Will the Supreme Court Reconsider Class Certification in Sears

On Monday, Whirlpool Corp. and Sears Roebuck & Co. requested that the Supreme Court reconsider its previous rulings in class action lawsuits over the companies’ washing machines, which are allegedly causing moldy odors. The two companies argued that consumers had not met requirements for class certification in the Sixth and Seventh Circuit because most of the class members were not harmed.

We hope the court will grant certiorari again.

Whirlpool and Sears submitted a petition for writ of certiorari (a document the losing party files asking the Supreme Court to review the decision of a lower court) citing a court ruling made earlier this year in favor of Comcast in a class action lawsuit. With Comcast, customers accused the company of monopolizing the Philadelphia cable market, but after facing a writ of certiorari, the Supreme Court admitted that the circuit court should have looked more closely at the plaintiffs’ damages model before certifying the class. The Supreme Court ruled that the plaintiffs did not demonstrate predominance of common issues, and therefore the case should not have been class certification. In their argument on Monday, Whirlpool and Sears claimed that since 21 different models of Whirlpool clothes washers were under scrutiny, product defect suits must be litigated on a member-by-member basis.

“We hope the court will grant certiorari again to explain that unwieldy classes that hide vast differences among the claims and are full of people who didn’t experience the supposed problem can’t be certified,” a lawyer for the defendant said.

The ruling in favor of Comcast came in March 2013, and just one week later, the Supreme Court decided to vacate a previous decision made in the Sixth Circuit over the Whirlpool case, sending the case back to the appeals court for reconsideration. However, the appeals court denied the reconsideration, citing that the Comcast class was certified based on liability and damages, whereas the Whirlpool case was based solely on liability. The court found that class certification can be appropriate as long as the challenged practice is made on common grounds applicable to the entire class, even if some class members have not been injured.