By Michael Hoenig - New York Law
Journal - December 9, 2013
In my December
2012 column I reported on two consumer class action suits
alleging that millions of front-loading washing machines made by
Whirlpool were defective because some customers experienced mold
or moldy odors even though the overwhelming majority of users
did not.1 At the time, a petition for certiorari had
been filed in the U.S. Supreme Court in one of them,
Whirlpool v. Glazer, No. 12-322, seeking review of the Sixth
Circuit's May 2012 decision certifying a class of some 200,000
Ohio residents who purchased a variety of models of Whirlpool
washing machines. The Ohio litigation was a bellwether action
for eight similar cases against Whirlpool involving millions of
purchasers. Additionally, numerous other lawsuits alleging
nearly identical moldy odor problems were commenced against
other washing machine manufacturers and sellers including
Samsung, General Electric, Electrolux, Sears and Miele.
litigation raised monumental questions about proper application
of class action rules, notably the requirements of "commonality"
and "predominance," as well as issues of "standing" to certify a
class of buyers the majority of which never suffered any injury,
my article urged that the Supreme Court should grant certiorari
review. For one thing, the factual record in the case was nicely
developed. Further, the Petition for Certiorari filed on behalf
of Whirlpool and the Opposition filed on behalf of the class
plaintiffs were excellent, thereby teeing up the issues rather
nicely for the Supreme Court to consider.
A second explosive
washing machine class certification decision, Butler v.
Sears, Roebuck & Co.,2 had also burst on the
scene in mid-November 2012. This involved two class actions
brought on behalf of 800,000 purchasers of front-loading,
Whirlpool-made washing machines sold by Sears in six states. One
class action alleged a defect causing musty or moldy odors in
machines dating back to 2001. Another alleged a manufacturing
defect in 2004-2007 models causing false error codes that could
temporarily stop a washer. (A small percentage of washers were
affected by cracked solder pads). In both cases the overwhelming
majority of customers did not complain of musty orders or of
false error codes. Indeed, of the six named plaintiffs in the
Sears case, four had not experienced any mold or odor
problem. Because a petition to review the Seventh Circuit's
momentous decision likewise was headed to the Supreme Court,
that court's review was seen by this writer as "crucial."
Well, the Supreme
Court did grant review in both cases—of a sort. The court issued
what is known as a "GVR" which stands for "grant, vacate and
remand." Essentially, what the court does when it issues a GVR
is to "grant" the petition for certiorari, to "vacate" the lower
court's decision and then to "remand" the case back to the lower
court. In the Glazer Sixth Circuit case, the Supreme
Court issued a GVR order that remanded the earlier decision for
consideration "in light of Comcast v. Behrend, 133 S. Ct.
426 (2013)." In the Seventh Circuit Butler case, the GVR
order also remanded for consideration "in light of" Comcast.
When a GVR order
issues "in light of" a named precedent, what message is being
sent by the high court to the lower court? As the court has
observed, the GVR reflects "substantial doubt on the
correctness" of the vacated decision and a "reasonable
probability that the decision below rests upon a premise that
the lower court would reject if given the opportunity for
further consideration."3 The reference to Comcast
in the Glazer and Butler GVR orders was
significant because Comcast v. Behrend threw out a class
certification in an antitrust case where the plaintiffs did not
establish that a damages model could be applied across an entire
class. The court explained that damages must be "capable of
measurement on a classwide basis."4 In Comcast,
class-wide treatment was held improper because "[q]uestions of
individual damage calculations will inevitably overwhelm
questions common to the class" and thereby defeat the
"predominance" requirement specified in Federal Civil Procedure
Thus, what the
Supreme Court's GVRs seemed to be telling the Sixth Circuit in
Glazer and the Seventh Circuit in Butler is that
those courts needed to reconsider their approaches to class
certification because their rulings presented grave
"predominance" issues. A class may not be certified when
questions involving individual issues requiring individual
resolution will inevitably overwhelm the questions claimed to be
common to the class. How did the Sixth and Seventh Circuit
courts respond to the GVR message? Each circuit panel rejected
the Supreme Court's "hint." They decided that Comcast is
not influential or applicable to the washing machine litigation,
and issued opinions upholding class certification.5
The defendants, respectively, filed petitions for certiorari in
the Supreme Court on Oct. 7. Plaintiffs' Oppositions are due
on remand, a two-judge panel of the Sixth Circuit described
Comcast as having "limited application" and therefore
reaffirmed its earlier decision. Certification of the class was
based on two supposed common questions: whether there is a
defect that proximately causes odor and whether Whirlpool
adequately warned of that defect. Since the district court had
"certified only a liability class" and left "individual damages"
to "subsequent proceedings," the appellate panel viewed this
case as being different from Comcast where the court had
certified a "liability and damages" class.
