11th Circuit to hear class cert challenge from moldy washer

defendant
(Reuters) Way back in October 2013, the home appliances company Electrolux first petitioned the
11th U.S. Circuit Court of Appeals to permit its appeal of the certification of a class of washing
machine purchasers. At the time, the U.S. Supreme Courts decision in Comcast v. Behrend was only
seven months old. Electroluxs lawyers at Skadden, Arps, Slate, Meagher & Flom cited the decision
to argue that U.S. District Judge Lisa Wood of Augusta, Georgia, should not have granted
certification to two statewide classes of consumers who claimed their front-loading Electrolux
washers were defectively designed with a tendency to develop a moldy smell.
According to Electrolux, Comcast barred certification of class actions in which damages are not
based on classwide proof. Electroluxs petition argued that most of the plaintiffs in the Texas and
California class actions Judge Wood certified hadnt been damaged at all so, under Comcast, class
membership was way too broad. (The plaintiffs, represented by Wexler Wallace and two other firms,
responded that class members were all injured because they all bought washing machines with a
common defect.)
Much has transpired in the surprisingly wide world of moldy washer litigation since Electrolux filed
that petition for interlocutory appeal. The Supreme Court, which had signaled early interest in the
impact of Comcast on moldy washer cases, ended up refusing to grant review of decisions from the
6th and 7th Circuits that upheld the certification of moldy washer liability classes even in light of
Comcast. (The court also denied cert to another washing machine maker rebuffed by the 9th
Circuit.) Whirlpool went to trial in Ohio to defend its washing machines and won a jury verdict
vindicating the design of 20 front-loading models. The Ohio class has appealed, and its lawyers at
Lieff, Cabraser, Heimann & Bernstein have vowed to move forward with other statewide class
actions despite the outcome in Ohio.
The Comcast decision, meanwhile, has been chewed over by several circuit courts in the 17 months
since Electroluxs petition. Electrolux was hardly the only class action defendant to read the Supreme
Court opinion to require plaintiffs to present a classwide damages model in order to be certified as a
class. But as I told you in February, most of the federal appeals courts that have interpreted
Comcast have held that the decision doesnt preclude certification of classes in which class members
damages vary. According to the most recent of those circuit court decisions, a ruling from the 2nd
Circuit in a case involving a wage-and-hour class action by former Applebees employees, the 1st,
5th, 6th, 7th, 9th and 10th Circuits have all said that class members dont have to put forth a unified
damages model to be certified.
The Electrolux plaintiffs kept the 11th Circuit apprised of some of these decisions, including the
Supreme Courts denial of certiorari in the 6th, 7th and 9th Circuit moldy washer cases. Electrolux
continued to insist that the other cases were distinct, or that those other courts had interpreted
Comcast too narrowly. Electrolux could point to only two federal appellate decisions that cited
Comcast to overturn class certification. In a 2014 decision in In re Rail Freight Fuel Surcharge
Antitrust Litigation, the District of Columbia Circuit Court of Appeals sent a class of freight shipping
customers back to the trial court for reconsideration of certification because their damages model
yielded false positives. And in Bussey v. Macon County Greyhound Park, another 2014 case, the 11th
Circuit decertified a class of bingo machine customers because they hadnt tied their damages model
to their theory of the case and hadnt offered a plan to allocate damages among the defendants.

On Wednesday, the 11th Circuit finally decided whether to grant Electrolux leave to appeal and
despite all of the post-petition developments in the washing machine litigation and appellate
consideration of Comcast, the court wants to hear Electroluxs appeal.
John Beisner of Skadden and Edward Wallace of Wexler Wallace declined to comment when I asked
why the 11th Circuit took so long to rule on Electroluxs petition for leave to appeal and why the
court is interested in this case. It could be that the 11th Circuit wants to examine one of Electroluxs
non-Comcast argument, such as its contention that the trial judge erroneously resolved doubts in
favor of class certification. Or perhaps the 11th Circuit agrees with Electrolux that even if the moldy
washer liability classes recertified by the 6th and 7th Circuits hold up after Comcast, the classes
certified to sue Electrolux do not because the judge did not distinguish between classwide liability
and individualized damages.
Class action plaintiffs and defendants should keep an eye out for the 11th Circuits decision here. If
the court splits with the 6th and 7th Circuits on the reach of Comcast in cases presenting very
similar underlying facts, the Supreme Court may have to clarify just what it meant to say in
Comcast.
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