A few days ago, we posted about the cert petition pending in the Supreme Court in Whirlpool Corp. v. Glazer. In that case, the plaintiffs allege that their Whirlpool washing machines have a design defect that makes them prone to mold and noxious odors. The Sixth Circuit decision had affirmed class certification. Whirlpool's cert petition posed the following question (among others):
Whether a class may be certified under [Federal] Rule [of Civil Procedure] 23(b)(3) even though most class members have not been harmed and could not sue on their own behalf.
Whirlpool maintains that unless the absent class members prove, at the class-certification stage, that they have suffered the alleged harm, they do not have standing to pursue the class action in a federal court. If that view were accepted, plaintiffs would have a harder time litigating consumer class actions.
The Supreme Court did not deny cert this morning. Rather, it granted the petition, vacated the 6th circuit's ruling, and remanded in light of the Court's recent decision in Comcast Corp. v. Behrend. Comcast reversed a class certification in an antitrust class action on the ground that the plaintiffs' theory of damages liability could not be measured across the entire class and, therefore, did not meet Rule 23(b)(3)'s requirement that common questions "predominate" over individual questions.
Defendants are trying to defang the class action by forcing plaintiffs to prove as much of their cases as possible at the class-certification stage. Keep you eyes on the Whirlpool case with that in mind.