Sears, Whirlpool petition SCOTUS

Sears, Roebuck & Company, together with Whirlpool Corporation, filed petitions for writ of certiorari with the Supreme Court Oct. 7, according to global law firm and Whirlpool representative Mayer Brown.

The retailers are asking the Court to review class certifications related to Sears v. Butler and Whirlpool v. Glazer, two similar class action suits that allegedly cast a large umbrella over varied defects involving Whirlpool washing machines. Each certification involved complaints of musty-smelling front-loading washing machines.

Jonathan Selbin, an attorney for Lieff Cabraser Heimann & Bernstein, LLP who is representing consumers in the class action suit, told HCN that the statement released by Mayer Brown was "more than a little hyperbolic" and "riddled with misinformation."

According to Selbin, the class certified in the Whirlpool case is an Ohio-only case that involves approximately 120,000 machines, while the class certified in the Sears case spans six states and fewer than 500,000 washers. This runs contrary to the claim that millions of machines are at issue for a varied assortment of reasons.

"Just because they sold lots of defective washing machines to lots of people does not mean they should get to escape liability," said Selbin. "That is not how our legal system--or justice--works."

Mayer Brown also placed the petition in the context of a larger assault on U.S. manufacturing, though Selbin points out that the washing machines at issue were all made in Mexico and Europe, according to testimony by Whirlpool employees.

"These petitions raise issues that are hugely important to U.S. industry," said Stephen G. Morrison, consultant to Whirlpool and partner in Nelson Mullins Riley & Scarborough LLP. "Manufacturers and retailers are under siege from bloated class actions that go far beyond what the Federal Rules and recent Supreme Court precedent authorize."

According to Mayer Brown, the Supreme Court has a historic precedent of ruling that class certification be contigent upon a single, predominant issue. However, the 6th Court (which ruled on Whirlpool v. Glazer) held that all purchasers may be included in a class action, even if only a small number of units were defective.

"The Supreme Court previously asked the courts of appeals to take another close look at these cases, but the lower courts failed to get the message," said Morrison. "We hope the Court will grant certiorari again. Some lower courts need to understand that unwieldy classes that hide vast differences among the claims and are full of people who didn't experience the supposed problem cannot be certified."

Selbin said that the real issue at stake is that the manufacturer knowingly sold defective appliances to consumers, who should at the very least be compensated for the difference between what they paid and the actual market value of the machines.

"There is a reason that they have twice now failed to convince a single appellate judge on two very conservative Courts of Appeal of the merit of their arguments," he said. "The factual and legal basis for liability is as basic and longstanding as exists: they sold a product they knew was defective (in that it develops mold and cannot adequately clean itself), and did not disclose that defect. As a result, consumers paid top dollar for a washing machine that develops mold and, in many instances, quite literally stinks."

Earlier this year, the Court granted cert and vacated lower court decisions for both cases. In Mayer Brown's view, this is not unlike the Court's March 27th Comcast v. Behrend decision, which made class certification standards a little more restrictive. "If Butler and Glazer go to trial, the classes will be the most expansive in judicial history," it said.

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