Class Counsel Files Brief Opposing Certiorari in Whirlpool Class Action

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As we have previously written, Whirlpool is asking the U.S. Supreme Court to review the Sixth Circuit’s decision affirming certification of a class of Ohio Whirlpool customers who allegedly purchased defective washing machines.

In Whirlpool Corporation v. Glazer, Sixth Cir. Case No. 10-4188, the Sixth Circuit affirmed certification of a Rule 23(b)(3) class of some 200,000 Ohio residents who bought Whirlpool brand front-loading washers and allege that the washers made some clothes smell moldy — even though many of the buyers did not experience the alleged mold problem.

Respondents initially waived their right to respond to Whirlpool’s petition for certiorari, but the Supreme Court requested that respondents file a brief in response. Respondents filed their response on November 30, 2012, opposing certiorari. In their brief, respondents assert that no further review is warranted.

First, as a factual matter, respondents dispute Whirlpool’s assertion that multiple models, design and literature changes among class members defeat commonality. To the contrary, respondents assert that even though there were 21 different washing machine models purchased by class members, all models and designs share uniform design features making them susceptible to the alleged mold problem.

Further, respondents point out that as to consumers who have experienced the alleged mold issue, there is no question about the propriety of class treatment. The only question for the Court, respondents argue, is whether other Ohio purchasers who have not experienced any mold problems are entitled to class treatment.

As to the Ohio washer purchasers who have not experienced the mold problem, respondents argue that they should nonetheless be part of the class. Respondents assert that purchasing a defective washing machine — even if the purchaser hasn’t had any problems with the machine — creates “imminent” harm sufficient for Article III standing, which requires plaintiffs to have suffered an “actual or imminent” injury.

In response to Whirlpool’s argument regarding a circuit split on the issue of certification of classes that include uninjured members, respondents argue that no such split exists. Indeed, respondents assert that all circuits permit claims by individuals exposed to harm who have not proven entitlement to damages.
Respondents write that there is “nothing remarkable about the idea that a purchaser has a right to expect a non-defective product, and has been injured even if the defect has not yet caused a sufficient level of harm to establish entitlement to damages.” Respondents assert that purchasers do not receive the “benefit of their bargain” if the product they purchased was defective — even if they have not experienced any actual damages stemming from the defect.

We will continue to follow this case as the petition is considered by the Court.