11th Circuit to hear class cert challenge from moldy washer defendant

April 9, 2015

(Reuters) – Way back in October 2013, the home appliances company Electrolux first petitioned the 11th U.S. Circuit Court of Appeals to permit its appeal of the certification of a class of washing machine purchasers. At the time, the U.S. Supreme Court’s decision in Comcast v. Behrend was only seven months old. Electrolux’s lawyers at Skadden, Arps, Slate, Meagher & Flom cited the decision to argue that U.S. District Judge Lisa Wood of Augusta, Georgia, should not have granted certification to two statewide classes of consumers who claimed their front-loading Electrolux washers were defectively designed with a tendency to develop a moldy smell.

According to Electrolux, Comcast barred certification of class actions in which damages are not based on classwide proof. Electrolux’s petition argued that most of the plaintiffs in the Texas and California class actions Judge Wood certified hadn’t been damaged at all so, under Comcast, class membership was way too broad. (The plaintiffs, represented by Wexler Wallace and two other firms, responded that class members were all injured because they all bought washing machines with a common defect.)

Much has transpired in the surprisingly wide world of moldy washer litigation since Electrolux filed that petition for interlocutory appeal. The Supreme Court, which had signaled early interest in the impact of Comcast on moldy washer cases, ended up refusing to grant review of decisions from the 6th and 7th Circuits that upheld the certification of moldy washer liability classes even in light of Comcast. (The court also denied cert to another washing machine maker rebuffed by the 9th Circuit.) Whirlpool went to trial in Ohio to defend its washing machines — and won a jury verdict vindicating the design of 20 front-loading models. The Ohio class has appealed, and its lawyers at Lieff, Cabraser, Heimann & Bernstein have vowed to move forward with other statewide class actions despite the outcome in Ohio.

The Comcast decision, meanwhile, has been chewed over by several circuit courts in the 17 months since Electrolux’s petition. Electrolux was hardly the only class action defendant to read the Supreme Court opinion to require plaintiffs to present a classwide damages model in order to be certified as a class. But as I told you in February, most of the federal appeals courts that have interpreted Comcast have held that the decision doesn’t preclude certification of classes in which class members’ damages vary. According to the most recent of those circuit court decisions, a ruling from the 2nd Circuit in a case involving a wage-and-hour class action by former Applebee’s employees, the 1st, 5th, 6th, 7th, 9th and 10th Circuits have all said that class members don’t have to put forth a unified damages model to be certified.

The Electrolux plaintiffs kept the 11th Circuit apprised of some of these decisions, including the Supreme Court’s denial of certiorari in the 6th, 7th and 9th Circuit moldy washer cases. Electrolux continued to insist that the other cases were distinct, or that those other courts had interpreted Comcast too narrowly. Electrolux could point to only two federal appellate decisions that cited Comcast to overturn class certification. In a 2014 decision in In re Rail Freight Fuel Surcharge Antitrust Litigation, the District of Columbia Circuit Court of Appeals sent a class of freight shipping customers back to the trial court for reconsideration of certification because their damages model yielded false positives. And in Bussey v. Macon County Greyhound Park, another 2014 case, the 11th Circuit decertified a class of bingo machine customers because they hadn’t tied their damages model to their theory of the case and hadn’t offered a plan to allocate damages among the defendants.

On Wednesday, the 11th Circuit finally decided whether to grant Electrolux leave to appeal — and despite all of the post-petition developments in the washing machine litigation and appellate consideration of Comcast, the court wants to hear Electrolux’s appeal.

John Beisner of Skadden and Edward Wallace of Wexler Wallace declined to comment when I asked why the 11th Circuit took so long to rule on Electrolux’s petition for leave to appeal and why the court is interested in this case. It could be that the 11th Circuit wants to examine one of Electrolux’s non-Comcast argument, such as its contention that the trial judge erroneously resolved doubts in favor of class certification. Or perhaps the 11th Circuit agrees with Electrolux that even if the moldy washer liability classes recertified by the 6th and 7th Circuits hold up after Comcast, the classes certified to sue Electrolux do not because the judge did not distinguish between classwide liability and individualized damages.

Class action plaintiffs and defendants should keep an eye out for the 11th Circuit’s decision here. If the court splits with the 6th and 7th Circuits on the reach of Comcast in cases presenting very similar underlying facts, the Supreme Court may have to clarify just what it meant to say in Comcast.

For more of my posts, please go to WestlawNext Practitioner Insights

Follow me on Twitter

No comments so far

We welcome comments that advance the story through relevant opinion, anecdotes, links and data. If you see a comment that you believe is irrelevant or inappropriate, you can flag it to our editors by using the report abuse links. Views expressed in the comments do not represent those of Reuters. For more information on our comment policy, see http://blogs.reuters.com/fulldisclosure/2010/09/27/toward-a-more-thoughtful-conversation-on-stories/