Supreme Court declines to hear latest challenge to the rights of class action plaintiffs

The Supreme Court today declined to hear the trio of “washing machine” cases many had anticipated would present the next forum for the High Court to whittle away at the rights of class action plaintiffs.

Class action defense lawyers had long been calling for the SCOTUS to certify (and overturn) the holdings from the 6th, 7th, and 9th Circuits in the “washing machine” cases, a series of class actions related to a design defect in front loading washing machines that causes mold and foul odor to occur. The cases are Glazer v. Whirlpool Corp., 722 F. 3d 838 (6th Cir. 2013); Butler v. Sears, Roebuck & Co., 727 F. 3d 796 (7th Cir. 2013); Tait v. BSH Home Appliances Corp., 289 F.R.D. 466 (C.D. Cal. 2012) appeal denied by Cobb v. BSH Home Appliances Corp., 2013 WL 1395690 (9th Cir. April 1, 2013). See, e.g.,

This tea leaf reading on the part of the defense bar – that this would be the next in the Wal-Mart, Amgen and Comcast line of cases cutting back on the rights of class action litigants – was presumptively based both on the current Court’s pro-business bend and the fact that when Glazer and Butler were previously up, the Court sent them back to be decided in accordance with its decision in Comcast.

Specifically, the defense bar and the corporate interest they represent (the defendants in Glazer and Butler ­­– Whirlpool and Sears – among them) wanted Comcast to be interpreted to mean that there must be a single damages methodology that encompasses all injured plaintiffs in order for a class to be certified. But that is not what Comcast says nor is it the law in any jurisdiction I am aware of – in fact, the Comcast dissent correctly points out that “recognition that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well-nigh universal.” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1437 (2013)

Instead, Comcast stands for the unremarkable proposition that “a [damages] methodology that identifies damages that are not the result of the wrong” can’t be used to certify a class. Comcast at 1434. That is not what Glazer or Butler attempt to do. Rather, the Glazer plaintiffs are requesting relief for all individuals who purchased the defective machine, whether the defect has manifested itself in their particular machine or not. The argument being that the washing machines are not worth what the Plaintiffs paid for them because the latent design defect reduces their resale value and their potential useful life. The damages theory in Glazer is necessarily tied to the alleged injury in a manner that the damages theory in Comcast was not ­– that is, evidence submitted to the Court will show that the specific alleged latent defect concealed by the defendants (and only that defect) resulted in the Plaintiffs incurring damages in a specific amount (paying an unjustified price premium of X). The 6th and 7th Circuits both got this right and – at least on these facts at this time – the SCOTUS agrees with them.

If the defense bar so wishes, it would not be intellectually disingenuous to argue that “price premium” damages in general are not cognizable, or that they are cognizable in antitrust cases but not consumer cases or that the particular facts of Glazer and Butler do not support those damages (although each argument would likely be wrong). But none of these arguments would find any support in Comcast or, really, in any recent SCOTUS class action jurisprudence. So, while there is no mystery why the Defendants in the washing machine cases sought review of the Circuit Court’s decision, the defense bar’s insistence that these cases should have been heard and reversed on the grounds that they disregarded Comcast seems to me to kind of miss the point.


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