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Mayer Brown, Whirlpool Representative: Sears And Whirlpool Appeal Most Massive Class Certifications On Record -- Stakes For American Manufacturing Massive

CHICAGO, 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 Butler.

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 Butler and 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 27 th Comcast v. Behrend decision.  Comcast tightened class certification standards. If Butler and 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."

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