U.S. SC asked to review 'bootstrapping' in Whirlpool class action

Jessica M. Karmasek Oct. 4, 2012, 12:15pm

La Fetra

WASHINGTON (Legal Newsline) - Appliance maker Whirlpool Corp. is asking the U.S. Supreme Court to review a class action filed against it by hundreds of thousands of consumers complaining of moldy odors in their front-loading washing machines, made by the company.

The Pacific Legal Foundation, a public interest legal organization that -- according to its website -- "fights for limited government, property rights, individual rights and a balanced approach to environmental protection," also is asking the nation's high court to review the case.

In its amicus brief, filed this week in support of Whirlpool, PLF questions whether an injured named plaintiff can "bootstrap" the standing of thousands of unnamed plaintiffs who have suffered no injury.

In the class action, Whirlpool Corp. v. Glazer, two named plaintiffs -- 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.

A federal district court later certified a class comprised of Ohio residents who purchased one of the specified machines in the state primarily for personal, family or household purposes and not for resale.

The U.S. Court of Appeals for the Sixth Circuit affirmed class certification, with proof of damages reserved for individual determination.

"Even under the facts alleged by a plaintiff, at most one-third of those consumers ever suffered an injury," Deborah La Fetra, principal attorney in PLF's Individual Rights practice group, wrote on the foundation's blog this week. "Whirlpool places the number at 3 percent."

La Fetra, who also authored PLF's amicus brief, explains that class actions are an appropriate device to combine lots of similar claims.

However, when legitimate claims are joined with tens of thousands of uninjured plaintiffs, this opens the door "wide" for "gross misuse" of the justice system, she says.

"The judicial economy that justifies the use of class actions in appropriate circumstances does not mean that class actions are appropriate in all circumstances. The Constitution mandates a strong standing requirement," PLF's brief argues.

"And while this Court has addressed the question of named plaintiffs' standing, there is confusion in the lower courts as to the constitutional standing requirements applied to unnamed, uninjured class members.

"As with any case that involves uninjured plaintiffs, the potential for litigation abuse, and waste of judicial resources, is compounded when the issues arises in class actions."

PLF notes in its 18-page brief that the U.S. Supreme Court "has yet" to address important issues related to the factual record that trial courts must allow both plaintiffs and defendants to develop in accordance with due process rights.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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