Jessica M. Karmasek Nov. 14, 2013, 4:30pm

WASHINGTON (Legal Newsline) -- DRI: The Voice of the Defense Bar has filed an amicus brief with the U.S. Supreme Court, asking it to review two cases involving front-loading washing machines.

Petitioners in Sears Roebuck and Co. v. Larry Butler, et al. and Whirlpool Corp. v. Glazer, et al. both are seeking leave following opinions issued by the U.S. Court of Appeals for the Seventh Circuit and the U.S. Court of Appeals for the Sixth Circuit affirming certification of class-action lawsuits -- despite the Supreme Court's grant, vacate and remand order to reconsider their prior opinions in light of a consumer class action involving Comcast Corp.

In Sears, owners of Kenmore-brand front-loading washing machines sold by Sears, and manufactured by Whirlpool, sued over alleged mold problems.

In Whirlpool, two Ohio residents bought front-loading washers manufactured by Whirlpool.

Months after their purchases, the plaintiffs noticed the smell of mold or mildew coming from the machines and from laundry washed in the machines. In fact, one found mold growing on the sides of the detergent dispenser. The other saw mold growing on the rubber door seal, despite keeping the machine doors open to dry.

The two filed suit, alleging tortious breach of warranty, negligent design and negligent failure to warn.

In Sears, the Supreme Court vacated the Seventh Circuit's judgment and remanded the case to the federal appeals court.

In Whirlpool, the Supreme Court reversed a ruling by the Sixth Circuit that the consumers could proceed as a group.

After being asked by the nation's high court to reconsider their decisions in light of Comcast Corp. v. Behrend, both circuits affirmed their original decisions.

DRI, which filed a brief with the Supreme Court in Sears in April and filed a brief with the Sixth Circuit in Whirlpool last year, is urging justices to grant review to clarify that courts must look to controlling state law before certifying a class suit under Federal Rule of Civil Procedure 23(b)(3)'s "predominance" requirement.

The defense bar's 24-page brief argues that the lower courts failed to "rigorously analyze" the predominance requirement and affirmed certification of the class-action suits without examining controlling state law and, in the case of Whirlpool, without undertaking a choice-of-law analysis.

Had the circuits properly exercised their duty under Rule 23(b)(3), DRI maintains they would have "necessarily concluded" that common questions did not predominate under applicable state law.

In the defense bar's opinion, the court's review is necessary to make sure that procedural rules are not interpreted so "expansively" that they override state tort principles that are supposed to govern.

Click here to read DRI's full brief.

From Legal Newsline: Reach Jessica Karmasek by email at

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