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Oct. 7, 2013 /PRNewswire/ -- Sears, Roebuck & Company and Whirlpool Corporation today filed back-to-back petitions for writ of certiorari with the Supreme Court. The two companies asked the Court to review class certifications in nearly identical cases involving Whirlpool-made washing machines:
Sears v. Butler (from the 7
th Circuit) and
Whirlpool v. Glazer (a 6
th Circuit case).
Each certification involved complaints of front-loading washers developing a musty scent. Judge
Richard Posner wrote the 7
th Circuit's decision in
The High Court has twice ruled (2011 in
Wal-Mart v. Dukes; this year in
Comcast v. Behrend) that, as a condition of class certification, a lower court's "rigorous analysis" of facts must demonstrate that a single matter predominates over all other issues in the lawsuit. The lower courts' findings in both
Glazer effectively took issue with these recent rulings.
"These petitions raise issues that are hugely important to U.S. industry," said
Stephen G. Morrison, consultant to Whirlpool and partner in
Nelson Mullins Riley & Scarborough LLP. "Manufacturers and retailers are under siege from bloated class actions that go far beyond what the Federal Rules and recent Supreme Court precedent authorize."
The lower courts have also embraced a highly expansive standard of liability. The 6
th Circuit held that if even a small proportion of units of a manufactured product include a defect, all purchasers of the product may be included in a class action. All may receive compensation, whether the unit purchased was defective or not.
The Supreme Court granted cert and vacated lower court decisions in both cases earlier this year. The Court remanded the cases to the circuit courts for reconsideration in light of the Court's
March 27thComcast v. Behrend decision.
Comcast tightened class certification standards. If
Glazer go to trial, the classes will be the most expansive in judicial history.
"The Supreme Court previously asked the courts of appeals to take another close look at these cases, but the lower courts failed to get the message," said Mr. Morrison. "We hope the Court will grant certiorari again. Some lower courts need to understand that unwieldy classes that hide vast differences among the claims and are full of people who didn't experience the supposed problem cannot be certified."