Two years ago, the Sixth Circuit dealt a blow to products liability defendants when it certified a class of approximately 200,000 Ohio owners of front-loading Whirlpool washing machines in Glazer v. Whirlpool Corp,722 F.3d 838 (6th Cir. 2013). The plaintiffs in Whirlpool alleged that, due to a manufacturing defect, the washers at issue were prone to mold and mildew, producing bad odors and damaging clothing. Whirlpool was significant in that the putative class consisted of purchasers of more than twenty different washing machine models, some of whom had not suffered any actual damages. After the district court certified the class on the issue of liability and the Sixth Circuit affirmed, Whirlpool sought review by the Supreme Court of the United States. Granting certiorari, the Supreme Court vacated and remanded the case for reconsideration in view of its recent decision in Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013). On remand, the Sixth Circuit certified the class again, distinguishing Comcast.
The same year that Whirlpool was decided, the Seventh Circuit certified its own class of Whirlpool washer owners in Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013). Sears stretched Rule 23's commonality requirement even further than Whirlpool had, certifying a class of plaintiffs who had allegedly suffered either or both of two injuries—the mold and odor problem from Whirlpool,or a control unit defect. A larger variety of washer models were purchased by the plaintiffs in Sears. As in Whirlpool the class was certified on liability only, not damages. Also as in Whirlpool, on remand from the Supreme Court, the Seventh Circuit reinstated its judgment. The Seventh Circuit distinguished Comcast, reasoning that the putative class in that case had been erroneously certified on both liability and damages when damages were not measurable on a class-wide basis on the plaintiffs' theory of liability. The Supreme Court declined to review the reinstated class certifications in both Whirlpool and Sears.
The approach to class certification in Whirlpool and Sears generally has been followed. In the wake of these decisions, and the Supreme Court's denial of certiorari, the First, Second, Fifth, and Ninth Circuits have certified classes in which members alleged varying injuries and the classes almost certainly included some uninjured parties. In litigation arising out of the BP oil spill in the Gulf of Mexico, the Fifth Circuit upheld class certification, distinguishing Comcast in much the same way that the Sixth and Seventh Circuits did. In re Deepwater Horizon, 739 F.3d 790 (5th Cir.). The Ninth Circuit's decision in Jimenez v. Allstate Insurance, 765 F.3d 1161 (9th Circ. 2014), cited Whirlpool, Sears, and Deepwater in finding that the commonality requirement was met in a wage-and-hour class action despite differing damages allegations. The Second Circuit also cited these three cases in Roach v. T.L. Cannon Corp., 778 F.3d 401(2nd Cir. 2015) when it vacated and remanded a wage-and-hour case after the district court denied class certification. The First Circuit, likewise, in In re Nexium Antitrust Litigation, 777 F.3d 9 (1st Cir. 2015), distinguished Comcast in order to certify a class alleging violations of antitrust and consumer protection laws when a number of class members were likely uninjured.
Looking to Whirlpool and/or Sears, several circuits have established their own precedents for the proposition that Rule 23's commonality requirement for class certification does not require that damages be measurable on a class-wide basis at the certification stage. Whether the Supreme Court will review one of these decisions to confirm or strike down the circuits' interpretation of its Comcast opinion remains to be seen. In the meantime, the new, lower threshold for meeting the commonality requirement for class certification is, at least in practice, the law of the land. Many of the class certification cases decided by the circuit courts do not involve products claims. Still, the trend to certify classes more readily despite individualized damages determinations is one that products defendants and defense counsel must consider.
Keywords: products liability, litigation, class certification, class action