In re Whirlpool Corporation Front Loading Washer Product Liability Litigation, 2012 WL 1537914 (6th Cir. May 3, 2012) is a decision of the United States Court of Appeals for the Sixth Circuit affirming the certification of a class action potentially consisting of over a hundred thousand class members. The decision is important because it serves as a reminder that, despite their waning success in personal injury cases, class actions remain a continued threat in consumer product litigation.
The named plaintiffs in Whirlpool were two individuals who purchased front-loading washing machines from Whirlpool Corporation (“Whirlpool”). Plaintiffs claimed that their washing machines developed incurable mold and odor problems, and they sought certification of a class consisting of current Ohio residents who purchased specific types of Whirlpool front-loading washers. Following discovery the plaintiffs offered evidence that Whirlpool knew about the problems with mold and odor in its front-loading washers and that Whirlpool received over a million complaints from consumers about similar problems. Whirlpool opposed class certification primarily on the grounds that the vast majority of consumers who purchased front-loading washing machines did not experience mold or odor problems.
The plaintiffs sought class certification under Federal Rule of Civil Procedure 23(b)(3), which requires a demonstration that questions of law or fact common to the class predominate over individual questions and that the class action is superior to other available methods to adjudicate the controversy fairly and efficiently. The Sixth Circuit noted existing precedent requiring the court to conduct a “rigorous analysis” at the class certification stage. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Nonetheless, the Sixth Circuit indicated that “the relative merits of the dispute are to have no impact upon the determination of the propriety of the class action.” Whirlpool, 2012 WL 1537914 at *6. In taking this approach, the Sixth Circuit indicated that a “close examination” of the evidentiary record—even without the resolution of factual findings—is apparently all that is necessary to satisfy the “rigorous analysis” requirement at the class certification stage. Practically applied, this sets a low bar for the application of the requirements under Rule 23(b)(3) and the certification of a class action.
After approving such an approach, the Sixth Circuit then examined the requirements of Rule 23(b)(3) and found that the district court’s determinations as to numerosity, commonality, typicality, fair representation, predominance and superiority were all satisfied. It therefore upheld the district court’s class certification decision. Notably, the class certification decision left determinations as to damages to individual actions, and the Sixth Circuit urged the district court to consider whether the liability class should be subdivided into smaller classes to determine damages. The resolution of that factor will be important for the defense of the class action, as the scope of potential damages could vary greatly depending on how class members are categorized for purposes of determining damages.
Although the United States Supreme Court will likely provide more detail on the requirements for a “rigorous analysis” of the factual underpinnings of claims at the class certification stage in the near future (whether on appeal of Whirlpool or in another context), Whirlpool is a stark reminder of the power wielded by courts and the plaintiffs’ bar with class actions.