Sixth Circuit Reinstates Whirlpool Smelly-Washer Class Action Despite Supreme Court Hint

Daniel Fisher comments for Forbes:

Rebuffing a strong hint from the U.S. Supreme Court that it needed to reconsider, the Sixth Circuit Court of Appeals affirmed a class action against Whirlpool over smelly front-loading washers.

The Supreme Court sent the case back to the Sixth Circuit in April, advising the court to reconsider whether it was really class-action material in light of its Comcast v. Behrend decision rejecting a class of cable-television customers the high court determined was too diverse to be included in a single lawsuit.The Supreme Court sent another smelly-washer case against Sears back to the Seventh Circuit in June, also citing Comcast.

Whirlpool, the manufacturer of the washers in both cases, argued there was no single cause binding all the consumers, some of whom may have been using their washers improperly, and many others of whom never complained of foul smells in the first place.

If there was a message in the so-called grant, vacate and remand order from the Supreme Court, the Sixth Circuit wasn’t buying it.  In its opinion released today, the court affirmed the class of all Ohio consumers who bought Whirpool front-loading washers, saying the trial court was presented with more than enough evidence to conclude there was a common claim that Whirpool knew the washers could develop “biofilm” because of their low water consumption and design.Whirlpool later began selling Affresh, a cleaning tablet designed to reduce the smell that documents suggested could bring the company $50 million to $195 million a year.

Whirlpool shipped some 160,000 washers to Ohio during the class period extending from 2002 to 2009.

Whirlpool argued the class was too broad since consumers bought many different models based on two separate platforms, defeating the requirement that all plaintiffs suffered similar damages. But the appeals court rejected that, saying “the common question of whether design defects cause mold growth remains across the manufacturing spectrum Whirlpool describes.” The court also rejected Whirpool’s argument that consumer laundry habits vary widely, as well as whether the washers are placed in sunny laundry rooms or dank basements.

Whirlpool’s own documents confirmed that its design engineers knew the mold problem occurred despite variations in consumer laundry habits and despite remedial efforts undertaken by consumers and service technicians to ameliorate the mold problem.

In affirming the class action, the Sixth Circuit had to tiptoe around the Supreme Court’s recent string of decisions restricting the ability of plaintiff lawyers to assemble such cases. In Wal-Mart v. Dukes, the court rejected a class consisting of more than 1 million female Wal-Mart employees, saying there was no feasible way for a court to determine in a single proceeding whether Wal-Mart discriminated against every one of them.

In Comcast, the court rejected a class consisting of all of Comcast’s customers in the Philadelphia area because there was no single economic theory that could explain the damages each of them suffered from the cable operator’s consolidation of that market. . . .

In April 2013, the Federalist Society produced a post-decision SCOTUScast on the Comcast case. It featured Kenneth K. Lee, a partner at Jenner and Block. You can listen to it here.