One major problem
with this rationale is that the two "common" liability issues
the court identified, a possible defect causing odors and
whether adequate warnings were given, themselves bristle with
numerous individualized questions that require individual
determinations. Such individual issues would overwhelm the
too-simply-stated common issues the circuit panel identified and
also would defeat the "predominance" requirement to certify a
class. So, the panel's approach of whisking Comcast away
as a Supreme Court ruling on "damages" only seems wrong.
Further, when the Supreme Court issued its GVR order, it surely
knew that Glazer was a certified "defect" and "warnings"
class. And the court certainly knew the intended effect of its
Comcast holding. If Comcast were only a "damages"
case, why did the court apply that reference to vacate and order
reconsideration of a certified class on liability?
must govern "liability" issues. That's the plain reading of Rule
23(b)(3). If "defect" and "inadequate warnings" are certified by
the courts as class issues, individual issues should not
predominate. But in the washing machine odor claims, they do,
abundantly so. Comcast was a "predominance" message, not
a "damages-only" message. And, when it comes to purported
"odor"-creation, almost by definition, odor is an inherently
subjective fact dependent on a host of factual variables such as
the olfactory capacity of the individual, the particular
environment in which the individual's perception is detected
(e.g., closed or open space), the intensity of the individual's
sensation, and external influences such as the detergent used
(and how much), and so on.
Odor perception in
a given setting, quite simply, is a fact-laden inquiry. For
example, here is what Idaho's Department of Environmental
Quality (DEQ) says about its authority and the regulation of
odors. It defines "odor" in its air pollution control rules as
"the sensation resulting from stimulation of the human sense of
smell." Odor is a sensitive subject "because perception of odors
is subjective. What smells bad to one person may not offend
another. Our sensitivities and reactions to odors are influenced
by personal preferences, opinions, experiences, and the varying
sensitivities of our olfactory systems" (see Idaho DEQ, "Odor
Even when it comes to "health impacts of odors," the DEQ states
that "odors are a complex mixture of gases, vapors and dust."
Any potential health impact would depend upon "the concentration
of odorous emissions as well as the frequency and duration of
In an article, "Is
Odor Measurement Subjective or Based on Science," writer Thierry
Page acknowledges the oft-repeated statement that odor
measurement is subjective. This, in part, is likely "due to the
variation in people's sensitivity to odor or personal
appreciation of different odors." Odor measurement is, in fact,
"a dose-response relationship evaluation of an odorous
substance." The dose-response relationship or exposure-response
relationship, describes "the change in effect on an organism
caused by differing levels of exposure (or doses) to a stressor
(usually a chemical) after a certain exposure time." Says the
author, "It is absolutely valid to consider the odors subjective
in terms of the appreciation of their quality. This belongs to
the taste and experiences of each individual." (http://blog.odotech.com/bid/60027/Is-odor-measurement-subjective-or-based-on-science).
See also E. Peterson, "Old Factories and Olfactory: How the
Subjective Sense of Smell Steers Citations," (http://wfpl.org/post/old-factories-and-olfactory-how-subjective-sense-smell-steers-citations)
(dealing with regulation by Air Pollution Control Districts; to
some extent, smells are subjective).
Thus, a class
action certified by a court to examine whether a "defect" causes
a "musty" or "moldy" odor must, perforce, consider a wide range
of factual variables dependent on the individual, his or her
particular environment, the performance of the washing machine
at a given time, the detergent actually used, the quantity, the
purity or softness of the water used, its temperature, the
quality of maintenance of the machine, its age, the volume of
use, the type of laundry serviced by the machine, and so on.
These entirely individual, subjective issues multiplied by
millions of machines and, in some households, by multiple
users—where most buyers have not even experienced musty
odors—overwhelm the purported "common" issue of "defect" and
demonstrate insufficient "predominance."
