six states and the Sixth Circuit allowed an Ohio class to proceed against Whirlpool.  The Supreme Court vacated those rulings following its Comcast decision, which found a proposed class of cable subscribers was too varied to support class certification.

The Sixth and Seventh Circuits reacted by again allowing the class plaintiffs to proceed.   In addition to the issue of cognizable harm to warrant class treatment, the Court was also asked to consider whether the alleged defects with the Sears, Whirlpool, and Bosch washers were common enough to be resolved together.  Sears issued a statement that Judge Posner’s order “opens the door to class actions based on any mass-produced product’s failure to meet expectations of a handful of consumers, no matter how few buyers had the same problem.”

Nevertheless, the refusal to consider the case is not surprising, even if it appears incongruent with the Court’s AT&T, Wal-Mart, and Comcast opinions narrowing the availability of class actions in several ways.  The issues here are more fact intensive and may warrant development of a full record on certification requirements.  Denial of certiorari in these cases hardly announces any new trend.  It would not be surprising to see these cases return again if classes are certified with substantial numbers of consumers with dissimilar or no demonstrable common injury.

BSH Home Appliances Corp. v. Cobb, et al. 13-138; Sears, Roebuck & Co. v. Butler, et al. 13-430; Whirlpool Corp. v. Glazer, et al. 13-431.