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.