Are Sears and Whirlpool trying to hoodwink the justices of the U.S. Supreme Court about cases that could devastate consumer class action litigation?
That’s what purchasers of front-loading Whirlpool washing machines with an (allegedly) unfortunate propensity to develop a musty odor assert in a new brief opposing petitions for certiorari that were filed by Sears and Whirlpool in October. Members of separate class actions certified by the 6th and 7th Circuit Courts of Appeal argue in a brief filed Friday that Sears, Whirlpool and their 12 pro-business friends urging Supreme Court review have engaged in a “fundamental mischaracterization” of the cases. The defendants “totemically” represent the moldy washer classes to be an untenable mishmash of consumers, some of whom own machines supposedly developed the moldy smell and others who have no problems with their machines and have – according to the defendants – suffered no injury. The cases are no such thing, according to the classes’ Supreme Court counsel, New York University professor Samuel Issacharoff.
Instead, the new brief argues, the moldy washer class actions are “hornbook” warranty suits that allege the same cause of action for every member of the classes. When defendants and their amici harp on uninjured claimants, the brief contends, they’re attacking a strawman: Everyone in the certified classes claims the same injury. “These cases allege only a single, uniform defect causing a uniform harm, in which a seller delivered a substandard product that does not perform as warranted and is not fit for its ordinary purpose, and thereby does not satisfy the terms of the bargain,” the brief said. “That is the only liability theory presented, and it applies to all class members.”
There is nothing novel or exotic about classwide claims that purchasers didn’t get what they paid for, according to the brief. “Petitioners’ contention that consumers who got less than they bargained for are legally ‘unharmed’ cannot be reconciled with…well-settled state law that consumers are entitled to receive a product suitable for its ordinary and intended use,” the brief said. “Nor can it be reconciled with this court’s unanimous recognition that claims to recover the benefit of the bargain are the very essence of a warranty action.” According to the classes, there’s no split amongst the federal circuits on certification of consumer warranty classes, no division in the appeals courts about whether the Supreme Court’s ruling last term in Comcast v. Behrend precludes the moldy washer class actions, and no question that class members have constitutional standing to assert their warranty claims, even after the court’s 2013 ruling on “certainly impending” injury in Clapper v. Amnesty International. In short, according to Issacharoff’s brief, there is no reason for the Supreme Court to involve itself in the moldy washer class actions.
Sears, Whirlpool and their amici, on the other hand, have pitched the cases to the justices as a chance to resolve unanswered questions about whether supposedly uninjured claimants can even be part of a class action. Mayer Brown, which represents both washer maker Whirlpool and seller Sears at the Supreme Court, told the justices that unless the Supreme Court overturns class certification rulings by the 6th and 7th Circuits, every manufacturer in America is vulnerable to extortionate class action consumer claims whenever any purchaser has a problem with a product. Proponents of Supreme Court review claim that only a small minority of washing-machine purchasers actually experienced a problem, and those problems were usually resolved through the warranty process. Yet millions of consumers are part of class actions in the 6th and 7th Circuits, exposing Whirlpool (which, according to the class brief, has indemnified Sears) to crushing liability.