In my December 2012 column I reported on two consumer class action suits alleging that millions of front-loading washing machines made by Whirlpool were defective because some customers experienced mold or moldy odors even though the overwhelming majority of users did not.1 At the time, a petition for certiorari had been filed in the U.S. Supreme Court in one of them, Whirlpool v. Glazer, No. 12-322, seeking review of the Sixth Circuit’s May 2012 decision certifying a class of some 200,000 Ohio residents who purchased a variety of models of Whirlpool washing machines. The Ohio litigation was a bellwether action for eight similar cases against Whirlpool involving millions of purchasers. Additionally, numerous other lawsuits alleging nearly identical moldy odor problems were commenced against other washing machine manufacturers and sellers including Samsung, General Electric, Electrolux, Sears and Miele.
Because the litigation raised monumental questions about proper application of class action rules, notably the requirements of “commonality” and “predominance,” as well as issues of “standing” to certify a class of buyers the majority of which never suffered any injury, my article urged that the Supreme Court should grant certiorari review. For one thing, the factual record in the case was nicely developed. Further, the Petition for Certiorari filed on behalf of Whirlpool and the Opposition filed on behalf of the class plaintiffs were excellent, thereby teeing up the issues rather nicely for the Supreme Court to consider.
