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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. __ ; See 4/4/13, Page 5) [an enhanced version of this opinion is available to lexis.com
subscribers] (Sears, Roebuck and Company v. Larry Butler, et al.,
No. 12-1067, U.S. Sup.; See 11/16/12, Page 27) (lexis.com subscribers may access Supreme Court briefs for this case).
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.
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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