State Bar of Michigan member, former Governor, and current president of The Business Roundtable John Engler writes in a Wall StreetJournal op-ed that the U.S. Supreme Court should grant cert in two cases concerning class action suits, Sears, Roebuck and Company v. Butler and Whirlpool Corp. v. Glazer:
In both Sears and Whirlpool, the appellate courts had originally allowed the certification of an unreasonably broad plaintiff class in litigation involving washing machines. (Sears had sold Whirlpool-manufactured machines.) The courts ruled that a "musty odor" emanating from a tiny proportion of washing machines was enough to put every person who ever purchased one of those machines in a plaintiff class, even owners who had never smelled anything and liked their machines.
Neither circuit attempted to account for varying customer experiences. Only 2%-3% of customers even called Whirlpool and Sears service centers to report a musty smell. And the cause of the scent—whether from improper maintenance, specific washing habits, mechanical failure, or something else—differed significantly from customer to customer.
After the company appealed, the Supreme Court vacated these decisions and sent the cases back for reconsideration under the standards of the Comcast decision. But both appellate courts went ahead and recertified the same classes.
He warns that by "opening the door for every single consumer complaint to become a billion-dollar class action lawsuit, the certain proliferation of such broad, cobbled-together lawsuits will eventually cripple U.S. manufacturing, and not just service-center employment." Emily Bazelon at Slate had a different take on the cases in June:
Whirlpool told frustrated customer after customer to leave the doors of their washing machines open when they weren’t in use and to switch cleaning products. The mold still wouldn’t go away. In 2007, the company started selling a special cleaning product, called Affresh, which was supposed to solve the mold problem. And here’s the second astonishing number: $195 million. The 6th Circuit said that’s the top estimate for the revenue Whirlpool expected Affresh to bring in. It’s kind of genius, when you think about it: keep selling washing machines that grow mold, and then make more money by marketing special soap to kill the mold. Except that Affresh didn’t cure the mold, the court said. Whirlpool made design changes that reduced the mold problem, but even Sears, which sold the machines, says the alterations reduced the mold but didn’t eliminate it, according to another federal appeals court. Yet both Whirlpool and Sears continued to sell these washing machines, at the also astonishing number of 200,000 a year. (You might think customer reviews on the Internet would put a stop to this, but don’t forget all the people who buy goods in actual stores without doing research online.)
She thinks class actions make sense under the circumstances."For a problem like a moldy washing machine, where the damages for each person are relatively small, a class action is often the only way to find a plaintiff’s lawyer willing to invest time in the case. After all, however infuriating it would be to find you can’t keep your washing machine clean, you’re not going to die or lose a limb over it."
