Jessica M. Karmasek Apr. 9, 2013, 3:45pm

WASHINGTON (Legal Newsline) -- Pro-business groups and defense lawyers are asking the U.S. Supreme Court to take up a case regarding alleged mold problems in some Sears front-loading washers.

In February, Sears filed a petition for a writ of certiorari, urging the nation's highest court to review class certification in Sears Roebuck and Co. v. Larry Butler et al.

The case arises out of claims by owners of Kenmore-brand front-loading washing machines manufactured by Whirlpool Corporation and sold by Sears since 2001 in six states.

The plaintiffs claim that the washing machines contain a design defect that may cause them to accumulate of an excessive amount of laundry residue and emit musty odors as a result.

They also claim that some machines have a manufacturing defect in the central control unit, which could potentially cause machines to display "false" error codes and temporarily interrupt their operation.

The plaintiffs sought to assert class claims for breach of written and implied warranties on behalf of a putative class of all washer buyers in California, Illinois, Indiana, Kentucky, Minnesota and Texas. They did so under Federal Rule of Civil Procedure 23(b)(3), which requires the court to find "that the questions of law or fact common to class members predominate over any questions affecting only individual members."

The U.S. District Court for the Northern District of Illinois denied certification of the odor class, ruling that Rule 23(b)(3)'s predominance requirement was not satisfied because the plaintiffs failed to show that they could prove that all washing machines were defective with common, class-wide evidence.

In the court's view, various design changes reduced the possibility of odor, and that different washer models have different biofilm-limiting designs and features, requiring plaintiffs to prove at trial that each model failed to present excessive biofilm.

However, the court did certify the control unit class.

The U.S. Court of Appeals for the Seventh Circuit affirmed certification of the control unit class but reversed the district court's decision to deny certification of the odor class.

In the Seventh Circuit's view, "[p]redominance is a question of efficiency."

In its petition to the U.S. Supreme Court, Sears argues that certifying a class because it is more efficient to litigate conflicts with the court's precedent.

Pro-business groups and defense lawyers agree.

Last week, DRI: The Voice of the Defense Bar filed an amicus brief supporting Sear's petition.

In its 20-page brief, DRI urges the court to grant review to clarify that courts must undertake a choice-of-law analysis before determining that a multistate class action satisfies the predominance requirement of Rule 23(b)(3).

DRI contends the Seventh Circuit erred in failing to conduct a choice-of-law analysis before finding that common issues predominated over individualized ones.

Had the Seventh Circuit conducted the proper analysis, it would have necessarily determined that variations in state law defeated a finding of predominance, DRI argues.

"DRI has a strong interest in assuring that federal class action rules governing class certification are consistently and correctly applied to ensure that a defendant's right to present its case is not abrogated or hindered by virtue of a class certification decision," it wrote. "The petitioner has shown that the Seventh Circuit's class certification decision violates this principle in a number of ways, but DRI focuses here on one: the court's ruling deprives defendants of their right to present their case by upholding certification of multistate class actions where no choice-of-law analysis has been undertaken to determine whether variations in state law defeat a finding of predominance."

DRI continued, "Left unreviewed by this Court, the Seventh Circuit's decision in this case will have a profound effect on business and individuals who may be subject to these types of suits because it authorizes a trial court to certify a proposed class under Rule 23(b)(3), even where a choice-of-law analysis would reveal that individual issues of fact and law predominate over any common issues.

"This creates the potential for abuse of the class action mechanism."

The Pacific Legal Foundation and Product Liability Advisory Council Inc. filed briefs in the case in March.

The U.S. Chamber of Commerce filed its own brief last week.

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From Legal Newsline: Reach Jessica Karmasek by email at

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