This is a class action suit alleging warranty, design and failure-to-warn claims involving washing machines. The trial court certified a class despite evidence from the defendant showing the absence of uniformity among machine designs, consumer usage practices, company disclosures and consumer damages. Cases should not be certified as class actions unless the court conducts a rigorous analysis of disputed facts to determine if all the members of the class have common injuries and common issues. A panel of appellate judges affirmed the trial court even though most of the consumers suffered no harm, as long as one plaintiff alleges a defect that potentially could manifest itself in other purchasers' products.
The NAM filed an amicus brief in support of Whirlpool's request for rehearing by all the judges on the Sixth Circuit. We argued that the trial court improperly reviewed only the plaintiffs' theories and did not address the facts or evidence offered by Whirlpool. The appellate court conducted its own review of the facts to find evidence supporting the plaintiff and disregarding contrary evidence. This process violated the Supreme Court's requirement in Wal-Mart v. Dukes to conduct a "rigorous analysis" to determine that the requirements of Rule 23 for class certification are satisfied. Without such an analysis, the ruling should be reversed and sent back to the trial court for reconsideration.
Our brief also outlined a variety of other errors in the appellate court's opinion, including defining the class to include consumers without injuries, adopting a new "premium price" theory of injury, and calling for the recognition of sub-classes of plaintiffs even though there are no individuals who represent such sub-classes.
Class action certification is a critical step in many cases, as the decision to certify a case has a substantial effect on the magnitude of the potential liability. Such decisions should be based on solid evidence that a problem is shared by a class of plaintiffs that all have the same claims and injuries.
On June 1, 2012, the Sixth Circuit took the unusual step of denying our request, along with those of several other amicus parties, to file our brief. Whirlpool moved for reconsideration of that unusual order, because the briefs were timely, involve the nation's leading business organizations, no reasons for the denial were given, the briefs will be helpful to the court, and the court should not convey an unfavorable impression about openness. On 6/12/12, the court granted this motion to reconsider, and granted our motion to file our amicus brief. Unfortunately, on June 18, the Sixth Circuit declined en banc review in this case.