In the Seventh
Circuit's Butler case, on remand from the GVR, the panel,
in an opinion by Judge Richard A. Posner, essentially adhered to
its prior decision and held that a class certification on the
supposedly "common issue" of "defect" was justified because
"predominance is a question of efficiency." Thus, "economics of
time and expense" favored certification. Moreover, said the
panel, Rule 23(b)(3) does not impose the "heavy burden" of
showing "common answers" rather than simply "common questions."
But this seems contrary to the Supreme Court's decision in
Wal-Mart Stores, v. Dukes, where the court said "w]hat
matters to class certification is not the raising of 'common
questions'—even in droves—but rather the capacity of a classwide
proceeding to generate common answers."7 The circuit
court also deemed Butler a "very different case from
Comcast" since damages issues are not involved in the
"defect" question. In fact, startlingly, the circuit court
speculated that certifying the single liability class issue
would lead Sears to waive its defenses to damages and "quickly
Circuit's focus on "efficiency" seems to forget that Rule
23(b)(3)'s "commonality" and "predominance" standards, the
latter being "far more demanding," are supposed to guarantee not
only efficiency but "fairness." Thus "predominance" ensures that
common questions "predominate over any questions affecting only
individual members." Notions of so-called efficiency must not,
and should not, eclipse principles of fairness. If, as the
record on certiorari reflects, Whirlpool or Sears have made and
sold machines embracing numerous design changes over the years,
and have improved the products and the warnings and instructions
they gave their customers, those defendants would have a
fundamental right to litigate the liability and damages issues
of each plaintiff claiming to have suffered some sort of "odor"
damage. That means the ability to litigate lots of individual
questions affecting "liability" as well as damages. That would
also mean the right to litigate a host of individual defenses
such as misuse, contributory negligence, failure to follow
instructions for use, statutes of limitations, and the like.
Both the Sixth and
Seventh circuits have eluded to the Comcast message in
the GVR orders and other recent Supreme Court admonitions that
class actions must conform to the rules and meet genuine
predominance criteria. The "defect-issue-only" type of class
certification, essentially articulated merely as, "was there a
defect in the washing machines," would make every consumer claim
of a breach of warranty a viable class action. How, in the name
of "efficiency" have courts created a regime in which coercive,
"bet-your-company" class settlements are thus rationalized? How
have we reached this critical stage in the "class actionization"
mega-class and "copycat" class actions—illustrated by these
"musty" odor complaints—is, in the long run, self-defeating.
Consumers who have no complaints about their machines certainly
are not being helped. They will end up paying higher prices for
future products as the costs of today's behemoth class
litigations are absorbed and redistributed.
The Supreme Court
should grant certiorari review in Glazer and Butler
and provide guidance to the bench and bar why predominance and
fairness do not, and should not, bow to vague notions of
is a member of Herzfeld & Rubin.
1. M. Hoenig,
"Supreme Court Review Sought on Crucial Class Action Issues,"
New York Law Journal, Dec. 12, 2012, p. 3.
2. 2012 U.S. App.
LEXIS 23284 (7th Cir. Nov. 13, 2012).
3. Lawrence v.
Chater, 516 U.S. 163, 167-168, 170 (1996) (per curiam).
133 S. Ct. at 1433.
5. See Glazer
v. Whirlpool, 722 F.3d 838 (6th Cir. 2013), pet. for cert.
filed, Whirlpool v. Glazer, No. 13-431 (U.S. filed Oct.
7, 2013); Butler v. Sears, Roebuck & Co., 727 F. 3d 796
(7th Cir. 2013), pet. for cert. filed, Sears, Roebuck & Co.
v. Butler, No. 13-430 (U.S. filed Oct. 7, 2013).
6. Prof. V.
Vemuri, writing on "Odor," at a University of California site,
says that odor is the "sensation of smell caused when the
olfactory cleft is stimulated by gases and vapors." Seven of the
32 basic odors have been identified positively: camphoraceous,
musky, floral, pepper-minty, ethereal, pungent and putrid. "The
way one perceives odor is subjective; what may appeal to one
person may nauseate another. What may be a pleasant odor in one
context may be revolting in another." Thus, the "aroma wafting
up from a fresh loaf of bread or a fresh pot of coffee carries a
heavenly message to the person getting up from bed, while the
lingering odors from cooking or smoking are certainly not
welcomed by everyone."
7. 131 S.Ct. 2541, 2551 (2011).
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