January 29, 2022

Volume XII, Number 29

Advertisement
Advertisement

January 28, 2022

Subscribe to Latest Legal News and Analysis

January 27, 2022

Subscribe to Latest Legal News and Analysis

January 26, 2022

Subscribe to Latest Legal News and Analysis

Comcast v. Behrend’s Impact Already Being Felt: Supreme Court Vacates and Remands Whirlpool v. Glazer for Reconsideration

Perhaps foreshadowing the potential scope of its recent class action holding in Comcast Corp. v. Behrend, the Supreme Court yesterday vacated and remanded the Sixth Circuit’s affirmation of class certification in Whirlpool v. Glazer, 678 F.3d 409 (6th Cir. 2012) for further consideration in light of Comcast.

The Glazer plaintiffs were purchasers of Whirlpool’s 21 different "Duet" model washing machines. The plaintiffs allege their washers have a design defect that causes mold to accumulate. The plaintiffs sought to certify a class of over 200,000 Ohio residents who had purchased any of the 21 different washers over the previous nine years. Despite that less than three percent of purchasers ever reported mold or odor in their washers, the district court certified the class. The Sixth Circuit affirmed, finding that class-wide relief may be available because plaintiffs "may be able to show that each class member was injured at the point of sale upon paying a premium price for the Duet as designed, even if the washing machines purchased by some class members have not developed the mold problem."

Whirlpool petitioned the Supreme Court for certiorari. In the interim, the Supreme Court decided Comcast, which demanded plaintiffs fit their theory of damages to their theory of liability, and required the court to closely scrutinize plaintiffs’ proposed damages theory at class-certification stage. Supplementing its petition immediately after Comcast was published, Whirlpool contended that "with its focus on damages, Comcast leaves unresolved critically important questions regarding the significance of uninjured class members to the class certification determination, and the application of the predominance test when product purchasers have widely divergent experiences."

Yesterday, the Supreme Court granted Whirlpool’s petition and vacated and remanded the case to the Sixth Circuit to examine the impact Comcast may have on the propriety of class-action litigation over the washers. While it is unclear how the Sixth Circuit will decide the case on reconsideration, Comcast appears to conflict with its prior holding. The Whirlpool plaintiffs will have to present a method of calculating damages on a class-wide basis to prevent "questions of individual damage calculations" from overwhelming questions common to the class, as they did in Comcast. With such a high percentage of purchasers suffering no injury, and serious questions about plaintiffs’ ability to tie the "premium price" argument to a theory of liability, Whirlpool is sure to come under scrutiny on remand. The Sixth Circuit’s treatment of Whirlpool will lend important insight into how the Supreme Court’s holding in Comcast will be applied in future cases.

©2022 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume III, Number 93
Advertisement

About this Author

Paul E. Benson, product and tort liability litigator, michael best law firm
Partner

For more than 25 years, Paul has specialized in product liability defense, class action defense, insurance litigation, and complex commercial litigation. He is particularly well known for his work in the class action and food and beverage sectors, where he is a nationally and locally recognized speaker and thought leader on product liability issues and regulatory trends.

In all of these areas, Paul has established a reputation for outstanding results. He has used motion practice to obtain summary judgment and/or dismissal in more than half of the cases he has defended in Wisconsin...

414-225-2757
Joseph Olson, Michael Best Law Firm, Employee Benefits Litigation Attorney
Partner

Joe is a trial attorney practicing primarily in the areas of class action defense, wage and hour litigation, employee benefits litigation, regulatory compliance, and complex commercial litigation. In this capacity, he:

  • Routinely helps clients deal with class actions suits across all subject matters

  • Handles all aspects of complex employment litigation including wage and hour suits arising under the federal Fair Labor Standards Act (FLSA) and applicable state laws, plus benefits litigation...

414-277-3465
Benjamin Kaplan, Michael Best, product liability litigation, class action defense attorney,
Associate

Ben focuses on consumer protection, business tort, and class action litigation, providing careful analysis of complex issues and practical advice for resolving disputes and concerns. Ben has jury trial experience in both state and federal courts, as well as appellate experience in multiple federal appellate circuits.  

414-223-2504
Advertisement
Advertisement
Advertisement