WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on Feb. 24 denied two petitions for writ of certiorari filed by Sears Roebuck and Co. and Whirlpool Corp. in relation to rulings that granted class certification for various purchasers of front-loading washing machines who allege that a defect causes mold growth (Sears Roebuck and Co. v. Larry Butler, et al., No. 13-430, U.S. Sup.; Whirlpool Corp. v. Gina Glazer, et al., No. 13-431, U.S. Sup.).
(Order list available. Document #42-140304-004Z.)
In December 2013, Sears and Whirlpool filed petitions for writ of certiorari in the Supreme Court. Sears Case Numerous claimants (the Sears claimants) filed a consolidated class action complaint against Sears 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 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. The Seventh Circuit U.S. Court of Appeals overturned the denial of certification to the mold class.
Sears then petitioned the U.S. Supreme Court. The Supreme Court granted Sears' petition for writ of certiorari to overturn denial of class certification in the suit over mold growth in certain front-loading automatic washers and remanded the case to the Seventh Circuit for further consideration in light of the ruling in Comcast Corp. v. Behrend (569 U.S. __ ). On Aug. 22, 2013, the appeals court reinstated its judgment, reversing denial of class certification of a mold class.
Trina Allison purchased a Whirlpool Duet HT washing machine. Gina Glazer bought a Duet Sport washing machine. After purchasing the machines, Glazer and Allison noticed the smell of mold or mildew coming from the machines. Glazer and Allison sued Whirlpool in the U.S. District Court for the Northern District of Ohio, alleging claims under Ohio law for negligent design, negligent failure to warn, tortious breach of warranty and violation of the Ohio Consumer Sales Practice Act (OCSPA).
Glazer and Allison moved to certify their Ohio tort, warranty and fraud claims as a class action pursuant to Federal Rule of Civil Procedure 23(b)(3). Whirlpool opposed class certification. The District Court found that under Rules 23(a) and (b)(3), Allison and Glazer met the liability prerequisites for tortious breach of warranty, negligent design and negligent failure to warn. The District Court certified the liability class.
Whirlpool appeals to the Sixth Circuit U.S. Court of Appeals, which upheld class certification. In September 2012, Whirlpool filed a petition for writ of certiorari with the Supreme Court. In light of Comcast, the Supreme Court remanded to the Sixth Circuit, which upheld class certification.
Petitions Whirlpool and Sears presented the question "whether the Rule 23(b)(3) predominance requirement can be satisfied when the court has not found that the aggregate of common liability issues predominates over the aggregate of individualized issues at trial and when neither injury nor damages can be proven on a classwide basis." Whirlpool and Sears also presented the question of "Whether a class may be certified when most members have never experienced the alleged defect and both fact of injury and damages would have to be litigated on a member-by-member basis?" The Sears and Whirlpool claimants filed a joint brief in opposition to the petitions for certiorari, arguing that they should be denied.
Whirlpool and Sears are represented by Stephen M. Shapiro of Mayer Brown in Chicago. The claimants are represented by Samuel Issacharoff of New York.
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