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U.S. Supreme Court Vacates Moldy Washer Ruling In Light of Comcast v. Behrend

 WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on June 3 granted a petition for writ of certiorari in the appeal of a Seventh Circuit U.S. Court of Appeals decision to overturn denial of class certification in a suit over mold growth in certain front-loading automatic washers and remanded the matter to the appellate court for further consideration in light of the recent ruling in Comcast Corp. v. Behrend (569 U.S. __ [2013]; See 4/4/13, Page 5) [an enhanced version of this opinion is available to subscribers] (Sears, Roebuck and Company v. Larry Butler, et al., No. 12-1067, U.S. Sup.; See 11/16/12, Page 27) ( subscribers may access Supreme Court briefs for this case).

Washing Machines

Numerous claimants filed a consolidated class action complaint against Sears Roebuck and Co. in the U.S. District Court for the Northern District of Illinois on behalf of all purchasers of certain front-loading automatic washers made by Whirlpool and sold under the Whirlpool and Sears Kenmore brand names. The class action is based on the warranty laws of six states.

The District Court found that there were two groups of class plaintiffs. It granted certification of the class alleging that a defect in the machines causes the machine to stop (control unit claim). It denied certification of the class alleging that a defect in the washing machines caused mold. The claimants asserting mold claims appealed. Sears appealed the decision granting certification to the class asserting the stoppage claims.

Mold Class

The Seventh Circuit overturned the denial of certification to the mold class.

The appeals court said the Sixth Circuit U.S. Court of Appeals recently issued a ruling in In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation (678 F.3d 409 [6th Cir. 2012]) [enhanced version], in which it upheld certification of a single mold class. The appeals court noted that the mold class was identical to the present action. The appeals court said that upholding the District Court's denial of certification of the mold class would result in a conflict between the U.S. circuit courts and, therefore, overturned the decision denying certification.

Even though the defect was corrected, the appeals court said Sears continued to ship washing machines that contained the defective control units. The appeals court said the issue was whether the control unit in the machines was defective. The appeals court said it was more efficient for the common question of whether the washing machines were defective to be decided as a class action.

The appeals court noted that the District Court will have to consider whether to create different subclasses in relation to the control unit class for different states. The appeals court affirmed certification of a class regarding the control unit issue.

Sears then petitioned the U.S. Supreme Court.


Stephen Shapiro of Mayer Brown in Chicago represents Sears. Samuel Issacharoff of New York represents the washing machine owners.

Deborah J. La Fetra of Pacific Legal Foundation in Sacramento, Calif., filed an amicus curiae brief on behalf of Pacific Legal Foundation. John H. Beisner of Skadden, Arps, Slate, Meagher & Flom in Washington filed an amicus brief on behalf of Product Liability Advisory Council Inc.

Daryl L. Joseffer of King & Spalding in Washington filed an amicus brief on behalf of the U.S. Chamber of Commerce, The Retail Litigation Center Inc., Business Roundtable and The National Association of Manufacturers. Mary M. Ross of DRI-The Voice of the Defense Bar in Bloomfield Hills, Mich., filed an amicus brief on behalf of DRI-The Voice of the Defense Bar.

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